Griffiths v State of Queensland

INDUSTRIAL LAW - INDUSTRIAL SAFETY HEALTH AND WELFARE - QUEENSLAND - WORKPLACE HEALTH AND SAFETY LEGISLATION - LIABILITY - where the plaintiff claims for damages for personal injury incurred during the course of her employment - where the plaintiff was injured when a soda lime canister she lifted from a trolley slipped from her grasp - whether the employer was in breach of its obligation under s 28 Workplace Health and Safety Act 1995 (Qld) to ensure the plaintiff's workplace health and safety

EMPLOYMENT LAW - LIABILITY AT COMMON LAW FOR INJURY AT WORK - NATURE AND EXTENT OF LIABILITY - GENERALLY - where the plaintiff claims for damages for personal injury incurred during the course of her employment - where the plaintiff was injured when a soda lime canister she lifted from a trolley slipped from her grasp - whether the employer was in breach of its duty of care in failing to provide a safe system of work

Workplace Health and Safety Act 1995 (Qld), ss 22, 26, 27, 28, 30, 37

Black v Warwick Shire Council [2009] QSC 123; cited

Bourk v Power Serve P/L & Anor [2008] QCA 225; cited

Calvert v Mayne Nickless Ltd (No. 1) [2006] 1 Qd R 106; [2005] QCA 263; cited

Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124; cited

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672; applied

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; cited

Neill v New South Wales Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362; cited

O'Brien v TF Woollem & Son Pty Ltd [2001] QSC 217; [2002] 1 Qd R 622; cited

Parry v Woolworths Limited [2010] 1 Qd R 1; [2009] QCA 26; cited

Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518; [2000] QCA 18; cited

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; cited

Vairy v Wyong Shire Council [2005] HCA 62; [2005] 223 CLR 422; applied

Wilkinson v BP Australia Pty Ltd [2008] QSC 171; cited

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; applied

B F Charrington and B Wessling-Smith for the plaintiff

[1] This is a claim for damages for personal injuries allegedly suffered by the plaintiff in a workplace incident which occurred during her employment as an Assistant in Nursing at the Nambour General Hospital on 5 October 2004.

[2] The plaintiff was employed in the Central Sterilising Service Department ("CSSD unit"), which resembles a large industrial washing-up area, equipped with large sterilizing dishwashers and other equipment for high grade medical sterilization and cleaning. At the time of her employment there, the CSSD unit processed tens of thousands of pieces of surgical equipment each month, of varying sizes and weights. Surgical items and equipment were transported on trolleys from operating theatres and other parts of the hospital to the CSSD to be cleaned, sterilized and returned. The trolleys had a number of shelves and a tub on each shelf. Each tub was covered with a fitted lid for safety and hygiene purposes. The height of the trolley at the top edge of the tub was 1066mm above floor level and the depth of the tub itself was 220mm, meaning, therefore, that the items were at a height of 846mm from the ground when they were removed from the trolley.

[3] The plaintiff's injury was sustained when she removed a soda lime canister from a tub on a trolley in order to place it in a decontaminator approximately one metre away from the trolley. A soda lime canister is a piece of surgical equipment weighing about 5 kilograms. It is made predominantly from stainless steel. It comprises a base (about 165mm square) and 2 vertical steel plates at the side, joined by a crossbar at the top. Fully assembled, it is about 430mm long by 240mm in diameter. On the day of the plaintiff's incident, the soda lime canister was unassembled, meaning the plastic internal canisters had been removed so that the equipment to be sterilized was only the base, the side plates and the top crossbar. A short hose of approximately 300mm in length was attached to the base of the item. The bottom of the square base was covered with a removable Perspex cover attached by three large screws which protruded from the base. The canister in question had been disassembled and rinsed off in theatre, before being brought to the sterilization area. The plaintiff described it as having droplets of water on it.

[4] The plaintiff claims to have lifted this disassembled soda lime canister from the trolley by grasping its top with her right hand and using a 'flat palm grip' with her left hand on the base, without attaching any part of her left hand onto or around any object (for example the screws protruding from the base). It slipped from her left hand and she bent down and to the right to catch the end she had dropped, and in doing so, injured her back.

[5] The quantum of the plaintiff's claim has been agreed between the parties to be $600,000 (accounting for a refund to WorkCover in the amount of $39,435.91). The issues to be determined are whether the defendant is liable for either breach of statutory duty, breach of duty of care in negligence or breach of an implied term of the contract of employment.

[6] Section 28(1) of the Workplace Health and Safety Act 1995 ("the WHSA") relevantly provides:

"28 Obligations of persons conducting business or undertaking

(1) A person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person's workers and any other persons is not affected by the conduct of the relevant person's business or undertaking..."

Workplace health and safety is ensured when persons are free from -

(a) death, injury or illness caused by any workplace, relevant workplace area, work activities, or plant or substances for use at a relevant place; and

(b) risk of death, injury or illness created by any workplace, relevant workplace area, work activities, or plant or substances for use at a relevant place.

[8] Section 28(1) is in absolute terms. An employer must ensure that its employees are kept free from the risk of injury. By sustaining an injury, the plaintiff has established prima facie that the employer has breached its statutory obligation.

[9] In Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2)[1] the Court of Appeal[2] held that section 28(1) provided a civil cause of action for an employee injured at work. The Court observed that the legislative intention of the WHSA was to:

"impose civil liability on employers who have failed to ensure the health and safety of their employees and thereby caused injury to those employees, unless the employer demonstrates that it has discharged its obligations under s. 26 or s. 27 or that it has established a defence under s. 37 of the Act."

[10] The WHSA provides that an employer can discharge their obligations under section 28(1):

"26 How obligations can be discharged if regulation etc. made

(1) If a regulation or ministerial notice prescribes a way of preventing or minimising exposure to a risk, a person discharges the person's workplace health and safety obligation for exposure to the risk only by following the prescribed way.

(2) If a regulation or ministerial notice prohibits exposure to a risk, a person discharges the person's workplace health and safety obligation for exposure to the risk only by ensuring the prohibition is not contravened.

(3) If a code of practice states a way of managing exposure to a risk, a person discharges the person's workplace health and safety obligation for exposure to the risk only by -

(a) adopting and following a stated way that manages exposure to the risk; or

(i) adopting and following another way that gives the same level of protection against the risk;

1. How obligations can be discharged if no regulation etc. made

(1) This section applies if there is not a regulation or ministerial notice prescribing a way to prevent or minimise exposure to a risk, or a code of practice stating a way to manage the risk.

(2) A person discharges the person's workplace health and safety obligation for exposure to the risk by doing both of the following -

(a) adopting and following any way to discharge the person's workplace health and safety obligation for exposure to the risk;

(b) taking reasonable precautions, and exercising proper diligence, to ensure the obligation is discharged."

[11] It was common ground that the Manual Tasks Code of Practice 2000 ("the Code") applied in this case. The Code stated ways to prevent or minimise exposure to risk factors that could contribute to or aggravate work related musculoskeletal disorders and encompassed 'manual tasks' including activities that required a person to grasp, move, hold and lift objects.

[12] The WHSA also allows an employer to rely on certain defences to a claim under section 28(1):

(1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 for the person to prove -

(a) if a regulation or ministerial notice has been made about the way to prevent or minimise exposure to a risk - that the person followed the way prescribed in the regulation or notice to prevent the contravention; or

(b) if a code of practice has been made stating a way or ways to manage exposure to a risk -

(i) that the person adopted and followed a stated way to prevent the contravention; or

(ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or

(c) if no regulation, ministerial notice, or code of practice has been made about exposure to a risk - that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.

(2) Also, it is a defence in a proceeding against a person for an offence against division 2 or 3 for the person to prove that the commission of the offence was due to causes over which the person had no control.

(3) In this section, a reference to a regulation, ministerial notice, or code of practice is a reference to the regulation, notice, or code of practice in force at the time of the contravention."

[13] In Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2),[3] an employee at a childcare centre was injured whilst shovelling sand into a wheelbarrow and moving the wheelbarrow some distance before emptying it. In that case the force required to lift the sand was 8.5 kilograms and to move the wheelbarrow was approximately

14 kilograms.[4] This case preceded the introduction of the Code, the predecessor of which contained recommended maximum weight limits, which do not appear in the current standard. The weight involved was less than the recommended weight limits which were said to necessitate risk assessment.

[14] The Court concluded that there was no identifiable risk involved in this manual handling task that was likely to be a risk to health and safety, so no further risk assessment was necessary under the relevant standard. Nevertheless, the Court found that the employer had breached section 28(1) by failing to ensure the workplace safety of the employee, but the employer was not liable on the basis that it established a satisfactory defence under sections 26(3)(b) and 37(1)(b)(ii).

[15] In making this finding the Court observed:[5]

"To find otherwise would be to create an offence for failing to formally identify and manage trivial risks such as when an employee bends down to pick up a pen or reaches to take a book from the shelf and the employee suffers a consequential injury; it is notorious that sometimes serious back injuries are possible in such circumstances. The legislature could not intend such an unjust and unworldly outcome and the interpretation that will best achieve the purpose of the Act is to be preferred. The Act imposes penalties for its breach and is a penal statute requiring that if there are two reasonable constructions open, the more lenient one should be preferred. The appellant's claim for breach of statutory duty must fail." (citations omitted)

[16] In Calvert v Mayne Nickless Ltd (No 1),[6] the Court of Appeal considered the situation where a plaintiff nurse was injured whilst moving a patient who grabbed at her, pulling her to the ground and causing her to sustain an injury to her back. Jerrard JA (with whom McPherson JA and Atkinson J agreed) considered the decision in Schiliro:[7]

"In Schiliro the joint judgment made clear that s. 28 of the 1995 Act did not create an offence, or provide a right of civil action, when an employer failed to formally identify and manage, or assess, trivial risks.[8] That conclusion could be rephrased by saying an employer is not obliged to ensure the employer's workers are not exposed to trivial risks, or by saying the employer is obliged to ensure that the employer's workers are not exposed to risks that are more than trivial."

"I consider that once Ms Calvert proved that she was not free from a trivial risk of injury created by her workplace or work activities, as she did, she established the prima facie conclusion that [the employer] had breached its obligation to ensure her workplace health and safety. The onus then lay on [the employer] to establish either of the matters specified in s. 26(3), and that it had accordingly discharged its workplace health and safety obligation, or to establish the defence provided by s. 37(1)(b) of that Act."

[18] Reasonable foreseeability of injury was not required; rather, the obligation to ensure workplace health and safety hinged on proof that the worker was not free from a 'non-trivial' risk of injury.[10]

[19] In Bourk v Power Serve P/L & Anor,[11] the Court of Appeal allowed an appeal by a linesman who was injured in a fall from a power pole when the pole strap attached to his safety harness failed. Muir JA (with whom Keane and Fraser JJA agreed) said:

"[32] Under s 28(1) the employer's duty to ensure the employee's safety is absolute. It is not expressed as a duty to supply equipment, advice, training, conditions, or assistance of a particular type or at all. Subject to the operation of s 26, s 27 and s 37, if an employee such as the appellant is injured through the failure of a piece of necessary safety equipment provided to him by his employer there is a breach of the obligation imposed by s 28(1). The employer has failed to ensure the safety of the employee. Causation is established. If the employee's safety had been ensured, the employee would not have been so injured.

[33] A requirement that the appellant prove that "had there been a system of inspections and checks the defect in the pole strap would have been detected" is not to be found in s 28(1). Nor is it justified by s 27. An employer can avoid liability, where there is no regulation, ministerial notice, advisory standard or industry code within the meaning of s 27(1), by choosing "any appropriate way to discharge the ... workplace health and safety obligation for exposure to the risk" and by taking "reasonable precautions" and exercising proper diligence to ensure the obligation is discharged. The employer may also establish a defence under s 37 or discharge the obligation imposed by s 28(1) by acting in accordance with s 26. Section 26 has no relevance for present purposes. Section 27 however does not define the obligation under s 28(1). It states, in quite general terms, a means by which such obligation may be discharged.

[34] The unchallenged finding at first instance was that the first respondent did not have the benefit of a defence under s 27. That being the case, the appellant was entitled to succeed. Whether the defect in the pole straps would have been detected by a proper "system of inspections and checks" diligently carried out would have been relevant to the application of s 27 or s 37 had there been such a system. Absent such a system and the application of s 27(3) or s 37(1)(c) what such a system may or may not have detected was irrelevant. It sufficed for the appellant's purposes that he was provided by his employer with a defective pole strap which failed, causing him injury." (citations omitted)

[20] In Parry v Woolworths Limited,[12] the Court of Appeal again considered the breadth of liability under section 28(1). That case involved a butcher who sustained a lower back injury whilst assisting another employee to lift a tub of meat. The tub of meat was accepted to weigh about 44 kilograms and evidence was given that each employee grasped a handle of the tub with one hand and used their other hand to assist in tipping the contents of the tub into a nearby bin. The trial judge dismissed the plaintiff's claim for damages and the plaintiff appealed on the basis that the trial judge erred in finding that the plaintiff had failed to prove that the employer was negligent, in breach of contract or in breach of the respondent's obligation under s 28 to ensure the plaintiff's workplace health and safety.

[21] That case can be distinguished factually from the present situation on a number of basis, not least that the weight involved was significantly greater (approximately

9 times heavier) and that the task was to be frequently and repetitively undertaken by the same employees. The present case did not involve frequent, repetitive lifting of the soda lime canister.

[22] Fraser JA (with whom McMurdo P and White AJA agreed) referred to the decisions in Bourk and Calvert before making the following comments on the decision in Schiliro:

"[36] My own view is that the judgment in Schiliro made it clear that though the workplace activities there in question exposed the employee only to a trivial risk of injury, a prima facie contravention was established because of the absolute nature of the obligation in s 28(1). The significance of the triviality of the risk lay in the relative ease with which the employer could rebut the prima facie case of liability established by proof of an apparent contravention of s 28."

[23] The Court found that no defence to section 28 was established by the employer and allowed the plaintiff's appeal.

[24] Turning to the facts of the present case, the plaintiff has proved that she has sustained an injury and has therefore established a prima facie contravention of the obligation to ensure her workplace health and safety under section 28(1) of the WHSA.

[25] It then falls to the employer to show that it has discharged its duties under the WHSA, specifically by:

(a) adopting and following a stated way in the Code that manages exposure to the risk pursuant to s 26(3)(a); or

(b) adopting and following another way that gives the same level of protection against the risk, taking reasonable precautions and exercising proper diligence pursuant to s 26(3)(b)(i)-(iii).

[26] Alternatively, the employer must establish a defence pursuant to section 37(1)(b), namely that the employer:

(a) adopted and followed a stated way in the Code to prevent the contravention; or

(b) adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention.

[27] The Code states ways to prevent or minimise exposure to risk factors that can contribute to or aggravate work related musculoskeletal disorders and relates to 'manual tasks'. It is not disputed between the parties that the handling of the soda lime canister constituted a 'manual task' for the purposes of the Code. The Code provides that ensuring workplace health and safety involves identifying and managing exposure to risks.

[28] It identifies the following major work-related contributors to back injury:

(a) load handling - frequent and repetitive lifting with a bent and/or twisted back (even for relatively light loads), lifting at a fast pace, or pushing/pulling activities;

(b) static working positions with the back bent or continuous and sustained sitting or standing; and

(c) driving vehicles for prolonged periods (whole body vibration). Driving followed by manual handling of loads is particularly hazardous.

[29] The Code[13] sets out the procedure required for preventing or minimising exposure to the risk of musculoskeletal disorders caused by manual tasks:

Identify problem tasks (see chapter 7). Although manual tasks can be identified as a hazard, not all manual tasks have significant risks associated with them. Select tasks for assessment that may have the potential to contribute to a musculoskeletal disorder, or have caused one.

Assess the risks associated with the problem tasks (see chapter 8).

Control the risk (see chapter 9), by selecting and implementing solutions to prevent or minimise the risk (see chapter 10).

Monitor and review the effectiveness of the controls (see chapter 9).

To prevent musculoskeletal disorders the relevant person who is an employer must make sure:

· work processes involving manual tasks are designed to be safe and without risk to health and safety, and

· work items including plant, tools, containers, workbenches, furniture, mechanical devices and vehicles are designed, purchased and maintained to be safe and without risk to health and safety (see chapter 3).

Consultation is an effective way of identifying risks and developing controls in the workplace (see chapter 4). It encourages a cooperative approach to health and safety while recognising the decision-making role of the relevant person who is an employer.

Consultation will be enhanced if the provisions regarding workplace health and safety representatives (WHSR), workplace health and safety committees and workplace health and safety officers (WHSO) are implemented. These are contained in parts 7 and 8 of the act.

Training is essential for workers to perform manual tasks without risk to health and safety. Provide workers and others at the workplace with information, instruction, training and supervision (see chapter 5) sufficient to enable them to do their work in a safe manner.

Training is also necessary when any new work processes or equipment are introduced."

[30] The defendant, therefore, had an obligation under the Code to identify problem tasks, bearing in mind that while all tasks could be identified as some sort of hazard, it is important to prioritise tasks which have significant risk associated with them. Chapter 7 - Risk identification, lists the first step in managing risk as being to target potentially risky jobs/tasks for assessment. It suggests that problem tasks could be identified when changes to the work environment are planned, when there are indications for potential injury or after an incident or injury has occurred. The Code suggests that consultation with employees can be 'valuable' in identifying risks as workers will know best the difficulties they experience in performing particular manual tasks. Once problem tasks are identified, the employer must decide which tasks are most in need of assessment by considering the number of risk factors involved, the frequency of the task and the proportion of workers who are completing the task.

[31] The task that the plaintiff was undertaking was to lift a particular piece of hospital equipment from a trolley to a sterilising machine. It was not a task which could be categorized as frequent or repetitive, being a brief, single task which the plaintiff estimated occurred once a week (although she gave contradictory evidence that she had only seen it 'a couple of times' during the first six months of her employment at Nambour Hospital).

[32] The plaintiff gave evidence that the soda lime canister was disassembled when it was brought into the sterilisation area on a trolley and that it had droplets of water on it. She estimated the height of the top of the trolley as being just under chest height. She described lifting her 'shoulders up and her elbows out' to remove the item from the tub with a 'grip hold with a fist' at the lighter end and a 'flat palm, stretched out fingers' grip on the base. She said that she could not get her fingers underneath the base because of the awkwardness of the item, and that after she had cleared the top of the tub, the soda lime canister slipped out of her left hand and she twisted down to the floor and caught it. She said that it was an instant reaction to try and catch the item, as it was hospital property and expensive. She said that she would not have been able to hold it with just her right hand. The plaintiff was wearing what she described as 'pink normal washing up gloves'.

[33] The plaintiff did not discuss any problem she may have had with the soda lime canister with a manager or a person involved in occupational health and safety, but claimed that 'it was mentioned around, like, when we were having lunch'. She said she didn't want to make a complaint as she was 'not a complainer' and 'was just doing her job'.

[34] The plaintiff did not have any recollection of a superior or health and safety officer at the hospital discussing with her the difficulties she had with the soda lime canister or with her duties in general.

[35] Ms Currey also gave evidence regarding handling the soda lime canister. Like the plaintiff, she worked in the CSSD and she had handled the item on occasion. She said that she complained about the fact that the item was awkward and classified her complaints as 'I don't think I made anything official - just kept whinging really'. She did eventually make a written complaint; however, this was after the plaintiff sustained her injury.

[36] Reports from Mr O'Sullivan, ergonomist and physiotherapist, were tendered by the plaintiff. Mr O'Sullivan identified the key issues involved in the plaintiff's incident as:

(a) the loss of grip of the heavier base end of the unit, possibly holding the unit at a height of 1200mm above floor level;

(b) the base falling out of her left hand and swinging towards the floor, being held only by the top, lighter end;

(c) an inability to control the force applicable to her right hand by the downwards swinging load, being only able to regain control once she had placed her left hand back under the unit; and

(d) rapidly bending, twisting and side bending down to the left regain a grip at approximately 400mm above floor level.

[37] He also identified that the posture adopted by the plaintiff to lift the item out of the trolley and the pendular effect of the item dropping could conceivably have required the plaintiff "to have had to apply a 17kg upward force to bring the unit to rest with such force being applied whilst in an awkward and compromising posture".

[38] In relation to the work design or system of work, he identified the following factors as critical:

(a) the depth of the tub from which the item had to be obtained;

(b) the height of the tub from which the item had to be obtained;

(c) the "graspability" of the base of the soda lime unit;

(d) the wetness of the unit at the time and typically in this process; and

[39] He considered the item was an awkward load, but conceded that "it is clear that the base of the unit does not have an obvious, singular grasping method but may be grasped in a number of ways".

[40] Mr O'Sullivan had regard to the Manual Tasks Advisory Standard 2000 in identifying possible countermeasures to the risk. He suggested that staff should be instructed to obtain a secure grip of any item by using a hook grasp or similar as opposed to flat palm contact or to lower the height of the tubs or tilt the tubs toward one side to improve accessibility. When cross-examined, it became apparent that no inquiry into the feasibility or practicality of these had been undertaken in the course of his preparation of the report.

[41] Ms Ricardi was the Nurse Unit Manager in charge of the CSSD at the time of the plaintiff's employment. She recalled hearing occasional general discussion about the handling of the soda lime frame in the department, some of which occurred prior to the plaintiff's incident. The general substance of the conversations was that the item was awkward to handle, had an uneven weight distribution and could be difficult to load and unload from the batch washer. In response to these conversations, Ms Ricardi spoke with the staff in the operating theatre department to ascertain whether the instrument could be decontaminated elsewhere. She determined that the theatre did not have the correct equipment to decontaminate the soda lime canister and it was a critical piece of medical equipment, so there was no option for it but to be processed by CSSD.

[42] Ms Ricardi said that she was familiar with the process of risk assessment and understood that a risk assessment was 'something you do on an article, an item or a practice if you feel you wish to assess...the level of the hazard, the level of the risk in handling that piece of equipment or in doing that type of task'. She said that she did not consider the soda lime canister to be of 'any great risk' so as to warrant a risk assessment being undertaken.

[43] Nevertheless, in response to concerns raised in general conversation, she did discuss the issue with theatre staff to ascertain whether there was an alternative. The plaintiff submits that this discussion with theatre staff inherently means that Ms Ricardi must have thought the item posed a risk.

[44] The issue of the soda lime canister specifically must be considered in the context of the overall activity of the CSSD and the factors referred to in the Code, namely the number of risk factors involved, the frequency of the task and the proportion of workers who are completing the task. The uncontradicted evidence before me was that the CSSD processed more than 12,000 items each month, many of which could be considered awkward (due to factors such as length, size or weight distribution) or even dangerous (such as scalpels and other sharp objects). This item weighed only

5 kilograms, which is considerably less than the weight referred to in Schiliro, where the court held that shovelling 8.5 kilograms of sand was of minimal risk and did not warrant a risk assessment. The task was performed infrequently; it would appear that the soda lime canister was brought to the CSSD only about once a week and that the same staff member was not required to process it each time.

[45] The Code provides that problem tasks could be identified when changes to the work environment are planned, when there are indications for potential injury or after an incident or injury has occurred. Prior to the plaintiff's injury, there had been no change to the work environment considered and no incident or injury had previously occurred in relation to the soda lime canister. While it appears there had been occasional 'whinging' and complaining between employees relating to the awkwardness of the item, no person had made an official complaint or had suggested that it was dangerous or likely to cause injury. Ms Ricardi had herself been required to handle the soda lime canister on several occasions and did not feel that it posed any risk of injury.

[46] The plaintiff's counsel placed great weight in their written submissions on the issue of consultation, namely that the Code required a formal process of consultation with workers during the risk identification process. However, the Code states that consultation 'can take the form of informal on the job interaction during a walk through of the work unit' and recommends that it may be desirable to put a formal structure into place. Ms Ricardi worked alongside the other employees in the CSSD and appeared to be willing to listen to their concerns as evidenced by her actions in noting concerns about the soda lime canister and attempting to make other arrangements through discussions with theatre staff. The plaintiff and Ms Currey both seemed well aware that they were able to make formal or written complaints about any item they had an issue with[14] and that their concerns would be considered. Ms Ricardi said that it was known to all staff that they were able to fill out a risk assessment form if they felt that any item or object that they were handling was a risk.

[47] It was also submitted by counsel for the plaintiff that insufficient training was provided in relation to the handling of the soda lime canister. The plaintiff gave evidence of receiving manual handling training during a training and induction session in the form of a lecture and a video. She was unable to recall with certainty if it was the same video which was marked for identification in the proceeding, but conceded that the video was of a similar kind and that it included instruction on lifting techniques and safety when lifting. She also recalled being shown a video called "Child's Play", another video on safety and techniques related to manual handling. Counsel for the plaintiff suggested that the plaintiff should have been shown specifically how to lift this particular item. The logical consequence of this submission is the preposterous proposition that the plaintiff should have received specific individual lifting instruction in relation to each item which passed through CSSD.

[48] It is important to note that the Code recognises that all manual tasks could potentially be recognised as a hazard, but that not all manual tasks have significant risks associated to them such as would warrant the implementation of a formal risk assessment. It is my opinion that, having regard to all the factors and the requirements of the Code, namely the relatively light weight of the soda lime canister, the infrequent nature of the task, the other options available to the hospital to have a vital piece of equipment sterilized, the lack of suggestion of possible injury, the large number of items processed in the CSSD and the nature of the work being undertaken in general in the area, that the defendant was reasonable in not identifying this as a task which would require a formal risk assessment under the Code.

[49] This situation resonates with the sentiments conveyed by Fraser JA in Parry that the significance of the triviality of the risk is important, not in determining liability under section 28(1), but in the ease with which the defendant can rebut the prima facie liability established by the proven contravention.

[50] I am satisfied that the defendant has discharged its duties under the WHSA and would therefore not grant the relief sought for breach of section 28(1) WHSA.

[51] The plaintiff also contends that section 30 WHSA should confer a civil cause of action and that the defendant has breached its obligations under this section. Section 30 WHSA provides:

"30 Obligations of persons in control of workplaces

(1) A person in control of a workplace has the following obligations -

(a) to ensure the risk of injury or illness from a workplace is minimised for persons coming onto the workplace to work;

(b) to ensure the risk of injury or illness from any plant or substance provided by the person for the performance of work by someone other than the person's workers is minimised when used properly;

(c) to ensure there is appropriate, safe access to and from the workplace for persons other than the person's workers.

person in control of a workplace does not include the occupier of domestic premises."

[52] In O'Brien v TF Woollem & Son Pty Ltd,[15] Philippides J held that section 30(1) WHSA did not confer a civil cause of action. The plaintiff points to criticisms of this point by Dutney J[16] and McMeekin J[17] to found an argument that a similar approach should be taken to civil liability under section 30(1) as is taken by the courts in regard to section 28(1). Given the recent legislative amendments to the WHSA which clarify the position and remove any civil cause of action resulting from contravention of any section of the WHSA, it is clearly not the legislative intention for this section to be relied on to found a civil cause of action and I am not willing to extend its application. Accordingly, I find that section 30(1) does not confer a private right of action.

Breach of duty (negligence) or breach of contract of employment

[53] The plaintiff alternatively claims for damages for breach of duty in negligence or for breach of an implied term of the contract of employment.

[54] An employer is under a common law duty to take reasonable care to avoid injury to employees which is foreseeable.[18] In Kondis v State Transport Authority,[19] Mason J (as his Honour then was) considered the proposition that an employer is under a special duty by means of the employment relationship:

"The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. ... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.

The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.

That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to those matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken."

[55] The defendant owed a duty to the plaintiff not to expose her to risk of injury of which it knew or ought to have known whilst carrying out her work.[20] The issue is whether, as at 5 October 2004, there was a reasonably foreseeable risk of an employee in her position injuring her back through dropping the soda lime canister in the course of her employment, and if so, what was the appropriate response by the employer.

[56] In determining whether the employer has breached its duty, regard must be had to the approach identified in Wyong Shire Council v Shirt:[21]

" A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

[57] Consequently, if a risk is not characterised as far fetched or fanciful it must be held to be reasonably foreseeable. It cannot be said that the risk of the plaintiff sustaining a back injury while lifting the soda lime canister was far fetched or fanciful, and therefore it is foreseeable. But the existence of a foreseeable risk of injury is not enough of itself to amount to a breach of duty. The response of a reasonable employer in the position of the defendant must be considered, having regard to the magnitude of the risk, the degree of probability of occurrence and other relevant factors.

[58] The defendant submits that it took reasonable care to avoid exposing this plaintiff to an unnecessary risk of injury by:

(a) hiring a properly qualified assistant in nursing for the purpose of carrying out the task in question;

(b) ensuring the plaintiff underwent a detailed orientation program prior to commencing employment;

(c) ensuring the plaintiff attended specific training on an ongoing basis throughout the course of her employment;

(d) providing the plaintiff with ample opportunity to raise any issue about workplace health and safety which she saw arising during the course of her employment;

(e) requiring her to lift a piece of equipment that weighed approximately 5 kg and offered numerous safe ways of lifting the equipment without any risk of injury;

(f) requiring the plaintiff to carry out a task which had been performed many times prior to the plaintiff's injury without incident and where the employer was not on any notice that such an incident might occur; and

(g) considering that the shape and construction of the piece of equipment involved permitted numerous different ways for the item to be lifted, such that the employer would not reasonably have considered that the plaintiff would lift the equipment in the way in which she did.

[59] It is necessary, in determining the response of a reasonable employer, not to be swayed by the benefits of hindsight. Justice Hayne in Vairy v Wyong Shire Council[22] explained what was required by the tribunal of fact in making this determination:

"When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although the judgment must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as 'consideration of the magnitude of the risk and the degree of the probability of its occurrence'. It is only by looking forward that due account can be taken of 'the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have'."

[60] A reasonable employer, prior to the incident, would not have foreseen a serious and probable risk of an employee picking up the soda lime canister in this unorthodox way, dropping it and causing injury so as to warrant the expense, difficulty and inconvenience which would be involved in altering its equipment and system of work. I make this finding in light of all the circumstances, namely, the many and varied items which are sterilized in the department, the importance of having sterile equipment in a hospital environment and the training and precautions which have already been undertaken by the employer in relation to workplace health and safety.

[61] The plaintiff submits the duty of care includes a duty 'to provide adequate plant and equipment, a safe place of work and a safe system of work'[23] and alleges a failure to maintain a safe system of work. The plaintiff bears the onus of establishing a reasonably practical alternative system and, once established, it remains for the employer to prove the impracticality thereof.[24]

[62] As discussed above at [40], the possible countermeasures identified by the plaintiff by which it is submitted the risk could have been avoided, were to lower the height of the tub on the trolley or to tilt the tub on the trolley. No study into the feasibility or practicality of these countermeasures was conducted by the plaintiff and no evidence was led regarding the implementation of these alternatives. I am not satisfied that the plaintiff has established a reasonably practical alternative system.

[63] I find that the defendant has not breached its duty to the plaintiff.

[64] Accordingly, there will be the following order:

1. The plaintiff's claim filed 23 May 2008 is dismissed.

[1] [2000] QCA 18; [2001] 1 Qd R 518 at p532; [2000] QCA 18.

[2] Judgment of the Court comprising McMurdo P, Pincus JA, Davies JA, Thomas JA and Helman J.

[3] [2001] 1 Qd R 518; [2000] QCA 18.

[4] [2000] QCA 18; [2001] 1 Qd R 518 at p534; [2000] QCA 18.

[6] [2006] 1 Qd R 106; [2005] QCA 263.

[8] This can be seen at 532 [46] and 537-539 [69]-[72] in Schiliro.

[10] [2006] 1 Qd R 106; [2005] QCA 263.

[11] [2008] QCA 225.

[12] [2010] 1 Qd R 1; [2009] QCA 26.

[14] In fact, Ms Currey did just that following the plaintiff's incident.

[15] [2001] QSC 217; [2002] 1 Qd R 622.

[16] Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124 at [22].

[17] Wilkinson v BP Australia Pty Ltd [2008] QSC 171 at [25]- [26].

[18] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672.

[20] Black v Warwick Shire Council [2009] QSC 123.

[21] [1980] HCA 12; (1980) 146 CLR 40 at 47-48.

[22] [2005] HCA 62; [2005] 223 CLR 422 at [126] - [127].

[23] Per Wilson and Dawson JJ in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 44.

[24] Neill v New South Wales Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 314.