Employer Negligently

Employer Negligently Expose

A worker has been refused $290,000 in damages for a back injury, but a supreme court judge found her employer did negligently expose her and others to a building’s unsafe access point.

Queensland Supreme Court Justice Catherine Holmes said it would have been easy for the employer to ensure employees were familiar with the workplace’s safer access points and layout.

In August 2013, the Sunshine Coast Independent Living Service Inc (SCILS) disability support worker was awarded workers’ compensation after obtaining a medical certificate for severe work-related back pain.

She subsequently sued her employer for damages, claiming she seriously injured her lower back while pulling a patient’s wheelchair over the lip of a carport door at a house for patients with disabilities on 28 July 2013.

She argued the employer was negligent in: allowing her to physically lift a wheelchair over the lip and failing to make this doorway wheelchair-accessible; failing to give her and other employees sufficient training, instruction and assistance in relation to such tasks; failing to inform her that she could enter the house through a ramp leading to the front door; and failing to ensure the front entry was kept clear so the ramp could be used.

The Court heard the front entry was blocked by number of large pieces of furniture and rarely used by staff.

It also heard it was common practice to pull wheelchairs through the carport door, other SCILS employees often worked in buildings without being shown the entry points or layout, and a suitable staff induction checklist wasn’t introduced until 2014.

The employer denied that the July 2013 incident occurred, and argued in the alternative that it resulted from the worker’s lack of care rather than a foreseeable risk.

It said it should have been obvious to her that she could use the ramp, and there was no need to provide wheelchair access or carry out a risk assessment for the carport door.

Justice Holmes noted that the worker suffered a disc prolapse in a fall from a hammock in 2010, and said she couldn’t accept the worker’s account of the July 2013 incident for a number of reasons, including that she didn’t mention it in her work notes on that day or report it to her doctor during a consultation four days later.

“The [doctor’s] notes are short but quite clear: on 1 August she presented for an unrelated problem and sought a letter whose content shows that she was concerned with her existing back condition, not any fresh injury,” she said.

But Justice Holmes said that if she had accepted the worker’s account, she would have found that the employer negligently exposed workers to a foreseeable and significant risk.

She said the amount of furniture around the front door and ramp made it appear “that there was no navigable means of exit there”, and “the positioning of the key and key safe at the carport door both pointed to the expected use of the latter, as was the practice of other workers”.

[The worker] was not advised to do anything differently. The fact that a path could be made out with some rearrangement to the furniture might with time have become evident to [the worker], but SCILS should have taken steps to make it immediately known to her,” she said.

“The risk of injury to a worker attempting to manoeuvre a wheelchair through the carport door was foreseeable and significant; a reasonable employer would have taken the step of ensuring that workers were made aware of the safe alternative route.

“It would have been an easy step to make familiarisation with means of wheelchair access a standard part of orientation for new workers.”

Justice Holmes said the worker would have been entitled to $291,384 in economic loss and other damages if her claim had been successful.