Weaver v Endeavour Foundation  QSC 93
The employer provides employment for people with disabilities. It employed the worker as a senior individual funding manager. As part of her training, she was trained to deal with aggressive people in a variety of situations. This training was provided by external providers, Paul and Claire Sheehan. Once trained, she was expected to train other employees in the techniques. She had done this on six occasions without incident.
On 1 May 2008, the worker was teaching a technique that required her to walk backwards on the balls of her feet in a slightly crouched position while keeping her attention on an aggressor and not where she was stepping. The room was carpeted and she was wearing new joggers. While demonstrating the technique she fell onto her buttocks and back.
She brought a claim for damages for injuries to her lumbar spine, coccyx and depression that was heard by Justice McMeekin sitting in the Supreme Court at Rockhampton.
The worker gave evidence she was trained to move backwards quickly. This was not challenged and was not inconsistent with the Sheehan’s training manual. She argued that the risk of injury arose from the speed at which she was moving backwards and she had been wrongly instructed to move quickly when she should have been instructed to proceed at a slow or moderate pace.
The Judge found that of relevance:
- In assessing foreseeability of risk the employer must take into consideration the shortcomings and idiosyncrasies of the employee in question.
- A reasonable response to risk takes into consideration the magnitude of the risk and the degree of probability of it eventuating along with the expense, difficulty and inconvenience of taking alleviating action.
- An employer has a duty to enforce a safe system of work. It has the power to state what the system of work is, issue warnings and enforce obedience to the system.
- An employer has a non-delegable duty to ensure its employees are properly trained. If it engages another to perform the training and the trainer performs the work negligently, the employer will be liable for the trainer’s negligence even though the employer exercised reasonable care in the selection of the trainer.
Justice McMeekin noted that many employees walk backwards in the course of their work every day throughout Australia. An employer will not generally be liable for a worker tripping as they walk (backwards or forwards) without some other feature being present. The special features in this case were:
- The worker was a middle-aged overweight lady, unused to physical activity which increased the likelihood of a fall and made the potential consequences more serious.
- She did not choose how she walked backwards rather she was directed she was to walk on the balls of her feet;
- She was directed not to keep her attention on where she was to place her feet but on the aggressor;
- She was instructed to perform the manoeuvre quickly.
Had the special features in this case been limited to the first three points, Justice McMeekin would have said this was a reasonable response to the potential risk. The response was made unreasonable by the instruction the manoeuvre be performed at speed. Since the incident, another trainer had taken over the training who directed the demonstrator to perform the backwards manoeuvre slowly and carefully. Such an instruction was a simple and cost-effective measure. It would have reduced both the probability of the injury occurring and the seriousness of the injury.
The Judge accepted that in real life an employee might have to move quickly, but in those circumstances the risk of injury would justify the speed. In training it did not. If there was a need for the manoeuvre to be performed at speed then the demonstration could have been by DVD when the risk of injury would be reduced by the demonstrator being younger and more agile and the conditions being controlled.
Another interesting feature of this case is that the worker had a previous common law claim in 2000 for injuries to her neck and shoulder and a psychological injury. Following that injury she was absent from the workforce until October 2004 when she commenced work with Endeavour. She then worked without problems until 1 May 2008.
The claim had been settled in September 2003 and, at that time, her prospects for return to work appeared bleak. She claimed that the injuries prevented her from ever returning to the workforce and claimed full future economic loss.
In this matter the worker again claimed the injuries completely took away her future earning capacity and claimed full economic loss to age 67. Justice McMeekin noted that in 2003 she had said she planned to work to age 60. The Australian Bureau of Statistics shows fewer than 50% of women work into the 55 to 64 age group and there is a significant falling off after age 64. There was no evidence given to explain why the worker would work beyond age 64.
The Judge found that in 2003 the worker’s perception of pain and disability was influenced by her psychological condition. He noted evidence from the psychiatrists that in such cases a worker’s condition often improves with the resolution of litigation and held this would most likely occur in the present case. He allowed 2 years of complete future economic loss with a small additional amount for a more adverse future than he had assumed.
There was also a claim for paid care. The worker claimed she required eight hours of house cleaning each week. There was no occupational therapists report rather it was based on the worker’s own assessment. Justice McMeekin allowed the claim but discounted it to allow for the impact of the injuries from 2000, the non-work related condition of insulin dependent diabetes and the prospect of recovery after the litigation resolved.
There are a number of points to come out of this judgment:
- It reinforces the nature of the employer’s non-delegable duty of care. That even when an employer engages a reputable and expert company to provide training to its employees, it will still be liable if there is a defect with the training.
- An employer needs to consider the physical limitations of its employees when assigning tasks to them.
- What is a reasonable action in response to a risk in real life will not necessarily be a reasonable action during a training exercise.
- Just because a worker has claimed complete future economic loss at some point in the past does not mean they will be unable to recover future economic loss at a later date although the Court will take into consideration the way in which the previous injury behaved.
- A worker may be able to recover damages for paid care even when there is no formal assessment by an occupational therapist of the amount of care needed.