Schiliro v Peppercorn Child Care Centres Pty Ltd
[1998] QDC 254
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- Unreported Judgment
- Appeal Determined (QCA)
- Schiliro v Peppercorn Child Care Centres Pty Ltd[1998] QDC 254
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Schiliro v Peppercorn Child Care Centres Pty Ltd[1998] QDC 254
Schiliro v Peppercorn Child Care Centres Pty Ltd[1998] QDC 254
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 532 of 1997 |
[Before Brabazon QC DCJ]
[Schiliro v Peppercorn Child Care Centres P/L]
BETWEEN:
LISA MARIE SCHILIRO | Plaintiff |
AND:
PEPPERCORN CHILD CARE CENTRES PTY LTD | Defendant |
JUDGMENT
Catchwords | |
Judgment delivered: | 18 September 1998 |
Counsel: | Mr I Molloy for the plaintiff |
Mr B Hoare for the defendant | |
Solicitors: | Shepherds Lawyers for the plaintiff |
O'Mara Patterson & Perrier for the defendant | |
Hearing Dates: | 30 & 31 July, 7 August 1998 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 532 of 1997 |
BETWEEN:
LISA MARIE SCHILIRO | Plaintiff |
AND:
PEPPERCORN CHILD CARE CENTRES PTY LTD | Defendant |
REASONS FOR JUDGMENT - JUDGE BRABAZON QC
Delivered the 18th day of September 1998
This is a claim for damages by an employee against an employer. Both liability and the amount of damages are in issue.
- 1.The Plaintiff
Ms Schiliro was born on 24 March 1971. At the end of 1988 she completed Grade 12 at school, when she was seventeen years old. Her first job in 1989 was in an office performing typing and clerical work. She worked with the one employer for about two years, during which time she also attended a training course in clerical skills. She then worked as a nursing aide in a nursing home from mid 1990 though she had no particular training. She was there for about six months.
During her work in the nursing home she hurt her back when she and another employee were attempting to lift a patient or patients, and their actions were uncoordinated. She had a week off work as a consequence of that incident. The Form 5 dated 21 August 1990 recorded a “Back strain - some sciatica (right side)” (see Exhibit 8). The form records that the back problem related to lifting on 20 and 21 August 1990. She had no problems with her back before that incident. She was treated by her general practitioner, and saw a physiotherapist on three occasions. She then returned to work, and had no further problems with her back.
She left the nursing home position in late 1990 and worked as a dental assistant, then as a casual receptionist, and then again as a nursing assistant and men as a personal care assistant in a hostel. In October 1994 she started work as a child care assistant at the Browns Plains Child Care Centre. It was a full time job. She helped look after children from three years to five years of age. She played with the children, cleaned up her room, prepared rooms for the children and helped the group leader. Her group leader was Ms Simone Miles, who was also the assistant director of the Centre. The director in charge was Ms Megan Sepin. She had to lift children up from time to time during a day's work - the biggest were five year olds. She also moved tables in the room into different shapes, and would carry the play gym equipment from a shed outside. None of those activities caused her any problems with her back. There is no evidence to suggest that she had difficulty carrying out her duties.
Ms Schiliro is 166cm tall. By early 1996 she weighed about one hundred kilograms. She took no exercise, apart from that involved in day to day activities, including her job. Her hobby was using a computer at home. She did not play any sport. By January 1996, Ms Schiliro was able to carry out all aspects of her job as a child care assistant. Her back had not troubled her for more than five years. She was overweight, and unathletic, but there is no suggestion that those characteristics affected her capacity and efficiency at work.
Ms Schiliro was understandably anxious and nervous as a witness - at one stage she burst into tears. Even bearing that in mind, she was not an impressive witness. Her evidence should be assessed with caution. Not surprisingly the recollections of all the witnesses were often inconsistent - memories had faded and events had been reconstructed.
- 2.Her Workplace
The Centre is illustrated in the photographs. There was a single storey building containing the usual rooms and offices. The rooms opened onto a verandah which then led onto an outdoor play area covered with green artificial turf. That area was securely fenced. At the end there was a small shed to hold equipment. In the middle of the playground space there was equipment for the children to play on - a wooden “fort”, slippery slides, rope netting and used tyres for climbing on, and a “suspension bridge” from one platform to another. The fort is the wooden structure shown in the photographs in Exhibit 3. In substance, it is a timber platform raised a little more than a metre off the ground. A ladder, the tyres, the netting, a slippery slide, and the suspension bridge are attached to it. It is held up by four poles stuck into the ground.
Underneath the fort was the children's sandpit. The sand was meant to be contained by the timber barriers screwed onto the bottom of the four supporting posts, at ground level. See Exhibit 3. The whole of the wooden equipment was surrounded by another log barrier which enclosed it in an irregular manner. That larger enclosure was also covered with the artificial turf.
Inevitably, the children's play meant that sand found its way from the confined sandpit below the fort onto the surrounding turf. Such a result is illustrated in the photographs, Exhibit 3. For much of the time that Ms Schiliro worked at the Centre, the sand was allowed to accumulate on that larger area. It then looked untidy, and leaves fell into the sand. Sometimes efforts were made to move the sand by hosing it, or sweeping it away from the sandpit. The staff were not told to put it back in the sandpit. New sand would be brought in to fill up the sandpit. Ms Schiliro did not do any work in connection with the sand or the sandpit.
- 3.The Defendant
The defendant is a company in the business of running a number of child care centres. It bought the Centre in about December 1995. A number of the staff were kept on, including the plaintiff. The actual takeover was before Christmas 1995.
Mr M R Gordon was a director of the defendant company. After taking possession, he made an effort to put the administrative records in order. On a Saturday or Sunday, he went to the Centre and did some physical work such as cleaning out the gutters. He noticed that there was sand over the turf so that “It looked a bit like a beach”. When he was there on the weekend, he and his partner cleaned the sand up. They put the sand back into the sandpit. Their efforts completed some tidying up by the staff, who had hosed the sand into a depression in the artificial turf.
Mr Gordon then gave an instruction to the director or assistant director of the Centre, to the effect that the sand had been tidied up, and he expected it to be kept that way. That is, he wanted the sand to be kept in the sandpit under the fort. This direction was not accompanied by any threat - he did not suggest that a failure to keep the sand in the sandpit would result in anyone being dismissed. He did not direct, how, or by whom, the work was to be done.
The defendant had contracts in place to cover the maintenance and gardening work at its child care centres. If the staff identified work that needed to be done, then a contractor would give a price for it, have the price approved by management, and then come back and do the job. Contractors provided their own tools. As soon as this Centre was acquired, a gardener was retained to come and do the mowing.
- 4.Ms Schiliro's job
The defendant also introduced its own staff handbook to the Centre - see Exhibit 2. With regard to direction, it records that:
“Richard Serisier and Michael Gordon are the co-owners of Peppercorn Child Care Centres and head the management team. Heather Wilson is the group manager implementing policies and procedures. Each centre is autonomous with the director who is responsible for the day to day running of the centre. In the director's absence responsibility is assumed by an assistant director.”
The handbook sets out the job description for each level of employee. With regards to a “child care worker (assistant)” it sets out twenty duties which include the following:
“To help provide an environment that is both safe and stimulating indoors and out.
To ensure the environment is clean through general cleaning duties.
Assist the group leader in planning and implementing the program by observation and preparation of resources.
Assist the group leader ensuring that the program reflects the diverse society that we live in.”
With regard to safety procedures, the handbook required that:
“All staff must ensure that their rooms and the outside environment is safe and free from hazards at all times.”
- 5.Instructions about the sand
At least by 16 January 1996 a good deal of sand had again escaped from the sand pit, and was scattered about the surrounding turf. Ms Miles made an effort to hose it into concentrated areas, particularly towards the scramble net in front of the sandpit, where the sand would have been about three or four inches deep. The sand remained wet - it also rained on 16 January.
Ms Miles had received Mr Gordon's instructions, that the sand had to be put back into the sandpit. She did not recall the exact words of the instruction. She thought that it had to be put back “any way possible”. In turn, she gave a general instruction to the staff, that the sand was to be put back into the sandpit. It was an instruction to all the women who worked there at the time - it was not directed to any particular staff member. Apart from the hosing, she did not do any of the work herself.
Ms Amanda Jewel was a group leader at the Centre. On the morning of 17 January Megan Sepin spoke to her about the sand. She asked her to move the surrounding sand and replace it into the sand pit. Ms Jewel declined to do the work, saying that she had a lower back problem, and that the work would aggravate it. Ms Sepin already knew that Ms Jewel had a lower back problem, and Ms Jewel reminded her of that at the time. Ms Sepin accepted that explanation - there was no suggestion Ms Jewel's job was at risk if she did not do the work.
Ms Schiliro was outside looking after the children. She had been at work since about 8 a.m. Simone Miles spoke to her and asked her to do the work. It is likely that Ms Miles handed her a spade. Ms Schiliro recalled that she had seen other people doing similar work the day before, but that recollection may be mistaken. Other witnesses recalled that the work was in fact done on the day that Ms Schiliro hurt her back. It is impossible to be confident about the true position. It would not seem to be important in any case. It is very likely that moving the sand into the sandpit did take place on several occasions - this may have been the first. It is quite possible that Ms Schiliro saw the older children playing at moving the sand the day before.
On the day before, when Ms Schiliro knew about the general instruction to put the sand into the sandpit, she grumbled to one of the other staff members that they should not have to do the work, as it was not part of their job. She did not complain to anyone in authority.
Ms Schiliro said in evidence that she did not refuse the request to do the work, because she might lose her job. However, there was no reason for her to have that fear, and that part of her evidence should not be accepted. Even if she had thought that, it would not have been a reasonable belief.
Secondly, Ms Schiliro gave some rather half-hearted evidence, to the effect that she was afraid that she might hurt her back. I do not accept that she had such a fear. On the contrary - she had never had back trouble while working at the Centre, and that was not one of her concerns. Her concern was that she was being asked to do physical work which she felt was not part of her job description.
The other staff occasionally did work to improve the facilities at the Centre. Ms Miles and Ms Martin used the spade to dig about 30 tyres into the gardens. The staff used to sweep the verandah, and rake leaves off the grass. This request to Ms Schiliro reasonably fell into the category of “general cleaning duties” which were part of her job description.
- 6.Moving the Sand
As it happened, she proceeded to move the sand by using a children's wheelbarrow. It is not clear how she came to use it. No particular attention was paid to that question at the trial. Ms Martin and Ms Schiliro may have simply thought it was a useful way to move the sand, or they may have seen other staff members using it for that purpose. Ms Schiliro recalled that Ms Miles had used it, but Ms Miles denied that. The most that can be said with confidence is that those in charge of the Centre acquiesced in the methods adopted by the two young women to move the sand more towards the other end of the play equipment. (The barrow is shown in Exhibits 9 & 14). There is no evidence to suggest that she was instructed to use it. She was not instructed to move the sand in any particular way, or by any particular deadline. Indeed, she was given no instructions of any kind about how she might, or should, do the job. She did not ask for any instructions.
It is probable that Ms Schiliro was not used to using a spade. She said in evidence that she had never used a spade before - she had helped her parents by raking in the garden, but had gone no further. She had never planted a tree or shrub. She had seen her father use a shovel. It did not occur to Ms Miles to ask about her experience.
There was a controversy at the trial, as to whether or not she used the wheelbarrow alone, or used it in turn with Ms Lisa Martin. I am satisfied that Ms Martin's evidence should be accepted, to the effect that she and Ms Schiliro both used the wheelbarrow and took it in turns to shovel and push the wheelbarrow. Ms Jewel's evidence, to the contrary effect, should not be accepted - her recollection of other events was also faulty.
Ms Martin and Ms Schiliro took it in turns to shovel the sand into the wheelbarrow, and then push the wheelbarrow to the sand pit, and empty the sand into it. They took the sand mainly from the area in front of the scramble net, though it seems that some of it was gathered from some metres away. Ms Schiliro pushed the barrow with sand in it around the sloping ramp made of tyres, past the wooden ladder and past the slippery slide. She then dumped the sand in a place that can be seen in the photographs in Exhibit 3 - as one looks through the scramble net it is the almost square space to the right of the slippery slide. Ms Schiliro explained that she pushed the barrow up to the log lying on the ground, and then tipped the barrow upright, so that the bar in front of the wheel pivoted on the log, allowing the sand to fall into the sandpit.
That work continued for about 25 minutes. Ms Schiliro said she moved about eight loads in the barrow to the sandpit. She did not notice any discomfort in her back. Ms Martin did not notice anything unusual about the way Ms Schiliro performed her work. Ms Martin found the work tiring but not difficult. The sand was wet, and not hard to shovel. Ms Schiliro agreed that the work was not physically strenuous, but she did find it “uncomfortable”, when she was bent over.
When the job was finished at about 9:25 am she stood up, and then felt sudden pain in her back. The pain radiated down her legs. She had never experienced that pain before. She slowly walked to the group manager Ms Heather Wilson and reported what had happened. She may also have spoken to Ms Miles about it.She managed to drive her car to take some children to a movie. Driving was painful. It got worse. She had severe pain when she returned to the Centre. She told somebody in authority that she was going to the doctor. She left the Centre, and has never returned.
- 7.The Work and its Risks
There was a dispute about the actual spade used by Ms Schiliro. The defendant contended that it was a steel spade with a wooden handle, ending in a plastic “D” grip. That spade is illustrated in the photograph, Exhibit 9. Ms Schiliro said that she used a spade of similar dimensions except that the “D” grip was broken off. Witnesses variously referred to an intact spade, or one with a broken handle. The dispute is of no significance, as there was no relevant functional difference between the two spades. If it be important, I accept Ms Schiliro's evidence that she used a similar spade except that the handle at the top was broken off, and that the blade was narrower.
Ms Schiliro estimated that the blade of the shovel was about half covered each time she used it to pick up the sand. She said that she used her left hand closest to the blade, and her right at the top of the shovel. The load on her left hand would have been about 8.5 kilograms. (Exhibit 12 - p3).
The barrow had a plastic bucket with a 20 litre capacity. When filled with damp sand, the force to lift it by its handles was found to be in the order of 14 kilograms (Exhibit 12 - p4). The barrow had an overall length of 840mm, while its hand grips when the barrow was standing on the ground, were 30cm above the ground. Ms Schiliro filled it close to the brim.
The other implement used was a rake - the evidence contains no description of it. Both Ms Schiliro and Ms Martin raked and shovelled the sand. The shovelling necessarily meant that she had to bend over. The small size of the wheelbarrow also meant that she bent over when lifting and wheeling it. When she arrived at the sandpit, she then had the opportunity to straighten up while tipping the sand out of the barrow - she did not have to bend again to go under the floor of the fort. Ms Schiliro said in evidence that she maintained that stooped posture for the whole time she moved the eight loads. Indeed, it was her evidence that she was the sole user of the shovel and the wheelbarrow, while Ms Martin helped by raking up the sand. However, I accept Ms Martin's evidence to the effect that they both used the wheelbarrow.
While it is clear that she had to bend while shovelling and using the barrow, it is impossible to accept her evidence that she remained constantly stooped during the whole job. The probabilities are that she stood up from time to time while moving about. Indeed that is what she said to Mr O'Sullivan (Exhibit 12, p6). She and Ms Martin talked while doing the work. Children were playing in the sand with little shovels and she looked around for them. It is unlikely that she concentrated entirely on moving the sand.
It may be accepted, as she said, that the barrow full of sand tended to tip from side to side as she was wheeling it along.
Mr O'Sullivan, in his report, noted that a load of eight kilograms in one hand was a reasonable load for a female, particularly when working in a sustained bent posture. He recognised that lifting some 18 kilograms was unlikely to be a problem for a female when handled in normal circumstances, but went on to say that it might pose a problem if handled in the midst of prolonged bending and twisting. All things considered he thought that the task Ms Schiliro under took, particularly with the loaded barrow, contained unacceptable risks. Those risks could have been avoided by having someone else do the work (of course) or by giving her a larger wheelbarrow (which would have avoided the need to bend so much) and by training her in the use of a shovel. He also suggested that rotating the task would minimise the effects of fatigue.
Ms Schiliro was not offered any training in the use of a shovel. She did not say that she was completely inexperienced in its use. If her superiors thought about it at all, they assumed that she would be able to use a shovel.
Dr Low was called for the defendant. He had the advantage of being both a qualified medical practitioner, and an expert in safety matters. In short, he thought that the risk was either non-existent, or so low as to not be worth troubling about.
Dr Low's evidence was a good deal more persuasive than the evidence of Mr O'Sullivan, who appeared to be struggling to assemble a respectable argument based on an the above set of circumstances.
It should be noted that neither expert suggested that Ms Schiliro's overweight and unathletic condition itself should have been an indication that she was not capable of doing the work. It was not suggested that an employer should have realized that she was particularly prone to back injury. Accordingly, that was not a particular of her case against the defendant. Insofar as the Code of Practice - Manual Handling makes reference to personal characteristics of an employee, then that is not a matter to be taken into account in this case.
- 8.The Code of Practice
An examination of the impact of the Queensland Code of Practice - Manual Handling was central to the evidence of both Mr O'Sullivan and Dr Low.
Essentially, Dr Low relied upon the American NIOSH standard, and the Code of Practice, in saying that this task was well within the capacity of Ms Schiliro. He would not have recommended an alternative system of work.
In testing Dr Low's conclusions, regards should be had to the Code of Practice. In particular:
- (a)Paragraph 2.1 recommends consultation between employer and employee during risk assessment of manual handling tasks. Admittedly, there was no consultation about any risks associated with moving the sand, particularly in the way that Ms Schiliro was doing it.
- (b)Paragraph 2.10 refers to the general principles for reducing risks associated with manual handling, such as:
- (i)Minimizing the lifting and lowering forces exerted.
- (ii)Avoiding the need for bending, twisting and reaching movements.
- (iii)Reducing pushing, pulling, carrying and holding.
If there was a risk, then those general principles should have been taken into account.
- (c)Paragraph 2.20 requires employees newly engaged on a manual handling task to allow a period of adjustment to build up the skill and ability demanded by that task. In this case, the question is - did the use of the spade and wheelbarrow demand that the principle be observed, or were they so simple that sufficient skills could be assumed?
- (d)Paragraph 3.14 - a risk assessment particularly involves identifying frequent and prolonged bending down. In this case, it can be confidently found that the task was not sufficient to qualify as a “frequent or prolonged” one.
- (e)The “individual factors” on page 17 were referred to - but they are not an issue in this case.
- (f)Paragraph 4.1 requires a risk assessment of all manual handling in workplaces. The relevant matters are set out in paragraph 4.2. The question here is this - was there a need for a risk assessment at all, or was the task so simple and so easy that it was not called for?
- (g)Paragraph 4.21 - the weight of any load which is manually handled should be considered in relation to other key factors such as the position of the load relative to the body, the distance moved, and the characteristics of the load. Those matters have to be taken into account, in assessing the difficulty of moving the wheelbarrow with sand in it.
- (h)Paragraph 4.37 - employees should have the knowledge and ability required to perform the task. A mismatch can cause an increased risk of injury.
- (i)Paragraph 4.38 places an emphasis on the appropriate training. In this case, should Ms Schiliro have been given instructions about how to do this job, because of 4.37 and 4.38?
In general, I accept the evidence of Dr Low - the risk was so low, and the task so simple, that no further steps should have been taken to avoid the injury which did occur.
- 9.The Issues
Ms Schiliro asserts in this action that she suffered a back injury for which she is entitled to be compensated by an award of damages.
The plaint of 12 February 1997 relies on the employment of the plaintiff, to impose separate duties on the defendant - duties arising out of the terms of a contract of employment, duties owed at common law, not to be negligent towards her, and duties arising out of the obligations imposed by the Workplace Health & Safety Act 1995.
Paragraphs 4 and 6 assert the basic contractual and common law duties:
- (a)That the defendant had to take all reasonable precautions for her safety while working, so as not to expose her to a risk of injury of which it knew, or ought to have known.
- (b)To provide and maintain suitable plant and equipment and working conditions to enable her to work in safety.
- (c)To ensure that her place of work was safe and to provide and maintain a proper and safe system of work.
- (d)Not to subject her to unnecessary risk of injury.
Particulars are given of those breaches of duty. It is apparent that the particulars are generic ones, and do not relate to this particular incident.
Paragraph 7 raises breaches of the obligations under the Workplace Health and Safety Act 1995:
- (a)Failing to ensure the workplace health and safety of the plaintiff, by failing to provide adequate and sufficient plant and equipment or implement control measures in contravention of s22, 23, 24 and/or 27 of the Act.
- (b)By reason of the particulars relied on with respect to the contractual and negligence claims, failing to ensure the workplace health and safety of the plaintiff contrary to s28(1) and/or (2) of the Act.
During the course of the trial, when asked about the particulars of his client's claims, Mr Molloy of counsel responded by saying that the particulars were to be found in the evidence of Mr O'Sullivan, a safety and ergonomics expert called on behalf of the plaintiff. It appears from his report, Exhibit 12, that the matters actually relied on by the plaintiff to establish her case were these:
- (a)Carrying the sand in the child's wheelbarrow involved:
- (i)Sustained significant bending of the spine.
- (ii)Repetitive bending and twisting.
- (iii)Potentially significant weights handled.
- (iv)Potential lifting at a distance from the body.
- (v)Apparent sudden forces due to the barrow tipping over.
- (b)Ms Schiliro's use of the spade at some distance from her body mean that there was increased stress on the back.
- (c)The job involved a number of inappropriate risk factors including:
- (i)Repetitive bending and twisting movements.
- (ii)Bending to one side to lift an object.
- (iii)Lack of adequate space for all the movements.
- (iv)Frequent manual handling.
- (v)Loads handled above shoulder height or below mid thigh height.
- (vi)Objects which were difficult to grasp or hold.
- (vii)Handlings objects which are unstable or slippery, which block the view while being handled, which are more than 50cm wide in a direction across the body, or more than 30cm long in the direction away from the body, or where any two dimensions exceeds 75cm.
- (viii)Tasks performed in a confined space.
- (d)Counter measures to combat the above risks might include:
- (i)The use of a standard wheelbarrow, or a gardener's wheelbarrow.
- (ii)Provision of a long handled shovel, and training in its use.
- (iii)Improved access to the sandpit.
- (iv)Rotating the task between a number of workers.
- (v)Transferring the task to a stronger person such as a gardener or tradesman.
For the defendant, an allegation of contributory negligence was pleaded. However, no mention of contributory negligence was made during the address by counsel for the defendant, and it must be taken to have been abandoned.
The defence contained no plea, to the effect that the defendant had taken steps which would see it discharged of any statutory obligation owed to the plaintiff or that it had a defence to the claim for breach of statutory duty. The absence of such a pleading should make no difference to a just result in this litigation. The trial was conducted on the basis that such matters were in issue-Hardy's case and Roger's case (see below) were both referred to. They both deal with the burden of raising such issues. Counsel did not overlook the substance of those issues.
- 10.The Injury
It is notorious in personal injury litigation, that painful backs present particular difficulties of diagnosis, prognosis, causation, and the assessment of damages. In this case, there is evidence from three very experienced medical practitioners. I have re-read their evidence. It is probable that the true position is this:
- (a)Ms Schiliro had a minor back problem in 1990. Whilst she had no continuing symptoms for more than five years, it should be seen as some indication of the possibility of a further episode of back pain.
- (b)By January 1996, Ms Schiliro was considerably overweight, and physically unfit. She lifted children and equipment as part of her job. She was considerably more at risk than a person of normal build and fitness, of getting painful symptoms in her back.
- (c)The medical practitioners found no signs of early degeneration in her spine.
- (d)The medical practitioners found, with the assistance of the x-rays, that there was a small disc bulge at L5/S1. That was sufficient to be the source of painful symptoms.
- (e)Many people have a weakness or defect in their backs, so that some minor event, such as picking up a small object off the floor, can trigger off painful symptoms caused by an injury to an inter-vertebral disc.
- (f)Shortly after her work with the spade and the wheelbarrow, she experienced painful symptoms in her back and down her legs. As a matter of commonsense, it should be found that the work she did was the cause of those symptoms. They might have been coincidental with her work, but it is more likely that they were caused by it.
- (g)It does not matter greatly if her symptoms were caused by “a derangement of the lower discs in the lumbar spine” (Dr Pentis) or “by damage to the facet joints at that level of the spine” (Dr Low), or an intradiscal rupture (Dr Morris).
- (h)The relatively undemanding nature of the work with the spade and wheelbarrow, coupled with the prior episode in 1990, her obesity, and her lack of fitness, lead to the conclusion that she had a weakness in her spine, which suddenly produced symptoms on 17 January 1996. That can be described as a “derangement” or “a mechanical injury” (Drs Pentis and Low, respectively).
- (i)Likewise, the evidence of Dr Morris should be accepted, to the effect that she was a candidate for the emergence of painful symptoms in her back, in any event.
- (j)It is impossible to say with any precision when her symptoms were likely to be precipitated, in any event. That could have happened at any time
- (k)Because she was at risk of such an injury in any event, she is entitled to be compensated for the contribution that this incident made to the arrival of the painful symptoms. Put another way - her claims have to be discounted because of the high probability that she would have had difficulty with her back, in any event.
- (l)As a matter of judgment, it should be found that the plaintiff's complaints should be discounted to such an extent, that a further year free of symptoms could have been expected.
- (m)The usual course, in such patients, is to see a gradual recovery over a period of six months to two years. Ms Schiliro has recovered to some extent, but complains of continuing symptoms.
- (n)Dr Pentis observed an inappropriate sign when examining her - her straight leg raising was said by her to be more limited on the left side than would be expected from the restriction that she really had. She has also had the expectations and stresses of this litigation to cope with. Dr Low expressed the view that her painful symptoms have been perpetuated because of “psycho-social factors”. It should be found that the continuing severity of her symptoms will be less once this litigation is behind her.
- (o)Her present disability has been variously expressed at 10% loss of efficient function of her spine as a whole (Dr Pentis) to a disability of 15% of her body (Dr Morris). Each thought that she should continue to improve. Dr Pentis thought that there might be some improvement in the future. Dr Morris expected that the final level of disability would be between 5% and 7% of her spine. Overall, it should be found that she will have some continuing weakness and occasional painful symptoms in her back.
- 11.The Duty of Care
The issues set out depend on the established duty of care owed by an employer to an employee. A concise summary of the essential aspects of that duty is contained in the judgment of the Queensland Court of Appeal in Loveday v Woolworths (Queensland) Ltd (No. 40 of 1993 judgment 17.06.94 unreported):
“The duty placed on Woolworths was that of a reasonably prudent employer and there was a duty to take reasonable care to avoid exposing its employees to unnecessary risks of injury: Hamilton v Nuroof (W.A.) Proprietary Limited (1956) 96 CLR 18 at p25. A risk of injury, which is unlikely to occur, may nevertheless be plainly foreseeable, because the concept of a risk of injury being “foreseeable” is not a statement as to the probability of its occurrence but merely an assertion that the risk is not one which is far-fetched or fanciful: Wyong Shire Council v Shire (1980) 146 CLR 40 at p47. A risk of injury is unnecessary if, by the adoption of some reasonable form or precaution or safeguard, it could have been eliminated or minimised: Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at p370. In taking care to avoid injury to an employee, the employer is bound to have regard to any risk that may occur by reason of an employee's inadvertence, inattention or misjudgement in performing an allotted task: McLean v Tedman (1984) 155 CLR 306 at p312.”
The reference to Wyong Shire Council v Shirt is a reference to the well known passage in the judgment of Mason J of the High Court:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience with taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”
It recent times, it has been emphasised that the principle expressed by Mason J has to be applied with some care. In Jaenke v Hinton 1995 Aust Torts Reports 81/368 the Queensland Court of Appeal was called on to consider the claim of a person delivering milk to a house. She was injured by tripping over a garden hose lying on a lawn in the early hours of the morning. It was explained that the finding of negligence has to satisfy two steps. First, the risk to be foreseen by a reasonable person must be other than a fanciful or far fetched risk. Secondly, if there is a duty because the risk is not far fetched or fanciful, it is necessary to consider what should be done about that risk. Not every risk has be eliminated. As the Court of Appeal pointed out:
“There is a qualification - it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”
(“Neighbour” was used in the traditional way in the law of negligence, meaning someone who might be hurt by a failure to take reasonable care.)
The question of an employer's negligence was also considered by the Queensland Court of Appeal in The Roman Catholic Trustee Corporation for the Diocese of Townsville v Finn (1997) QdR 29. There, Mr Justice Williams, (with whom Mr Justice McPherson agreed), said this:
“There has been much discussion, particularly in the High Court in recent years, with respect to the law of negligence: clearly it has developed in a number of significant respects as a result of decisions such as Wyong Shire Council v Shirt... but the fundamentals have not altered. Where a relevant duty is imposed upon a person, the obligation is still to take reasonable care, and the scope of the duty is limited to the area of foreseeable risk. If at the material time a reasonable employer, taking all reasonable care for the safety of his employees, would not have foreseen the particular injury to the employee which gives rise to the action, negligence cannot be proved. It is important when considering evidence said to be relevant to such issues to have regard only to what was considered reasonable, and what was foreseeable, at the material time. It is easy for both employers and judges to be wise after an event, but hindsight cannot convert what was at the material time the taking of reasonable precautions into a failure to discharge the duty of care.
Windeyer J said in Vozza v Tooth & Co Ltd (1964) 112 CLR 316-318:
“It may seem that, because an accident has happened and a worker has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. The statement of the common law require that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils.... It has also generally be recognised, where the employer has knowledge or at least the means of knowledge of a particular susceptibility to injury in the employee, then that will effect the steps which must be taken in order to comply with the obligation to take reasonable care. The following statement should be limited to the situation where the employer had knowledge of, or the means of knowledge of the susceptibility:
In my opinion there is no basis for imposing upon the employer the additional burden of taking care not to expose a particular employee to risks resulting from his inherent weakness. His duty is to act with reasonable care to protect his employees from unnecessary risks. He is not required to enquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness.”
With the qualification I have referred to, that is still an accurate statement of legal principle. Further, in my view, there is nothing in the Workplace Health and Safety Act 1989 (including Section 9 thereof) which would require an employer to take precautions against a risk which was wholly unforeseeable. Because of that, the (employee) cannot improve his position by relying on that statute.
- 12.Breach of statutory duty
Ms Schiliro also relies on a breach of the statutory duty placed on the defendant, according to the Workplace Health and Safety Act 1995. It is necessary to set out, in logical order, the statutory provisions which might apply to this case:
Section 28(1) - An employer has an obligation to ensure the workplace health and safety of each of the employer's workers at work.
Section 22(1) - Workplace health and safety is ensured when persons are free from:
- (a)Death, injury or illness caused by any workplace, workplace activities or specified high risk plant; and
- (b)Risk of death, injury or illness created by any workplace, workplace activities or specified high risk plant.
Section 24(1) - A person on whom a workplace health and safety obligation is imposed must discharge the obligation.
Section 22(2) - Workplace health and safety can generally be managed by:
- (a)Identifying hazards; and
- (b)Assessing risks that may result because of the hazard;
- (c)Deciding on controlled measures to prevent, or minimize, the risks; and
- (d)Implementing control measures; and
- (e)Monitoring and reviewing the effectiveness of the measures.
Section 41(1) - The minister may make:
- (a)Advisory standards that state ways to manage exposure to risks, to industry and;
- (b)Industry codes of practice that state ways to manage exposure to risks identified by a part of industry as typical in the part of industry.
Section 26(3) - If an advisory standard or industry code of practice states a way of managing exposure to a risk, a person discharges the person's workplace health and safety obligation only by:
- (a)Adopting and following a stated way that manages exposure to the risk or;
- (b)Adopting and following another way that gives the same level of protection against the risk.
Section 27(1) - This section applies if there is not a regulation or ministerial notice prescribing a way to prevent or minimize exposure to a risk, or an advisory standard or industry code of practice stating a way to manage the risk.
Section 27(2) - The person may choose any appropriate way to discharge the person's workplace health and safety obligation for exposure to the risk.
Section 27(3) - However, the person discharges the workplace health and safety obligation for exposure to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.
Section 37(1) - It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division two or three for the person to prove:
- (a)....
- (b)If an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to risk:
- (i)The person adopted and followed the stated way to follow the contravention or;
- (ii)That the person adopted and followed another way that managed exposure to the risk and took reasonable precaution and exercised proper diligence to prevent the contravention or;
- (c)If no regulation, ministerial notice, advisory standard or industry code of practice has been made about exposure to a risk - that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.
Counsel said, surprisingly, that there was no Queensland authority in the Supreme or District Courts with regard to the application and meaning of those statutory provisions. That appears to be the case.
Guidance can be obtained from the decisions of the Court of Appeal on Section 9(1) of the former Workplace Health and Safety Act 1989. That section said that:
“An employer who fails to ensure the health and safety at work of all the employees, except where it is not practicable for the employer to do so, commits an offence against this Act.”
It is established that a breach of such legislation may be the basis for a civil action by a person injured as a result of that breach - Rogers v Brambles Australia Ltd (1988) 1 QdR 212. It is also established that the notion of “ensure” means to “make certain” or “make sure” - see St Vincents Hospital Toowoomba Ltd v Hardy (Appeal No. 7477 of 1997, judgment 06.05.98, unreported). That approach was established in the New South Wales cases decided under similar legislation. The Court of Appeal was of the view that the section did not impose, expressly or implicitly, any test of reasonable foreseeability. It followed the decision of the Full Court of the Industrial Commission of New South Wales, in New South Wales v Dawson (1990) 37 IR 110. That court had this to say:
“The nature of the duty cast upon an employer under Section 15(1) is, in our view, well settled, to the effect that there is an absolute duty cast upon an employer to ensure, in the sense of guaranteeing, securing or making certain an employee's health safety and welfare at work; and that is subject only to the statutory defences available under Section 53 of Occupational Health and Safety Act...the Magistrate, correctly in our view, considered the Section 53 defences on the basis that the onus was on the employer defendant to establish them according to the civil standard of proof...although Section 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations of Grove J in McMartin v BHP (1998, unreported) to the effect that it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety...The answer to Mr Kenny's submission, in our view, lies not in the concept of vicarious liability but rather whether the facts of a particular case show a causal connection between the detriment to safety and what the employer had or had not done.”
It follows that an employer's failure under the statute is not the same as a failure of a duty to take care at common law, where the standard of care is that of the reasonable and prudent person. Under the statute, the standard is absolute. If there is an injury caused by the workplace, liability is absolute. That absolute liability is subject to the defences, and also the possibility that the employer may have discharged the obligation. See, by analogy, the decision of the Industrial Commission of New South Wales in Cullen v State Rail Authority (1989) 31 IR 207 at 209.
In St Vincents Hospital v Hardy, the Court of Appeal ruled that any test of “reasonable foreseeability” was not imported into the statute, and was not a requirement of the proof of a breach of that duty. The Court did not mention its own decision given three years before in Quinn's case where it was said that s9 did not require an employer to take precautions against a risk that was wholly unforeseeable (see above). Perhaps that statement was meant to state a conclusion, that it would not be practicable to guard against a risk that was wholly unforeseeable.
In any event, the approach which this court is bound to take, because of the statute and the decided cases, is that s28 and s22(1) togerther create an absolute obligation, even if the event causing the injury is quite unforeseeable.
The absolute nature of Section 28 is underlined by the provisions of Section 22(1) - a section which also underlines the necessity of showing a causal link between the state of the workplace and the injury. Once the causal link is shown, it does not matter that the result was wholly unforeseeable. Likewise, mere may be a risk of injury created by a workplace, which is wholly unforeseeable. The absolute nature of the obligation is emphasised by Section 22(4) - compliance with the usual management processes does not excuse a person from the obligation to ensure the employee's health and safety.
The trial judge in St Vincents Hospital & Hardy discussed another approach to s9 - that a plaintiff's case depends on proof of some remedial measure which, if taken, would have prevented the injury. See Hardy v St Vincents Hospital (1997) 18 Qld Lawyer Reports 80 - Judge McGill SC. That approach is in contrast with the different requirement of the new legislation.
If there is an injury caused by the workplace, it is necessary to turn to the possibility that the obligation has been discharged, or that there is a defence to the apparent breach.
- 13.Liability
Was the defendant negligent in asking Ms Schiliro to move the sand? In my opinion, the answer is “no”. These are the reasons:
- (a)It was not her case that the defendant either knew, or should have known, that she had a weakness in her back.
- (b)She was not instructed to do the job in any particular way or by any particular time.
- (c)She did not protest to anyone in authority, or say that she had no experience in managing a shovel. It was reasonable for her employer to assume that she could do a simple job with simple tools.
- (d)The size of the barrow made it less than ideal for the task of moving the sand. However, the loads were quite manageable, and she could easily have put less sand in the barrow, or not used it at all.
- (e)The work was done in rotation with Amanda Jewel.
- (f)The work did not involve undue bending, lifting or twisting.
- (g)Here, different views might be held as to whether or not the prospect of this work causing this type of physical injury was “far fetched or fanciful”. Even if it were not, it should be held that no further action was called for, to eliminate or reduce that risk. The assumption that Ms Schiliro could manage the spade and the wheelbarrow was reasonable. The work demanded skills of the most elementary kind. The work was so light, that any risk of injury to a young woman could be ignored.
With regard to the breach of statutory duty, it is demonstrated that the defendant did not ensure her workplace health and safety at work. She was not free from injury caused by a workplace activity. Attention has to be focused on a possible discharge of the employer's obligation, or a defence.
For the reasons explained by Dr Low, the standards demanded by the Manual Handling Code were not infringed by her activity. He was justified in coming to the conclusion, that the risk was not one that required any adjustment to the way the activity was carried out. The threshold had not been reached, where an assessment of the risk or consultation with the worker, or further training, was required. The provisions of the Code were sufficiently observed.
If that conclusion is not correct, then it is necessary to consider the defences in Section 37. I am satisfied that the defendant “took reasonable precautions and exercised proper diligence to prevent the contravention”, for the reasons set out above, with respect to the conclusion that there was no negligence.
It follows that there has been no breach of statutory duty.
- 14.The Assessment of Damages
Damages have to be assessed in any case.
At first, Ms Schiliro did experience severe pain. There was a gradual improvement over a period of about 18 months. She says that her condition is now stable. She says that there are many ordinary tasks that she cannot carry out - during a two week period of work experience, she had to take one day off. It is submitted for her that she is to be compensated for continuing losses over 40 years.
Because of the above findings, it is inappropriate that she be compensated for any lengthy period of time. A just result would be to allow her full compensation for a period of twelve months, but for no longer.
During that year, she would have had a good deal of pain and suffering. General damages for pain and suffering and the loss of her ability to enjoy life, should be fixed at $6,000.00.
Interest should be awarded at 4% for say, two years. That is $480.00.
Ms Schiliro was earning about $300.00 net per week at the Centre. Her past economic loss should be fixed at $15,000.00. Interest on the amount out of pocket - $2,624.00 should be allowed, at 5% for two years. That is $262.00.
Ms Schiliro says that she needed the assistance of others during the acute phase of her discomfort. That is a reasonable claim. That component of her award should be fixed at $1,000.00. Interest should be also awarded, at 5% over two years. That is $100.00.
Some special damages are not in issue. They are as follows:
WorkCover | $3,608.51 |
Medicare | 264.30 |
Paid assistance | 520.00 |
Sub-total | $4,392.81 |
The Fox v Wood component (to allow for tax paid on WorkCover payments) is agreed at $2,410.50.
Therefore, the assessment of damages can be summarized this way:
Pain and suffering and loss of amenities | $6,000.00 |
Interest | 480.00 |
Past economic loss | 15,000.00 |
Interest | 262.00 |
Cost of care | 1,000.00 |
Interest | 100.00 |
WorkCover and special damages | 4,392.81 |
Fox v Wood | 2,410.50 |
Total | 29,645.31 |
less WorkCover refund | 18,395.19 |
Net assessment | $11,250.12 |
Formal Orders
The plaintiff's action is dismissed. Because of the mandatory effect of s182c(3) of the Workers Compensation Act in force at the time, there will be no order as to costs. For a more elaborate examination of that aspect of the legislation, and an extract for the second reading speech in Parliament, see the decision of Judge Robin in Turner v Absoe Pty Ltd (Plaint No. 1458 of 1997, judgment 7/8/98, unreported). The legislation though surprising, must be given its literal effect.