Claim fails despite breach by employer... why?

22 April 2024

A worker who suffered injuries to her elbows during her employment as a kitchen hand at a mining camp was unsuccessful in her claim for damages despite it being found that her employer had breached its duty of care to implement and enforce safe systems of work.

In issue

  • Whether the plaintiff worker could establish a breach of duty against the defendant employer to take reasonable care not to expose her to an unnecessary risk of injury, and whether that breach was causative of the development of the plaintiff’s injuries.

The background

The plaintiff was employed as a kitchen ‘utility assistant’ at a mining camp, and alleged she suffered symptoms in her right elbow over a six-month period as a result of performing a range of duties that were repetitive and involved high forces and static loads. The plaintiff was placed on modified duties during which she increasingly used her left arm, resulting in her developing symptoms related to her left elbow.

The plaintiff’s liability case argued that a reasonable person in the position of the defendant would have taken the following precautions which would have avoided the risk of injury:

  • Providing another employee to assist the worker during the breakfast shifts.
  • Alternating repetitive and non-repetitive tasks.
  • Enforcing a system of work by which the worker took her designated ‘smoko’ breaks.

The decision at trial

Rosengren DCJ was satisfied that the risk of the plaintiff sustaining an upper limb sprain in the course of her work duties was foreseeable and not insignificant in circumstances where a significant component of her induction and on-the-job training had focused on the need to avoid repetitive tasks and those involving sustained application of force.

The evidence was found to have established that the defendant had engaged in a systematic consideration of the risks and had assessed hazards and potentially hazardous tasks in the workplace to identify whether, and if so, how such tasks posed unnecessary risks of injuries to employees. Accordingly, the plaintiff had received extensive and ongoing training about safe work practices.

Her Honour found that despite having identified the risks, the defendant had breached its duty to implement systems whereby utility attendants were rotated out of washing pots every 30 minutes and routinely took their designated ‘smoko’ breaks.

However, Rosengren DCJ observed the plaintiff was also required to establish that the failure to exercise due care had caused or materially contributed to the damage complained of.

It was uncontentious that the plaintiff suffered from tennis elbow. Ultimately, Her Honour accepted the orthopaedic evidence led by the defendant that the physical nature of the worker’s duties fell well short of being commensurate with the sorts of occupations for which there are known risk factors for tennis elbow. Rosengren DCJ found it probable, or at least equally possible, that the plaintiff’s bilateral elbow injuries can be explained by factors unrelated to her work duties, namely her gender, age and constitution. Accordingly, Her Honour found the plaintiff did not establish any causal link between any act or omission of the defendant and her elbow condition and dismissed the claim.

Implications for you

Despite the claim ultimately failing, this judgment demonstrates the significance that merely developing policies and procedures for safe work practices falls short of upholding an employer’s duty of care. Rather, employers are required to ensure the systems of work are appropriately implemented and enforced. This case also highlights causation difficulties claimants can face in circumstances where injuries are sustained while performing light or moderate manual work duties and are fundamentally constitutional in nature.

Bishop v Compass Group Remote Hospitality Services Pty Ltd [2024] QDC 14

Justin Langusch

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