In the recent decision of Bergin v Queensland Cork & Timber Solutions Pty Ltd  QDC 141, Judge Loury QC DCJ applied the principles set out in sections 305B to 305E of the Workers’ Compensation and Rehabilitation Act 2003 to find an employer did not breach its duty of care.
Mr Bergin was employed as a floor sander. He claims to have hurt his right hand on 13 and 14 May 2013 whilst ripping up timber floors in a domestic residence.
Mr Bergin said he was using a “jemmy bar” and a hammer to rip up the flooring, which was apparently difficult to lift. He also says he used his arms to forcefully ram the jemmy bar under the flooring, to lever the floor up. Mr Bergin says his right hand was injured whilst performing this work.
Mr Bergin told the Court he had no experience with removing floors. He also said he told his co-worker, Mr McIntyre, that “he had no idea what he was doing”, and he had not received any training in how to remove a floor.
Mr McIntyre told the Court he showed Mr Bergin how to correctly remove the flooring. After having showed Mr Bergin what to do, Mr McIntyre noticed Mr Bergin was not following his method. Mr McIntyre showed Mr Bergin a second time how to lever the floor up. Overall, Mr McIntyre showed Mr Bergin two or three times how to do it.
Despite this, Mr Bergin would return to his original method of removing the flooring, believing the way in which Mr McIntyre showed him was ineffective.
Mr Bergin argued he had not received any adequate training about how to remove the flooring safely, and he should have been provided with a jackhammer to remove the flooring.
The Court accepted the work Mr Bergin was tasked to perform as a floor sander necessarily involved a foreseeable risk of injury. Repetitive manual handling tasks were a feature of the work. The Court also found the risk of injury was not insignificant.
However, the Court found the employer did not breach its duty of care to Mr Bergin, for the following reasons:
- The Court found Mr Bergin had been inconsistent in his evidence about how his injury was sustained. Because of this, the Court found it difficult assessing the countermeasures Mr Bergin said ought to have been taken to avoid injury;
- The floor removal task, whilst physically demanding, was a relatively simple task. The Court accepted Mr McIntyre’s evidence he showed Mr Bergin how to complete the task a number of times, which Mr Bergin chose to ignore. The Court found Mr Bergin had been adequately trained on the task;
- Mr Bergin failed to prove that a jackhammer ought to have been used to remove the floor. No evidence from any expert in the removal of flooring was put to the Court, and the Court accepted the employer’s evidence that a jackhammer was not necessary to effectively remove the flooring;
- The injury was sustained when Mr Bergin adopted a method of completing the task contrary to how he was told and shown how to do the task.
This case highlights the importance of an employer being able to prove it had in place a system of training and instruction for its employees, particularly when its employees are engaged in manual handling activities.
In this case, the employer was able to prove it had provided adequate training, simply by its evidence it showed the worker how to do a particular task, when it became apparent the worker did not know what he was doing.
However, employers must still devise, implement and enforce a robust, well-documented system of training for all employees, to minimise exposure to liability for manual handling injuries.