The duty of care employers owe to employees

Nkamba v Queensland Childcare Service Pty Ltd [2022] QDC 292

On 16 December 2022, the District Court handed down a decision in favour of an employee (“Plaintiff”) who was injured whilst setting up equipment in the early hours of the morning. As the Plaintiff was setting up, she stepped on a toy building block, causing her to invert and seriously injure her ankle. It was found that the storage shed that the Plaintiff was accessing did not have an adequate lighting system.

Her lack of physical improvement and the persistence of her injury, pain and associated impacts to, and limitations upon, her work and daily living caused her to become depressed such that she suffered an adjustment disorder with depressed mood from which she still suffers residual symptoms.

The matter was concerned with how the block came to be there and whether it was due to the negligence of her employer.

Mrs Nkamba claims that her injuries were caused by the negligence of her employer, the Defendant. She brings this proceeding seeking damages. The Court found, for the reasons which follow, her employer was negligent, and her claim should be allowed.

CLEANING POLICY

The Court noted that this policy was clearly not adhered to, on the day before the Plaintiff was injured. If it was, the subject block would not have been left on the ground creating the risk of injury.

LIGHTING ISSUES

The Court also noted a lack of adequate lighting in the area the Plaintiff was injured. The lighting issues only increased the probability that an object may go undetected. The Court noted that even with adequate lighting, the risk of injury would still be apparent. It was not essential to the injury.

DUTY OF CARE – EMPLOYERS AND EMPLOYEES

It is commonly known in compensation law that the Defendant, as an employer, owes a duty of care to the Plaintiff, the employee.

Under section 305B(3) of the Workers Compensation Rehabilitation Act 2003 (WCRA) liability for an injury to a worker arising out of the course of their employment is determined as follows: -

• A person does not breach a duty to take precautions against a risk of injury to a worker unless—
  • the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  • the risk was not insignificant; and
  • in the circumstances, a reasonable person in the position of the person would have taken the precautions.
• In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
  • the probability that the injury would occur if care were not taken;
  • the likely seriousness of the injury;
  • the burden of taking precautions to avoid the risk of injury.”

THE RISK, SIGNIFICANCE & FORESEEABILITY

The first issue related to the risk of injury, whether that risk was not insignificant, and if the risk was foreseeable to a reasonable person in the position of the Defendant.

It was determined by the Court that the risk of injury was that of a worker suffering personal injury as a consequence of stepping on an object that was not put away and instead left on the ground, where the worker did not detect it.

This risk must be known or ought to have been known to the Defendant to be foreseeable. It was found that it would have been foreseeable to the Defendant as it had implemented a policy in its induction book which required all equipment to be cleaned and stored at the end of each day.

The Court found that the risk of injury was not insignificant as the Plaintiff was required to make several trips to the storage shed for daily set up and pack up.

The Court determined that, given the above findings, a reasonable person in the position of the Defendant would have taken precautions to minimise the risk of injury, such as providing proper lighting, and ensuring there was adequate time and opportunity and training to make sure the shed was left in a safe condition the night before.

CAUSATION

S305D of the WCRA provides that a breach of duty of care that caused the injury must have the following requirements: -

• the breach was a necessary condition of the occurrence of the injury (factual causation); and
• it is appropriate for the scope of liability of the employer to extend to the injury so caused.

The Court found that but for the employer’s failure to ensure the storage shed was in a safe condition the night before, and ensuring the block was safely stored away, the Plaintiff would not have stepped on it the following morning and would not have been injured.

Further, it was also considered appropriate for the scope of liability of the Defendant to extend to the injury caused.

CONTRIBUTORY NEGLIGENCE

S305F of the WCRA provides that the same principles in deciding whether a duty of care has been breached also apply to the worker who sustained an injury has been guilty of contributory negligence in failing to take precautions against the risk of that injury.

The Defendant claimed that the Plaintiff was at fault for her own injuries, such as by failing to take reasonable care for her own safety, failing to report the lighting issues, failing to comply with the employer’s cleaning policy, etc.

It was found by the Court that the Plaintiff had not contributed to her own injuries and any reasonable person in that position had acted reasonably. It was determined that the Plaintiff had: -

• verbally reported the lighting issues to a direct supervisor;
• not been aware of the block on the ground and therefore did not move it;
• followed the employer’s policy so far as it was required to set up equipment that morning;

Further, it could not be considered to be an obvious risk as the Plaintiff was unaware a block had been left on the ground. According to the employer’s policy, it should have been safely stored away the night before.

As such, the Court determined that the Plaintiff had not contributed to their injuries and that a reasonable person in her position would have taken any further precautions.

The Defendant was found to have breached their duty of care to the Plaintiff, which caused her injuries and subsequent loss. 

HOW WE CAN HELP

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Workers Compensation legislation. If you are dissatisfied with your current representation, our experts can also offer a second opinion.

If you, or you know someone who has been injured at work, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed. We can assist.