DISTRICT COURT OF QUEENSLAND

1. [1]
   On 10 February 2010 the plaintiff, who was then employed at the Logan Hospital as a Registered Nurse in the Adolescent Health Unit, was undergoing an aggressive behaviour management course at a training centre when she fell back and suffered an injury to her left hand. She alleges that the injury was suffered as a result of negligence or breach of statutory duty of her employer, the defendant. Liability is disputed, although there was no plea of contributory negligence. Quantum has been resolved between the parties, with the plaintiff’s damages agreed at $60,000 clear of the WorkCover refund: p 2.

Background

2. [2]
   The plaintiff as a Registered Nurse in a mental health unit was potentially exposed to aggressive behaviour, and in the circumstances it was reasonable for the defendant to provide a course of this nature, essentially to assist in managing such behaviour in a way intended to prevent harm to staff, and no doubt patients. Part of that process involved certain self-defence techniques. The course ran over a period of five days on a full-time basis. It was conducted by Mr Howell^[1] who had various qualifications as set out in the Further Amended Defence paragraph 5(c)-(h). He was properly qualified to be the instructor on such a course.

3. [3]
   The Department had produced an instructors guide for the course, a copy of which became Exhibit 1: p 5; p 67. Mr Howell was assisted in the course by Mr Young, who did not give evidence, who had also undertaken the instructor’s course (p 78), but who required some further practical experience in conjunction with such courses before he was formally qualified as an instructor: p 96. Mr Howell had a background as a physical education teacher, but had worked as an instructor in aggressive behaviour management courses from about 2009: p 66. At some time after this incident he was made a manager in that area, but in July this year he was offered and took voluntary redundancy, and returned to school teaching: p 65, 67. Mr Howell had some recollection of the plaintiff’s involvement in the course, essentially because she fell and injured herself on the morning of the third day of the course, which was an unusual event for such a course: p 69, p 76.

4. [4]
   The plaintiff was born on 15 March 1959, and was therefore 50 at the time of the accident: Exhibit 6. She had had some problem with her right knee 30 years previously, and her abdomen about 15 years previously (p 9) but they were not causing any trouble to her at that time. She was one of 12 students in the course: Exhibit 5. The first day of the course, the Monday, involved theoretical work which comprised a course of instruction in a classroom setting; some worksheets completed this day became Exhibit 2. On the following day she said that she was again involved only in similar theoretical instruction, and completed some further worksheets which became Exhibit 3: p 9. On the other hand, Mr Howell said that on the afternoon of this day the students moved into a training room, where they were introduced to some body positioning issues, certain body postures and stances (p 69) including what was referred to as a step and drag technique, which essentially involved moving backwards away from an aggressive subject without the feet crossing while watching the subject and maintaining balance: p 96-7.^[2] She prepared and they went through a medical disclosure form, Exhibit 4: p 9-10.

Versions

5. [5]
   The plaintiff said that on the third day the instructor went through a safety briefing, and she was then required to remove or have taped over her jewellery and other items: p 10. The group then did a basic warm up, walking around on the mats a few times and did some stretches, after which they were taught the technique described as a stomp to the shin: p 11. She said that the older instructor had shin pads on, and the younger instructor (Mr Howell) demonstrated what was to be done, once, and then asked the group to come up one at a time and practice it: p 12. On her account there was very little instruction given^[3], he simply stood in front of the other instructor, lifted one foot up, stamped on the shin, put his foot back down and slid backwards, without any instruction about which foot to use or how the feet were to be placed. She said that when he moved back, after his foot came back, he did this by sliding his foot across the mat: p 12, p 13.

6. [6]
   About four other participants went through the activity before it was her turn. She stood in front of the older instructor with her right foot forward, brought her left foot around, struck the instructor with her left foot, placed that foot back on the ground and then began to slide back her right foot^[4] when she felt that foot stick to the mat, and she fell backwards, putting out her left arm to break the fall: p 14. She said there was no warning about the risk of footwear being gripped by the mat.

7. [7]
   Mr Howell’s account was quite different. He agreed that he had gone through the medical consent form, and he said that he gave a further warning, that if she did not feel comfortable in participating in the physical skills not to do it, and that self exclusion at any point was okay: p 72. He said that there was a theory session first on the Wednesday morning, and then they moved to the training room, he had people remove jewellery and the contents of pockets (p 70), and then there was some walking around the room where there were mats on the floor: p 73.

8. [8]
   It is uncontentious that in the training room that the floor was covered with padding mats which were 20 millimetres thick. These made the floor surface softer than a normal floor, and were no doubt provided as a safety precaution because of the risk of a fall. The mats had a smooth surface, so that they had a coefficient of friction which was lower than for a carpet surface^[5], but because the surface was relatively soft there was some capacity for a foot to sink into it. It might be more difficult to slide a foot across such a surface, and there might be a greater risk of the foot dragging or catching on the surface, particularly if a person were wearing footwear with a substantial tread on the sole, as the plaintiff was at the time.^[6] She said that there was a requirement to wear enclosed shoes, preferably sneakers, and she was in fact wearing sneakers, although she said most of the others in the class were wearing enclosed shoes which were not sneakers: p 30. The use of these mats in this situation was not criticised by the experts.

9. [9]
   If the warm up involved walking around on the mats, that gave participants some opportunity to discern what the mats were like to walk on, but it would not have introduced them to the concept of walking backwards on the mats, and any difficulty which that might present. Mr Howell said that in the process of teaching foot stomp technique he gave a thorough explanation of why the technique was taught, the advantage of learning the technique, and the situations that might warrant the use of the technique, before showing them how to do the technique, which he demonstrated using the other instructor as a target: p 74. He said he explained the stance that they should be in before they began, with their feet apart and one foot behind the other. The rear leg was then brought forward to perform the actual strike, then the striking leg returned to a stable position at the rear, and they moved away from the subject while facing them: p 75. He said he told participants about the importance of retaining their balance, and to use whichever leg they were more comfortable with using, but it should be the rear foot that was brought forward to perform the strike.

10. [10]
    Mr Howell said he would start off showing them slowly and then get the participants to line up along the back of the room and to run through the manoeuvre following what he was doing, but without actually making contact with anyone else (p 85), before they came up to perform the technique individually with the other instructor: p 76. Mr Howell said that he had taught this procedure to hundreds of people and had seen them perform it thousands of times, and none of the other students had ever fallen over as a result of performing it: p 75. He said that he started with this manoeuvre because it was the easiest one to learn.

11. [11]
    The procedure that Mr Howell taught included approaching the subject, and giving a verbal direction before there was any physical contact, performing the technique and then retreating from the situation: p 75. He said that people were required to step backwards after they had performed the stomp because it was important that they keep their eyes on the subject while they were moving away, because the subject might lose balance, and for that, or I suppose another, reason might attempt to grab them, and this was to be avoided: p 77. Part of the matting was of a different colour^[7], and participants were encouraged to move back until they moved onto the mats of a different colour: p 76.

12. [12]
    It appears to follow from his evidence that the participants were taught, and were practicing, the whole manoeuvre at once including moving backwards. There had been a number of dry runs which did not involve making contact with any subject before the individual practice when there was contact with the other instructor. It does not appear that at this stage moving back was practiced.

Credibility

13. [13]
    The first issue to be resolved was whether the events occurred in the way described by the plaintiff or by the way described by Mr Howell, because it was conceded by counsel for the defendant that if things occurred in the way described by the plaintiff then there was negligence and the defendant was liable. There were no other witnesses; the other instructor was not called, nor were any of the other participants in the class called, and no explanation was offered for their absence. The plaintiff was cross-examined with a view to showing that some of the matters now being complained of, in the most recent version of the statement of claim, were not matters that were complained of at an earlier stage. That is correct, but in the process of formulating the basis of the claim, and particularly the basis upon which it was argued that the defendant was negligent, it is commonplace for this to evolve somewhat over time with the benefit of legal advice provided from time to time. The fact that the plaintiff without the benefit of legal advice does not formulate the basis of her criticism of the defendant’s behaviour in the same way, or even on the same basis, as it is formulated later with the benefit of legal advice is not something I consider impacts adversely on her credibility.

14. [14]
    On the other hand, it is a matter of some significance if the plaintiff’s factual account of what occurred has changed since the time of the incident. There was an incident report completed that day by someone else and signed by the plaintiff (p 15), Exhibit 6, where the version given is relevantly “after striking instructor with a kick using my left leg I returned my foot to the ground and on trying to move away it stuck and I fell backwards.” In another part of the form there is written “foot stuck to mat and I fell backwards”. The form provided very little space for a comprehensive description and in such circumstances it is unsurprising if the only explanation offered is something which will more or less fit in the space available. As it happened more explanation was offered by the plaintiff than would fit in the space available on this particular form, but in circumstances where the plaintiff has already used more space than was available for explanation the plaintiff can hardly be criticised for failing to expand upon her explanation even further. On the other hand, the form suggested that it was the left foot that was being moved away after it had been returned to the ground after the kick, not the right foot.

15. [15]
    On 21 October 2010 the plaintiff signed a notice of claim for damages under the Workers Compensation and Rehabilitation Act 2003: Exhibit 8. In this document there was plenty of room for a fuller account, but in fact at item 38 the version given was: “After striking the instructor with a kick using the worker’s left leg the worker returned her foot to the ground and on trying to move away it stuck to the rubber mat causing the worker to fall backwards.” This again suggests that it was the left leg that was being moved backwards when it stuck to the mat. In her oral evidence, the plaintiff said it was the right foot, and she maintained that under cross-examination.^[8]

16. [16]
    The plaintiff said that the safety briefing that was given, which appeared to involve reading from a document, included a number of the items which were on the document Exhibit 9, but did not include items 10, 11 and 12: p 33. On the other hand, Mr Howell said that Exhibit 9 was the safety briefing that he read out, and that he read out the whole document: p 71. As it happens, there is a version of the safety briefing in the guide Exhibit 1, page 128, which is different from Exhibit 9, in that item 10 in Exhibit 9 is not present in the version in the guide, item 13 is in the guide but does not include reference to chewing gum, and the guide version includes a reference to further safety requirements for certain specific forms of training. Relevantly, items 11 and 12 are also in the guide version. I think it very likely that, whichever version was used, Mr Howell went through the whole document, but obviously a version exists which does not incorporate item 10. He said Exhibit 9 was a copy of the actual briefing used at that time and it is of course possible that he may be in error about this. Nevertheless, the plaintiff’s evidence about this, which was given in a somewhat dramatic way, was unconvincing.

Findings about what occurred

17. [17]
    There is also the consideration that the plaintiff’s version of the training process would suggest that there was virtually no training before the participants of the course were asked to run through the process themselves. That is very different from the version given by Mr Howell. It may be that he was concerned to justify his position in relation to this matter, but my impression was that he was someone who took these training courses seriously, and someone who would be voluble and detailed in giving instructions. On the whole, the account given by the plaintiff as to what occurred seems to be so abbreviated as to be inherently implausible, and I reject it. I suspect that the true position is that, after the time that has passed since the day of the accident, the plaintiff has forgotten the details of the training that occurred prior to the incident when she fell and injured herself, possibly because she may not have been paying as much attention to what was going on at that time as she might have been. Overall, I found the plaintiff’s account of what occurred in the lead up to the incident unconvincing, and I prefer Mr Howell’s version. I accept that that version was largely on the basis of his usual practice rather than by reference to anything specific about this particular training course, but I think it very likely that that approach provides a good guide to what actually happened in this particular training course.

18. [18]
    On the other hand, that does not mean that I reject the plaintiff’s explanation for her having fallen.^[9]  I am worried about the fact that she appears to have changed her account from the fall occurring when her left foot caught as she was dragging it backwards, particularly in circumstances where she said that after the stamp manoeuvre she returned her left foot to a position where it was essentially parallel with her right foot, which was not the way it was supposed to have been done.^[10]  The way it was supposed to have been done involved stamping with the foot that had been to the rear, and after returning that foot to the rear it was that foot that was then moved backwards^[11], and that is not the way the manoeuvre was described by the plaintiff in the witness box: p 14. The plaintiff may have misunderstood the transition from the stomp to the step and drag part.^[12] The way she did it involved transferring her weight from one leg to the other between the stomp and the move backwards, and that could produce some instability and hence lack of balance if her foot caught and did not slide smoothly over the surface of the matting.

19. [19]
    It also seems clear that it was part of the instruction that in some way the foot, as the plaintiff explained it, be slid over the matting rather than be lifted and placed in the usual way if walking backwards. Mr Howell did accept that the second part of the manoeuvre, which involved moving backwards away from the subject, was to be performed using what was described as the “step and drag” technique: p 92, p 94. That technique was explained by him (p 94) in terms which were I thought somewhat different from those in which it was explained by the plaintiff’s expert witness Mr Turner (p 4), but both seemed to involve, at least to some extent, sliding the foot across the surface of the mat rather than lifting it and placing it in the usual way. This technique was not referred to in the guide Exhibit 1, but I do not consider that there was anything wrong in the use of this technique in conjunction with the foot stomp, so long as it was taught and practiced safely.

20. [20]
    If that process had been explained or demonstrated by Mr Howell that could explain why the plaintiff was at the time attempting to step back by sliding her foot across the surface of the mat rather than by lifting it and placing it to the rear, and hence how it came about that the foot that was being slid caught on the matting, causing her to fall. That does strike me as the sort of process which could well cause a person who was trying to move backwards in this way to fall, and on the whole I think that is the most likely explanation of the plaintiff’s having fallen.^[13] There was no suggestion that there was anything that she could have tripped over, so the only plausible explanation would seem to be that she simply lost her balance while trying to move backwards in this somewhat artificial fashion. It may not matter at the end of the day in terms of causation what was the precise mechanism of the fall.

Expert evidence

21. [21]
    The plaintiff called an expert with considerable experience in the design and conduct of courses of this nature, Mr Turner (Exhibit 15), who expressed the opinion that the approach adopted by Mr Howell in teaching this technique was not appropriate, because he should have broken the technique up into its component parts, and had participants practice each part separately, and become used to each part, before the parts were combined: p 4.^[14]  It is clear that this was not the approach adopted by Mr Howell. He regarded the whole process as being sufficiently straightforward to be taught as a single exercise to the students: p 92. Indeed he regarded it as a simple exercise which was a good one to start them on: p 75. Nevertheless, Mr Turner was quite firm in his approach, that even this exercise should have been broken up into its component parts, and that it was inappropriate to have the students performing the whole manoeuvre straight off.^[15] 

22. [22]
    Objection was taken to parts of the report of the plaintiff’s expert witnesses, Mr Turner and Mr McDougall, which became Exhibits 15 and 17 respectively. The details of these objections, and the grounds for them, were set out in writing and are on the file. During the trial I ruled that at the least Mr Turner was qualified as an expert in the way in which courses of this nature ought to be conducted, and that this was a matter for expert evidence: p 59. That is essentially the only part of his evidence which is of any real significance in this judgment, and therefore I do not think that I need to say anything further about this objection. Essentially the objection to Mr Turner’s report was overruled during the trial. Counsel for the plaintiff did not press the admissibility of parts of Mr McDougall’s report on p 8 (p 60) and something similar appearing again in the summary and conclusion part of the report that was also not relied on: p 63. Otherwise the objection to the parts of the report of Mr McDougall was also overruled during the trial.

23. [23]
    For what it is worth, during the trial I was handed a document headed “Note on common terms” which included a reference to “static training”, and was referenced to “Aggressive behaviour management program occupational violence prevention – Resource manual basic personal safety, page 5, page 37”: p 8. This was referred to as an aid to understanding terms which could be referred to in the evidence, but it states in relation to static training: “Static training is the stage of training where the participant is introduced to the physical components of a skill. The technique should be broken into three basic components (the beginning, the middle, and the end) with each component being practised separately and in succession with a fully compliant partner. The skill should be practised in slow motion, without any simulated resistance.” This goes beyond merely explaining the term, and provides a guide for training which is consistent with the approach adopted by Mr Turner.

24. [24]
    The resource manual which is referenced appears to be different from the instructor’s guide which is Exhibit 1; the page references do not correspond to any such material in this guide, nor can I find such a statement in this guide. There are however references in Exhibit 1 to “static training” and “static practice”, for example on p 61. Session 29, which was apparently the one applying here, is at p 66, and refers to the application of the knee strike as a distraction and as a defensive counter strike, and mentions “conduct static shield practice,” but I cannot find anything in this guide which identifies what is meant by that term, and which demonstrates that it incorporates the passage in the “note on common terms” referring to static training. At the end of the day, it does not appear that the material in this note can be treated as evidence, and hence as evidence supporting the approach adopted by Mr Turner. However, Mr McDougall did appear to endorse that approach, from a general occupational safety point of view: p 25. That provides some support for Mr Turner’s approach.

Analysis

25. [25]
    There was no evidence independent of Mr Howell to confirm that it was reasonable for an instructor to combine instruction in the stamp technique with instruction in the moving backwards technique. Moving backwards is a process which does necessarily involve some risk^[16], and that risk is obviously going to be increased if the participant in the course is asked to move backwards in an unusual way immediately after having practiced for the first time something which has presumably never been previously attempted. There does seem to me to be some sense in Mr Turner’s opinion that the instruction ought not to have been given in this way, and there was no independent evidence to support the view that it was reasonable for the instruction to have been given in the way adopted by Mr Howell. In those circumstances, I accept this evidence of Mr Turner, and on the basis of it I find that Mr Howell’s approach was not a reasonable one in relation to this aspect of the conduct of the course.

26. [26]
    Inevitably there was some risk of injury from a course of this nature, but the advantages of participation in such a course would ordinarily outweigh the disadvantages of that risk, so that it was not unreasonable to expect employees who were potentially faced with aggressive behaviour to expose themselves to the risks involved in undergoing such a course, provided that reasonable care was taken to minimise those risks.^[17] In my opinion however those risks could have been further minimised in the present case by a process of instruction in relation to this technique which involved splitting up the technique and teaching the different parts separately before they were combined, rather than attempting to teach the combined technique of the stomp and then backing away in one process. On the evidence of Mr Turner I accept that it was not reasonable to teach the technique in that way, and I infer that as a result the risk of injury from, relevantly, the participant’s falling was increased. That risk could and should have been reasonably reduced by breaking up the teaching of the technique in the way described by Mr Turner, and accordingly it was negligent of the instructor to fail to do so. The defendant is liable for that negligence. The employer failed to take reasonable steps to minimise the risk of injury to its employee. There were no relevant countervailing considerations.

27. [27]
    Reference was made in submissions to the decision in Weaver v Endeavour Foundation [2013] QSC 93, where the plaintiff had been injured as a result of a fall in the course of a training program similar to that in the present case, while performing a “back steps” manoeuvre, which essentially involved moving backwards away from an aggressive client. That plaintiff had previously been trained in the course, and was demonstrating this manoeuvre as an instructor to others when the fall occurred. The plaintiff was demonstrating the manoeuvre quickly, as she had been trained: [41]. One of her feet appeared to catch on the carpet, and she fell backwards. The employer was held to be liable, essentially on the basis that the risk of falling when performing such a manoeuvre could have been reduced by not requiring that the manoeuvre be performed quickly.

28. [28]
    After the trial in the present matter an appeal from that decision was allowed: Endeavour Foundation v Weaver [2013] QCA 371. The appeal was successful on the basis that the finding of the trial judge as to the instruction that the plaintiff had been given to perform the manoeuvre quickly had involved an overstatement of the evidence, which when properly considered indicated that the instruction in fact given to, and understood to be given by, that plaintiff was simply that she was to move at a pace of which practice had rendered her capable, bearing in mind her physical capacities: [40]. The court considered that there was a real difference between the approach of the trial judge and what actually followed from the evidence: [42].  The finding that the instruction in fact given to the employee was unreasonable was also rejected, on the evidence: [47].

29. [29]
    Although that case also involved someone falling while moving backwards in connection with a self-defence training exercise for employees, the particular circumstances of that case differ in detail from those of the present, and the evidence was different. The importance of the decision in my opinion is essentially that the court recognised that there was undoubtedly some risk entailed in performing the manoeuvre being performed by that plaintiff, and that the reasonableness of the employer’s response to the risk had to be assessed in the larger context of the purpose of the activity, which was to provide employees with the means of avoiding an attack: [44]. It also emphasised that the mere fact that there was evidence that a different method of training was an appropriate way of training employees did not mean that the method used was unreasonable: [43]. I am certainly conscious of both of those factors, but I do not consider that it necessarily follows that the plaintiff’s case fails. In my opinion the evidence of Mr Turner justifies a finding that Mr Howell’s approach was unreasonable, notwithstanding his contrary view. The decision in Weaver does not mean that in circumstances such as this the employer is relieved of the obligation to take reasonable care to minimise risks to which the employee is exposed.

30. [30]
    I also find that the negligence caused the plaintiff’s injury. I have explained how I believe the fall came about, essentially because the plaintiff had not achieved a clear understanding of how to do the step and drag, and how to transition from the stomp to the step and drag. This is precisely the difficulty that Mr Turner’s proposal would have been likely to avoid. In those circumstances, I consider it reasonable to infer that, had Mr Turner’s technique been followed, the plaintiff would probably have coped better with sliding her feet over the matting, and therefore would probably not have fallen.

Conclusion

31. [31]
    There are no other issues, and it follows that the plaintiff is entitled to recover the agreed amount of damages. There will be judgment that the defendant pay the plaintiff $60,000. I assume that it is appropriate also to order that the defendant pay the plaintiff’s costs of the action to be assessed, but I will invite submissions as to costs when these reasons are published.