Lack of Training a Costly Mistake25 September 2017
In a recent case before the Supreme Court at Brisbane, an Anglican Community Services Organisation was found to have been negligent by failing to train an employee to safely unload a wheelie walker from a vehicle.
The plaintiff (“Ms D’Arcy”) was employed by the defendant (“Spiritus”), as a personal care worker with responsibilities including transporting clients to and from medical appointments.
On 5 October 2010 Ms D’Arcy experienced difficulty extracting a client’s wheelie walker from the car when it caught on an object in the boot. She attempted to “jiggle” the device free and whilst doing so sustained an injury on the left side of her lower back.
Ms D’Arcy alleged that Spiritus breached duties of care owed to her by not training her to safely unload a wheelie walker from a vehicle.
Spiritus contended that unloading the walker form the vehicle “was a simple and everyday task that did not require any specific training or instruction”.
Spiritus’ Manual Handling Guidelines covers the company’s approach to manual handling of people and objects and the risks associated with same. The guide detailed that walkers must be “secure” and workers were to ensure that “there is adequate space to allow for appropriate manual handling techniques to be utilised” but did not specify said techniques.
The guide also stipulated that managers were responsible for providing training to ensure actions were undertaken in the safest possible way and that “workers would undertake a competency assessment of manual handling skills and knowledge before completion of a probationary period of employment”.
The worker also received a Self-Directed Learning Package regarding Workplace Health and Safety Orientation. The only mention of a wheelie walker in this package was instructions that they be transported in the boot of the car.
Brendan McDougall (Specialist Engineering Consultant) criticised Ms D’Arcy’s lifting method, as the distance from her body at which she held the object put her at an increased risk of lower back damage, regardless of whether or not the object caught on something.
The court found that Spiritus breached its duty to take reasonable care for Ms D’Arcy’s safety in failing to instruct her adequately in how to unload a wheel walker from a car safely and to minimise risk of injury.
When Ms D’Arcy returned to work she was initially placed on light duties, but had to cease employment with Spiritus as she could not perform full duties as a personal case worker. She then obtained other employment, as a behavioural support worker.
Calculation of Damages
There was some debate among the health professionals consulted by each of the parties as to whether or not the worker’s ongoing injuries and/or symptoms were attributable to the incident and thus whether this caused ongoing incapacity for work. Justice Byrne concluded that “more probably than not, the injury ceased to be influential in Ms D’Arcy’s lower back condition before 2012” and the damages were assessed on that basis.
Ms D’Arcy’s lawyers calculated her economic loss based on the notion that the injury deprived her of the chance to work as a registered nurse, however the court considered that she had withdrawn from her nursing studies prior to her injury, her withdrawal from another course subsequently enrolled in, and the mental health difficulties she had been experiencing, all of which indicating her likelihood of working as a nurse even without the injury was slim.
Byrne SJA found $20, 000 to be fair compensation for this component of economic loss, with other components being: $5,900 for personal injury, special damages at $9,762.10, Fox v Wood allowance at $527 and a Medicare refund at $1,451.50.
Recommendations for Employers
The decision in D’Arcy sets the precedent that employers who allow employees to lift items, regardless of weight, without specific training or instructions may be negligent in providing a safe workplace.
This case illustrates the importance of providing appropriate and activity-specific training programs to educate employees and minimise the risk of injury.
It is recommended that employers provide such activity specific training, and assess each risk individually, rather than generally.
Where such training is mandated, policies should be in place to ensure the training actually occurs, for example, by requiring managers to submit training completion reports. Re-training and/or refresher courses should take place every one to two years or more frequently if necessary.
Employers should also, where possible, refrain from including broad safety advice and/or procedures in their Safety Manuals and instead clearly specify the recommended safety techniques for each activity that presents a potential threat to the health and safety of employees. Such manuals and the procedures they contain should be audited and updated regularly.
1 D’Arcy v The Corporation of the Synod of the Diocese of Brisbane  QSC 103