Utility worker claimed negligence against her employer for requiring her to perform her normal duties over a period of 6 months

Bishop v Compass Group (Australia) Pty Ltd [2024] QDC 14
Rosengren DCJ
21 February 2024

Background

The Plaintiff alleged she suffered bilateral tennis elbow injuries as a result of her work as a kitchen utility worker over a period of time. She did not suffer any “accident” and simply says the forceful and repetitive nature of her duties caused her injury.

Liability

The Plaintiff alleged the employer breached its duty of care by failing to:

• Provide another employee to assist her;
• Alternate her work between repetitive and non-repetitive tasks; and
• Enforce time limits on specific tasks and ensure she took all of her designated breaks.

The employer defended liability on the basis:

• The system of work was safe;
• The “injury” was not caused by work and was instead constitutional;
• There was no reasonable precaution the employer could have taken that would have prevented the injury.

Judgement / findings

Her Honour Rosengren DCJ accepted the lay witnesses evidence as genuine, but where there was inconsistency, the employer’s witnesses were preferred.

The Plaintiff worked mainly on the breakfast shift, replenishing bain-maries, preparing cold foods, stocking the store rooms, cleaning surfaces including mopping of floors, loading/unloading the dishwasher and manually cleaning pots and pans. There was no evidence to identify any one particular task as causing her injury.

Rosengren DCJ detailed the employer’s induction, training, risk assessment and systems of work in detail. Her Honour found the Defendant had engaged in a systematic consideration of the risks and that “the Plaintiff had received extensive and ongoing training about these safe work practices”. No criticism was made of the employer’s comprehensive training and induction program.

The Plaintiff failed to prove breach of duty in relation to any of the tasks performed, save for:

1. The employer ought to have an enforced system that ensured workers took allocated “smoko” breaks – the Court accepted that the Plaintiff sometimes worked through her smoko breaks;
2. The employer ought to have formally rotated the workers out of the task of scrubbing pots and pans after 30 minutes (as the employer’s own risk assessment suggested) – the court accepted the Plaintiff sometimes performed the task for up to an hour.

However, the Court found that the Plaintiff’s injury was not caused by any breach of duty of the employer, and was instead a consequence of constitutional factors. Her Honour found that the simple temporal relationship between the Plaintiff being at work when her symptoms commenced did not establish a causal connection between the breach of duty and injury.

Her Honour outlined 10 reasons why she preferred the evidence of the Defendant’s expert over the Plaintiff’s expert. In particular, she found the evidence showed the duties the Plaintiff performed were far less heavy than the Plaintiff’s expert had assumed. Although the tasks were repetitive, they did not involve forceful or awkward posture. Her Honour accepted the Defendant’s expert’s evidence (supported by literature including the AMA5 Guidelines) that mere repetitive work does not create a risk of tennis elbow injury, unless it also involves force or awkward sustained postures.

Her Honour found it was “probable, or at least equally possible” the Plaintiff’s injuries could be explained by factors unrelated to her work duties – being her gender, age and constitution as a slight 42 year old woman.

Of note, Her Honour found the evidence of Mr Justin O’Sullivan, ergonomist briefed by the Plaintiff’s Solicitors, to be not “particularly helpful”. Because his report was based on “numerous assumptions that were not confirmed on the evidence”.

Finally, Her Honour assessed very modest quantum of $39,951. The Plaintiff continued to work for the Defendant in an administrative role with no demonstrable loss. Her Honour noted the “boom or bust” nature of the mining industry meaning the Plaintiff could continue to experience no loss to retirement, or could lose her job and struggle to find anything beyond casual work. In balancing those considerations she awarded $30,000 inclusive of superannuation for future economic loss

Discussion /  implications

This case highlights:

1. It is critically important to appropriately brief experts to ensure their evidence is based on facts established at trial by evidence;
2. It is critically important to lead evidence to prove at trial the facts assumed by the experts;
3. The need for employers to develop training programs that suit individual workers;
4. The need for employers to supervise workers to ensure their systems of work are enforced;
5. The difficulty for claimants proving causation in cases where the condition is largely constitutional and arises out of light or moderate manual work.