Worker warnings - the importance of alerting a co-worker to imminent activity

22 March 2023

A hospital and their worker were found to have breached a duty to take precautions against a foreseeable risk of injury when another worker injured her shoulder while intervening, without warning, to assist in placing a mattress on a bed.

In issue

  • In dispute was whether the defendant employer had breached its duty to take precautions against a foreseeable risk of injury to the plaintiff. The plaintiff and the defendant provided competing versions of events leading up to the incident, with the defendant denying liability and in the alternative, asserting 30% contributory negligence against the plaintiff.

The background

A patient support assistant injured her shoulder when assisting a co-worker position a mattress onto a hospital bed.

The circumstances in which the worker sustained her injury were in issue with the parties disputing the manner in which the mattress was placed on the bed by the co-worker. The plaintiff alleged that she attended the assets shed to assist her co-worker, who was retrieving a mattress to place on a hospital bed. She asserted that while the co-worker had raised the mattress above his head, she reached out to take hold of the end of the mattress when, without warning, the co-worker threw the mattress onto the bed, catching her arm and injuring her shoulder as a result.

The defendant, in contrast, alleged the co-worker did not raise the mattress above his head, nor did he throw the mattress onto the bed, and that the plaintiff had, without warning, grabbed at the mattress as it was sliding onto the bed and in doing so, caught or snagged her left arm. The defendant asserted there was no reason for the co-worker to give the plaintiff any warning as he had not sought her assistance and had no reason to anticipate her unsolicited and unnecessary intervention in his preparation of the bed.

The decision at trial

Despite preferring the defendant’s evidence to that of the plaintiff as to the circumstances of the incident, Hindman J was satisfied that in failing to give any verbal warning prior to moving the mattress, the co-worker had breached a duty to take precautions against a risk of injury to the plaintiff.

Hindman J found the defendant was negligent for not having in place a system of work whereby patient support assistants were trained to issue warnings about the intended movement of mattresses if it could not be ascertained with certainty that no other person was within, or may readily come within, the path of a moving mattress.

Hindman J found a reduction of 30% for contributory negligence was warranted in circumstances where the plaintiff’s conduct was interventionalist and unnecessary. Her Honour was not satisfied that the plaintiff’s conduct amounted to 'mere inadvertence, inattention or misjudgment' which would have absolved the plaintiff from a finding of contributory negligence against her.

After discounting the contributory negligence finding, the plaintiff was awarded $196,193.33 in damages clear of a WorkCover refund of $77,712.06.

Implications for you

The decision provides a key reminder of the significance of implementing a comprehensive safe system of work. The defendant, as the employer of the worker, had a duty to take reasonable care not to expose its employees to unnecessary risks of injury in carrying out their work, and to take precautions against a risk of foreseeable injury. Even in circumstances such as this whereby the worker’s conduct was found to be interventionalist and unnecessary, the employer was required to uphold its duty to take precautions against a risk of injury.

Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 36

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