In Tawera v BDS Recruit Pty Ltd & Anor [2014] QDC 167, the Plaintiff ruptured his Achilles tendon by giving an “almighty kick” to a 67kg pile of mortar and cement that obstructed a cabinet door. The court had to determine whether the Plaintiff had been provided with adequate manual handling training and whether a safe system of work had been implemented. The Plaintiff deflated the claim when he acknowledged that his kicking maneuver was not a “common sense” technique to remove an obstruction. Accordingly, the court found that there was no breach of duty by the employer or the contractor and that it was the Plaintiff’s failure to take reasonable care which caused the injury.

Facts

At the time of the injury the Plaintiff was 63 years old and was in the employ of BDS Recruit Pty Ltd (First Defendant), working on labour hire for the Brisbane City Council (Second Defendant). On 22 February 2010, the Plaintiff was instructed to attend to safety matters and cover sharp edges of star pickets with yellow plastic caps.

The Plaintiff began searching various cabinets of an on-site truck for the yellow caps. After trying several with no success, the Plaintiff opened a cabinet situated approximately 8 inches off the floor of the truck, that contained bags of mortar and cement. The Plaintiff was unable to close the cabinet door despite pushing firmly.

In frustration, the Plaintiff lifted his left leg and, while balancing against the side of the truck, gave the bags an “almighty kick”. A loud “snap” was heard and the Plaintiff suffered injury to his Achilles tendon.

Issues

The court had to determine whether the First Defendant was negligent and breached their duty to the Plaintiff by:

  • Failing to provide adequate training or instruction;
  • Failing to properly instruct the plaintiff in the best method of manual handling;
  • Failing to ensure the plaintiff had a safe place of work;
  • Failing to carry out a site inspection and risk assessment to satisfy itself safe work procedures were implemented.

Andrews SC DCJ also had to determine whether the Second Defendant was negligent and breached their duty to the Plaintiff by:

  • Failing to conduct adequate risk assessments of tasks completed by the Plaintiff;
  • Failing to provide a truck in which cabinets were situated at a safe height for manual handling;
  • Failing to provide a truck which would have prevented stored items from moving against the cabinet door.

Findings

The Plaintiff, who was refreshingly frank in his statements to the court, admitted that on the day of the accident he was aware that kicking the bags would not be an appropriate or sensible manual handling technique. The Plaintiff had over 40 years of manual labour experience and had seen diagrams provided by his employer showing the proper method for manual handling. The court found that even if the Defendants had failed to explain safe handling techniques, it would not have had any material effect on the Plaintiff’s conduct.

The Court continued to find that the First Defendant completed appropriate site inspections to ensure a safe system of work for the Plaintiff. The allegation that the First Defendant ought to have identified the Second Defendant was not following its own safe handling policies was rejected.

The Second Defendant had a document that set out the construction safety plan for the project. The document included eight control options to limit the risk of back injury, one of which stated that “bags must be stored at a height where bending of the back is not required”. The court rejected the Plaintiff’s allegation that the bags were stored too low as the Plaintiff would not have been required to bend his back to pick up even the lowest bag.

The Plaintiff was unsuccessful in all his allegations against the First Defendant.

As against the Second Defendant the court rejected the Plaintiff’s submission that there was no risk assessment in relation to his tasks, which he claimed was evidenced by the absence of a “sign on sheet”. The court accepted the council’s evidence that sign on sheets were in fact being completed at the time of the Plaintiff’s accident, but were no longer available.

The court further held the Second Defendants had not breached their control options in that the cabinet containing the bags was at a height suitable for manual handling. The Court concluded that the there was no breach by the Second Defendant.

The court found that the Plaintiff failed to establish liability against the Defendants, but still assessed quantum.  The  assessment  was,  for  the  most  part,  unremarkable,  with  a  total  damages  award  of

$47,122.31.

In discussing quantum, Andrews SC DCJ affirmed that the burden of proof rests with the Plaintiff to establish employment incapacity bringing about an economic loss entitlement. Here, the Plaintiff conceded that the primary reason for incapacity to work since 2012 was a right hip condition, causally unrelated to the Achilles injury. In the absence of evidence establishing incapacity to work resulting from the Achilles

injury, and where the right hip injury was the cause of the claimant’s incapacity for work, the court held that the appropriate assessment of damages would be the amount of the weekly benefits paid to him by WorkCover. This amounted to $23,003.95, which he was obliged to repay with any judgment sum.

Implications

The case confirms the obligations of an employer or host employer is to take reasonable steps to prevent injuries to workers. However, this is not an obligation to prevent all injuries to workers. In this case, the Plaintiff practically admitted his actions were reckless, and the court was not satisfied that training or instructions in relation to safe manual handling would have had an impact on the Plaintiff’s behavior.

Andrews SC DCJ indicates an employee is required to exercise basic “common sense,” and where the Plaintiff acts with disregard for their own safety, a Plaintiff faces significant risks in running an argument an employer or host employer should be held liable, despite the high standard of care owed.