In the case of Micallef v Endeavour Foundation1 the District Court at Innisfail considered the foreseeability of a risk of injury in circumstances when a disability support worker (the Worker), was injured when a young disabled client (the Child) "dived" upon her without warning in a swimming pool.
On 21 February 2008 the Worker, along with a fellow disability support worker took two disabled children to the local swimming pool. After the children exited the pool to be dried off, the Child threw some fruit into the pool. The Worker re-entered the pool to retrieve the fruit when the Child jumped back into the pool and landed on the Worker causing injury.
There was evidence that the Child who "dived" upon the Worker had Down Syndrome and was autistic. The Child was known to have enjoyed being in and around the water. There was evidence that both workers and children were playing a game earlier that involved throwing things in the pool and diving down to retrieve them.
The Child had a history of challenging behaviour and could become aggressive in certain situations. However, there was no history of the sort of action that suddenly befell the Plaintiff on the day of injury.
The Worker alleged the Employer was liable to her for her injuries and sought damages because the Employer breached the duty of care that the Employer owed to the Worker.
The Worker argued:
- The Employer knew the Child was unpredictable;
- The Employer should have provided the Worker with a better knowledge of the Child’s behaviour.
The Employer contended:
- There was no identifiable risk of injury by the Child suddenly and unexpectedly jumping into the pool of which it knew or ought to have known (the risk was not reasonably foreseeable).
- Even if there was an identifiable risk of injury there were no steps that the Employer could have reasonably taken, without having the benefit of hindsight, to minimise that risk of injury manifesting.
Notwithstanding some history of behavioural challenges on the part of the Child, the Court found it was not reasonably foreseeable that the Child would do what he did, when he did.
Accordingly, as the risk of injury was not reasonably foreseeable, the Employer's failure to take steps to minimise the risk occurring did not amount to a breach of the duty of care that the Employer owed to the Worker. The Workers claim failed.
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