Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168

The Facts

This trial proceeded before Phillipides J in the Supreme Court at Brisbane on 30 April 2012.  

The Worker was employed by Queensland Rehabilitation Services (the “Employer”), as an Assistant in Nursing at the Carindale Brook Innovative Care Centre. The Worker commenced employment with the Employer in June 2008. The Worker’s claim was premised on the allegation that in February 2009, in the course of her employment, she experienced pain in the neck, left scapula and left arm of which the Employer was aware. The Worker alleged 3 days off work as a result of this injury. The Worker alleged she was required to resume her normal pre-injury duties before she had recovered from the February 2009 injury.  

On 27 July 2009, some months following the Worker’s return to work after the alleged February injury, the Worker alleged she was unreasonably required to facilitate the handling of a resident in preparation for showering. The resident was to be transferred into a shower chair by a lifting device (a hoist). The resident had dementia and limited mobility. The resident had been known to resist attempts to move him by grasping objects and occasionally striking out violently. Although there was a history of the resident resisting transfer the Employer contended the resident did so if he was frightened or worried and there was no suggestion he did this with malevolence or in a way which presented a foreseeable risk of injury. The Worker’s own evidence did not support a finding that she had to use an excessive amount of force against the patient’s alleged resistance when she was handling him.  

The Worker was performing her care duties with the assistance of another Worker. The patient’s care plan, at the time of the Worker’s incident, required two staff to assist the resident with personal care. The Worker alleged that as she was manoeuvring the resident she felt a sharp pain in her neck and shoulder. The Worker alleged she proceeded to lift the resident using the hoist. Whilst the resident was suspended in the sling the Worker alleged she was required to manoeuvre the resident by grasping the sling behind the patient’s back with both of her hands to align the resident with the shower chair before he could be lowered onto it. The Worker alleged that whilst manoeuvring the resident in the sling she experienced further pain in her neck, left scapula, left shoulder and left arm.  

Arguments at Trial

The Worker alleged the Employer was liable for her injuries because:

  1. The Employer should have been aware of the Worker’s special vulnerability to injury after her return to work from the February injury.
  2. The Employer should have provided supervision and support of a senior staff member following the Workers disciplinary meeting (in mid July 2009) regarding her work performance.
  3. The Worker was not provided with training specific in dealing with transferring dementia patients.
  4. The Employer should have provided a third person to assist in the transfer of the patient.

The Employer defended the claim and contended:

  1. There was no evidence that the Employer ought to have taken any further steps after the February 2009 injury (and 3 days off work) once the Worker returned to work with a medical clearance. The Worker by her own admission returned to work without any further symptoms until the alleged incident in July 2009.
  2. Supervision of the Worker would not have made any difference as the Worker simply carried out her work in accordance with what she was supposed to do. There was nothing to suggest she was handling the resident in a way she should not have at the time of her injury.
  3. There was no evidence called by the Worker (expert or otherwise) that the way the transfer was effected was unreasonable.
  4. There was no evidence called by the Worker (expert or otherwise) that a third co-worker should have been involved to assist transferring a patent with dementia,  

The Decision

Phillippides J found there was nothing in the circumstances of the February 2009 injury which would, or should, have alerted the Employer to the Worker having a special vulnerability to spinal injury. The Worker simply reported an isolated occasion of having a sore neck and she was fit to return to work after a few days off. The Worker by her own evidence stated that she experienced a slight ache in her neck and accepted under cross examination she did not experience pain in her left arm in February 2009. The Worker was unable to be clear as to whether she had also experienced shoulder pain. Phillipides J found the Worker’s evidence lacked clarity and at times was inconsistent with her pleaded case. In regard to the Worker’s alleged various breaches of duty of care, namely a lack of adequate supervision, training and assistance, Phillippides J found:

  1. There was no evidence that additional supervision of the Plaintiff was warranted in light of a disciplinary meeting regarding her performance.
  2. There was no evidence that the training the worker received was in any way deficient. Similarly, there was no evidence that any additional instruction or training ought to have been given, or even if further instruction and training was given, how such instruction would have prevented the injury.
  3. There was no evidence that the way the Worker effected the transfer of the patient with a co worker, was negligent, inadequate or unreasonable. Further, there was no evidence that a third worker would have materially reduced the risk of injury
  4. The Workers claim was dismissed with an order the Worker pay the Employer’s (Insurer’s) costs.  

A copy of the Judgment can be found here.