QLD WorkCover: Contributory Negligence and Vicarious Liability Case Law Update 

Claudia Douglas

Claudia Douglas

Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 261

Background

The Plaintiff, Ms Jody Lee Cvilikas, suffered from a shoulder injury on 10 December 2017 in the course of her employment with the Defendant, the Sunshine Coast Hospital and Health Service.  

On the date of injury, the Plaintiff was undergoing her usual employment duties with another agent of the Defendant, Mr Adam Lenaghan. Mr Lenaghan received instructions from the Defendant’s agents to obtain a mattress from the storage area and deliver the asset to a patient’s room. The Plaintiff was with Mr Lenaghan at the time of the instructions, however, was not required by the Defendant to assist Mr Lenaghan in the task. 

Despite the fact, the Plaintiff entered the storage room some time after Mr Lenaghan commenced the task to assist in obtaining one (1) mattress. In the course of Mr Lenaghan attempting to place a standard mattress on the patient’s bed, the Plaintiff intervened. As a result, the Plaintiff’s left arm become trapped between the mattress and the bed.  

Consequently, the Plaintiff suffered from debilitating pain in her left shoulder, which prevented her from returning to her employment.  

The Plaintiff’s Argument

The Plaintiff claimed damages in tort for the negligence of the Defendant, being:- 

  1. The Defendant was vicariously liable for the actions of Mr Lengahan; and 
  2. The Defendant was responsible for the system of work in accordance with the provisions of the Workers’ Compensation and Rehabiliation Act 2003 (“WCRA”). 

The Plaintiff asserted there should be no deduction for contributory negligence.  

The Defendant’s Argument

The Defendant denied liability on the basis that its systems were not negligent. Furthermore, the Defendant asserted that the Plaintiff contributed to her own negligence to the extent of 30%.  

Negligence and Vicarious Liability

The Court found that the Defendant was the employer of the Plaintiff, with a duty to take reasonable care not to expose its employees to unnecessary risks of injury in carrying out their work. 

Further, by reason of s.305B of the WCRA, the duty owed by the Defendant to the Plaintiff was a duty to take precautions against a risk of injury to the Plaintiff that was foreseeable, was not insignificant, and in the circumstances, a reasonable person in the position of the Defendant would have taken the precautions.  

Considering the elements of ss.305B and 305C of the WCRA, her Honour found: 

  1. The risk of a co-worker in the vicinity of another co-worker may intervene, without notice, to assist in manual handling task if foreseeable. 
  2. The risk of injury is not insignificant. A mattress is bulky and weighty.  
  3. A reasonable person moving a mattress would take precautions to ensure that no person or part of a person was, or could readily become, in the path of the moving mattress. 
  4. If such precautions were not taken it was probable that injury would occur to the person intervening to assist without notice because the person intervening to assist may wrongly assume how the person moving the mattress intends to move it or be unprepared for the movement that actually occurs.  
  5. It is not burdensome for the person in the position of moving a mattress to visually ensure that no person or part of a person was, or could readily become, in the path of the moving mattress.  

In the circumstances, her Honour found that on the balance of probabilities Mr Lenaghan breached a duty to take precautions against a risk of injury to the Plaintiff in respect of the incident, as follows:- 

  1. Placing a mattress on a bed does carry with it a foreseeable risk that a person’s body part may become caught between the moving mattress and the bed; 
  2. If the risk eventuates, injury to the person is likely, particularly given the weight of the mattress and solid nature of the bed;
  3. The risk is properly addressed by the person moving the mattress ensuring that no person is in, or may readily come within, the likely path of the moving mattress;  
  4. The risk could have been properly addressed by the person moving the mattress to issue a verbal warning to other persons;  
  5. Mr Lenaghan moved the mattress to the end of the bed in a manner which meant he could not see the Plaintiff; 
  6. Mr Lenaghan knew the Plaintiff was physically proximate to him; 
  7. Mr Lenaghan gave no verbal warning;  
  8. Mr Lenaghan acting reasonably, ought to have given such a warning;  
  9. In failing to give a warning, Mr Lenaghan breached the duty of care owed by him to the Plaintiff, and the Defendant is vicariously responsible for the breach;  and 
  10. Further, the Defendant was negligent for not having in place a system of work whereby the Plaintiff and Mr Lenaghan were trained to issue warnings about the intended movement of mattresses. 

Contributory Negligence

Her Honour found that, the Plaintiff intervened in work being undertaken by Mr Lenaghan in circumstances where he had not been requested to do so and his express offer of assistance had been clearly rejected. The movement of the mattress onto the bed was being undertaken by Mr Lenaghan. He was fit, strong and competent in his employment role. There was no good reason for the Plaintiff to intervene. Furthermore, by sticking her left arm to “catch” a moving, bulky and weighty mattress that was otherwise going to land on an empty bed, hurting nobody, was ill-advised.  

The Court found that “the Plaintiff’s conduct was interventionalist and unnecessary. In those circumstances, a significant reduction for contributory negligence is warranted.” 

Conclusion

Ultimately, her Honour found that:- 

  1. The Defendant was negligent; 
  2. The Plaintiff was contributorily negligent to the extent of 25%; and 
  3. The Plaintiff is entitled to judgement against the Defendant for damages for negligence in the sum of $196,248.29, clear of the WorkCover refund of $77,712.06. 

Littles Lawyers are specialist workplace incidents and can assist you receive financial resolution from physical or psychological injuries occurred in the workplace. If you would like advice in relation to a claim in any jurisdiction in Australia, please reach out to the author at Littles Lawyers today.  

Like? Share it with your friends.

Contact the Author

Topics

More Articles

新州工傷賠償：什麼是工傷疏忽賠償索賠

新州工傷賠償：什麼是工傷疏忽賠償索賠 (Work Injury Damages Claim)? 如果您遭受工傷並有法律代表，您可能聽說過您可能有權獲得“工傷疏忽賠償”索賠。 那麼，這究竟是什麼，過程又是怎樣的呢？  當受傷的工人因雇主過錯和疏忽而起訴雇主要求賠償時，就會提出工傷疏忽賠償索賠。如果您想成功索賠賠償，您必須能夠證明雇主的過錯和疏忽。如果您無法確定過錯和疏忽，那麼即使您因事件而受到傷害，您也無權獲得任何賠償。  並非所有受傷的工人都有權利或有資格就工傷疏忽賠償提出索賠。 要獲得資格，必須滿足以下條件：  傷害、損失和損害是由於雇主的過錯和疏忽造成的； 和  索賠人的永久性損傷程度必須至少為15% Whole Person Impairment  – 這可以通過與保險公司的協議，或通過人身傷害仲裁聽 Personal Injury...

Read More

QLD WorkCover: Contributory Negligence and Vicarious Liability Case Law Update 

Claudia Douglas

Claudia Douglas

Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 261

Background

The Plaintiff, Ms Jody Lee Cvilikas, suffered from a shoulder injury on 10 December 2017 in the course of her employment with the Defendant, the Sunshine Coast Hospital and Health Service.  

On the date of injury, the Plaintiff was undergoing her usual employment duties with another agent of the Defendant, Mr Adam Lenaghan. Mr Lenaghan received instructions from the Defendant’s agents to obtain a mattress from the storage area and deliver the asset to a patient’s room. The Plaintiff was with Mr Lenaghan at the time of the instructions, however, was not required by the Defendant to assist Mr Lenaghan in the task. 

Despite the fact, the Plaintiff entered the storage room some time after Mr Lenaghan commenced the task to assist in obtaining one (1) mattress. In the course of Mr Lenaghan attempting to place a standard mattress on the patient’s bed, the Plaintiff intervened. As a result, the Plaintiff’s left arm become trapped between the mattress and the bed.  

Consequently, the Plaintiff suffered from debilitating pain in her left shoulder, which prevented her from returning to her employment.  

The Plaintiff’s Argument

The Plaintiff claimed damages in tort for the negligence of the Defendant, being:- 

  1. The Defendant was vicariously liable for the actions of Mr Lengahan; and 
  2. The Defendant was responsible for the system of work in accordance with the provisions of the Workers’ Compensation and Rehabiliation Act 2003 (“WCRA”). 

The Plaintiff asserted there should be no deduction for contributory negligence.  

The Defendant’s Argument

The Defendant denied liability on the basis that its systems were not negligent. Furthermore, the Defendant asserted that the Plaintiff contributed to her own negligence to the extent of 30%.  

Negligence and Vicarious Liability

The Court found that the Defendant was the employer of the Plaintiff, with a duty to take reasonable care not to expose its employees to unnecessary risks of injury in carrying out their work. 

Further, by reason of s.305B of the WCRA, the duty owed by the Defendant to the Plaintiff was a duty to take precautions against a risk of injury to the Plaintiff that was foreseeable, was not insignificant, and in the circumstances, a reasonable person in the position of the Defendant would have taken the precautions.  

Considering the elements of ss.305B and 305C of the WCRA, her Honour found: 

  1. The risk of a co-worker in the vicinity of another co-worker may intervene, without notice, to assist in manual handling task if foreseeable. 
  2. The risk of injury is not insignificant. A mattress is bulky and weighty.  
  3. A reasonable person moving a mattress would take precautions to ensure that no person or part of a person was, or could readily become, in the path of the moving mattress. 
  4. If such precautions were not taken it was probable that injury would occur to the person intervening to assist without notice because the person intervening to assist may wrongly assume how the person moving the mattress intends to move it or be unprepared for the movement that actually occurs.  
  5. It is not burdensome for the person in the position of moving a mattress to visually ensure that no person or part of a person was, or could readily become, in the path of the moving mattress.  

In the circumstances, her Honour found that on the balance of probabilities Mr Lenaghan breached a duty to take precautions against a risk of injury to the Plaintiff in respect of the incident, as follows:- 

  1. Placing a mattress on a bed does carry with it a foreseeable risk that a person’s body part may become caught between the moving mattress and the bed; 
  2. If the risk eventuates, injury to the person is likely, particularly given the weight of the mattress and solid nature of the bed;
  3. The risk is properly addressed by the person moving the mattress ensuring that no person is in, or may readily come within, the likely path of the moving mattress;  
  4. The risk could have been properly addressed by the person moving the mattress to issue a verbal warning to other persons;  
  5. Mr Lenaghan moved the mattress to the end of the bed in a manner which meant he could not see the Plaintiff; 
  6. Mr Lenaghan knew the Plaintiff was physically proximate to him; 
  7. Mr Lenaghan gave no verbal warning;  
  8. Mr Lenaghan acting reasonably, ought to have given such a warning;  
  9. In failing to give a warning, Mr Lenaghan breached the duty of care owed by him to the Plaintiff, and the Defendant is vicariously responsible for the breach;  and 
  10. Further, the Defendant was negligent for not having in place a system of work whereby the Plaintiff and Mr Lenaghan were trained to issue warnings about the intended movement of mattresses. 

Contributory Negligence

Her Honour found that, the Plaintiff intervened in work being undertaken by Mr Lenaghan in circumstances where he had not been requested to do so and his express offer of assistance had been clearly rejected. The movement of the mattress onto the bed was being undertaken by Mr Lenaghan. He was fit, strong and competent in his employment role. There was no good reason for the Plaintiff to intervene. Furthermore, by sticking her left arm to “catch” a moving, bulky and weighty mattress that was otherwise going to land on an empty bed, hurting nobody, was ill-advised.  

The Court found that “the Plaintiff’s conduct was interventionalist and unnecessary. In those circumstances, a significant reduction for contributory negligence is warranted.” 

Conclusion

Ultimately, her Honour found that:- 

  1. The Defendant was negligent; 
  2. The Plaintiff was contributorily negligent to the extent of 25%; and 
  3. The Plaintiff is entitled to judgement against the Defendant for damages for negligence in the sum of $196,248.29, clear of the WorkCover refund of $77,712.06. 

Littles Lawyers are specialist workplace incidents and can assist you receive financial resolution from physical or psychological injuries occurred in the workplace. If you would like advice in relation to a claim in any jurisdiction in Australia, please reach out to the author at Littles Lawyers today.  

Like? Share it with your friends.

Contact the Author

Topics

More Articles

Legal Services

Blog

Latest blog articles

About Us

Facebook Twitter Youtube Instagram Linkedin

Want a call back?

Copyright 2021 Littles Lawyers. All Rights Reserved