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Liable for an everyday task?

We have previously written about general safety instructions being deficient in specific circumstances and how liability can attach to workers performing seemingly mundane "domestic" tasks in a work environment.

The case of D’Arcy v The Corporation of the Synod of the Diocese of Brisbane handed down in the Supreme Court of Queensland on 31 May 2017 highlights both of these principles.

In this case, Ms D'Arcy was employed as a personal care worker. Her responsibilities included transporting elderly clients who used wheelie walkers.

On 5 October 2010, Ms D'Arcy was retrieving a client's wheelie walker from the boot of her employer’s car. According to the Judgement, here is what happened next:

"With torso bent forward and arms extended to hold the frame at about its mid–point, she raised the wheelie walker from the floor of the boot, using both hands. Bearing its weight, she tried to "jiggle" the device to free it from "whatever" it was "caught on". "Trying to untangle it", Ms D'Arcy experienced "like a stabbing pain" on the left side of her lower back.”

The obstacle impeding the removal of the wheelie walker was never identified.

The employer contended the wheelie walker was "lightweight" and unloading it from the boot was "a simple and everyday task that did not require any specific training or instruction".

The employer had provided training relating to manual handling (including the requirements to hold the load close). The employer also gave instruction in relation to transporting wheelie walkers, declaring they may be transported in the boot of a vehicle providing "there is adequate space to allow for appropriate manual handling techniques to be utilised" but, importantly, did not describe what those techniques were.

The Court conceded that "the task of putting the walker in the boot and removing it is a simple activity that can be performed without risk if a little care is taken" but also found that does not mean training should not be provided to minimise any risk to safety.

The variables in this case were the walker was loaded perpendicular to the bumper with the wheels closest to the bumper. To grip the frame, Ms D'Arcy had to reach beyond the wheels meaning she was in an unsafe ergonomic position of bending and lifting away from her body. Her safety was further compromised when she had to "jiggle it" to release a snag.

The Court found that had Ms D'Arcy been instructed to load the wheelie walker parallel to the bumper she could have grasped and lifted it closer to her body and possibly avoided any snag present deeper in the boot. In any event, holding the walker closer to her body would have reduced the risk of injury.

The Court ruled that the burden of taking the appropriate precaution was "negligible" and should have been provided to a person whose role called for her to frequently load and unload wheelie walkers.

Ultimately, the employer gave general instruction on manual handling and instructed Ms D'Arcy to load wheelie walkers in the boot but did not give specific instruction on how to load and unload a wheelie walker. The absence of that specific instruction resulted in a win for Ms D'Arcy.

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."