Context, credibility and currency: Factors to consider in the defence of employee injury claims

The standard of care attached to an employer's duty of care to his/her employee is high. This article discusses three Queensland Court of Appeal decisions in employer/employee claims in the past year, where the employers ultimately successfully defended liability. While each of the cases turn on their facts, the decisions highlight matters to consider in the defence of litigated employer/employee injury claims.

The context of the relevant risk - Endeavour Foundation v Weaver [2013] QCA 317

In this case, a worker sustained injuries while demonstrating a 'back steps' manoeuvre during staff training on techniques to avoid a real-life attack or assault (to assist in the event that a client becomes agitated or violent towards staff). The training was initially provided by an external agency, with subsequently trained staff members of the employer (such as the worker) then training other staff.

The trial judge found that the employer had unnecessarily exposed the worker to a risk of injury by:

• having had her instructed in the initial training that the 'back steps' manoeuvre had to be performed quickly, and
• directing her to perform the manoeuvre as quickly as possible in the subsequent training session.

The trial judge found that such directions were unreasonable given the unnatural action of the manoeuvre and the training session context in which the worker demonstrated the move.

On appeal, the Court found that:

1. The trial judge misunderstood the nature of the instructions, with evidence demonstrating that the worker was directed to move at a pace which practice had rendered her capable.
2. There was 'undoubtedly some risk' to the worker performing the manoeuvre but that the risk '... had to be assessed in the larger context of the purpose of the activity ...'. Considered with the employer's responsibility of safeguarding employees from an attack, the instruction to move as quickly as possible was a reasonable one.
3. The worker's suggested alternative of demonstrating the manoeuvre by video was not accompanied by evidence as to the effectiveness of that alternative and, in any event, the request to demonstrate the manoeuvre was not unreasonable.

This decision highlights that the context surrounding instructions given to an employee by an employer is relevant in considering the reasonableness of the instructions. It also demonstrates that if it is alleged an alternative system of work ought to have been adopted, there must be evidence to support its effectiveness.

Credibility of the plaintiff's allegations - Arnold v Tilecorp Pty Ltd [2012] QSC 321; Arnold v Tilecorp Pty Ltd [2013] QCA 211

The worker, a tiler, alleged that his ability to safely lift a 25kg box of tiles at a work site was hindered by a scaffold barrier and an 'exclusion zone', which meant he had to reach over the rail of the scaffold barrier (estimated as being about 750mm high), to lift the box.

The worker did not rely on any additional witness evidence to support his version of the configuration of the work site. The employer, however, led witness evidence at trial that there was no exclusion zone, nor any scaffold barrier, at the site. Instead, according to the employer, a rail supported by steel stanchions was in place, which was approximately 1000mm high.

In coming to the conclusion that the worker's version of events could not be relied upon, the trial judge considered, among other things:

• the worker's amendment of allegations about the barricading over time
• the absence of witnesses supporting the worker's version of events
• the employer's witnesses countering that evidence (notwithstanding some areas of conflict).

The trial judge also took into consideration the worker's criminal history when evaluating his credibility. His Honour dismissed the claim, finding that the incident the worker described could not have occurred, and there was nothing to have prevented the worker from walking to the pallet and using a safe lifting technique (with the worker having given evidence that he was aware of, and would have used, a safe lifting technique if available).

On appeal, the worker submitted that the trial judge erred in finding that the event had not occurred and, more significantly, that his Honour had not acknowledged and evaluated two scenarios that arise from the accepted evidence, with one of the scenarios being that the worker may have leaned over the rail supported by steel stanchions to lift the box, suggesting an unsafe system of work.

In dismissing the appeal, the Court noted that:

1. The trial judge was clearly not prepared to accept the worker having sustained injury when leaning over a barrier, and
2. It was implicit in the trial judge's reasons that he was not prepared to accept that the worker was injured by leaning over a barrier of whatever nature.

It is clear that a key part of a claim is the evidence of the plaintiff. The appeal decision suggests that, if there is sufficient evidence to demonstrate that a plaintiff's allegations are without credit, it will be difficult for a plaintiff to overcome the consequences of such adverse findings. A court may be prepared to cast a wide net when evaluating a plaintiff's credibility.

Hindsight bias - Suncorp Staff Pty Ltd v Larkin [2013] QCA 281

In this case, the worker sustained injuries when he bumped his knee on the metal handle of a cupboard beneath a workbench, where a telephone was situated.

The employer's premises were furnished with drawer and cupboard handles identical to the subject handle, with there being no evidence that they had previously caused injury.

The trial judge found that the extent that the handle protruded from the cupboard, the absence of an overhang of the bench, and the placement of the telephone gave rise to foreseeable risk of harm. Despite the risk being obvious, the trial judge found that there was still more than a slight chance that the worker could suffer injury by coming into contact with the handle.

The trial judge determined that the employer breached its duty of care to the worker by using those handles and failing to replace them (with a type proposed by the worker's expert witness).

In allowing the appeal, the Court found that:

1. It was relevant to assessing the foreseeability of injury that the employer's premises were furnished with hundreds of drawer and cupboard handles identical to the subject handles – which were not said to be excessively sharp or unorthodox in design – and as there was no evidence of the handles having caused injury over the years.
2. While the cost of replacing the handles may have been relatively modest, the likelihood of an employee being injured by the subject handles was particularly low, as was the risk that any injury inflicted would be serious.
3. A reasonable employer in the same position would not have foreseen that a failure to remove the subject handles would result in the risk that an employee using the bench could sustain an injury more severe than minor bruising.

The trial judge appears to have fallen into 'hindsight bias' by having identified that a worker may sustain injury from the relevant risk and reasoned by reference to the worker having sustained injury that it must have been caused by failure to take steps to reduce the relevant risk. This case highlights the adverse effect of evaluating claims with reference to hindsight, particularly in relation to commonplace activities and objects.

'Hindsight bias' is a common danger in all common law negligence claims. As noted by Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422, it is necessary to avoid hindsight and to look '... from a time before the accident' so as to properly consider 'the magnitude of the risk and the degree of the probability of its occurrence'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.