The recent decision of Rayner v Brisbane City Council [2015] QDC 100 reaffirms that Local Councils, like any employer, may escape liability for workplace injuries where the circumstances were not foreseeable and an employee deliberately conceals a relevant history of past injury.

Background

Mr Christopher Rayner ("the Plaintiff") alleged that in May 2009 he suffered a significant neck injury in the course of his employment as a bus driver for Brisbane City Council ("Council"). His claim focussed on an incident which occurred when he was driving a bus and he turned his head to the left to attend to a commotion between passengers. This action is said to have caused a prolapsed disc on a history of cervical spondylosis. Following the incident, the Plaintiff was off work for a month and then followed a graduated return to part time work and light duties. However he was terminated in January 2010 as he was deemed unfit for work and has not worked since.

Trial

The principal issue before the District Court was whether Council breached its duty to exercise reasonable care by failing to provide adequate training and a safe system of work, as was alleged by the Plaintiff.

In considering this issue, Clare SC DCJ considered whether there was a causal link between the contended breach on the part of Council and the injuries sustained by the Plaintiff. This required the court to determine whether Council's duty to the Plaintiff extended to protecting him from injury caused by turning his head. Her Honour also gave regard to evidence concerning the level of training provided to the Plaintiff, particularly in terms of the operation of the driver's swivel seat intended to reduce the pressure of the driver turning his or her head to face passengers entering the bus through the front door.

"...it was found that it was not foreseeable to a reasonable employer that in turning his head, the Plaintiff was at risk of sustaining a significant injury "

Decision

The Plaintiff's credibility was a significant issue in this case and caused the Court to weigh the evidence that was given in terms of the mechanism of injury and what prompted the Plaintiff to turn in the first place.

The court held that the risk of injury did not satisfy the reasonable foreseeability test provided in Wyong Shire Council v Shirt. This was because it was found that it was not foreseeable to a reasonable employer that in turning his head, the Plaintiff was at risk of sustaining a significant injury. Her Honour considered that the Plaintiff's prior history of work-related neck injuries suggested he was not suitable for bus driving.

The Plaintiff's failure to disclose this prior history to Council when it should have been disclosed during the pre employment health assessment meant there were no reasonable grounds on which it could be contended that Council knew or ought to have known of the Plaintiff's unsuitability for the role. Further, the Court held that turning the head to the left was an unavoidable occurrence when driving a bus, and there were no practicable means of offsetting this risk, which was essentially a daily incident of driving. Therefore, the Plaintiff was unable to establish causation and Council was not found liable to compensate the Plaintiff for his injury.

Additionally, Her Honour dismissed the allegation that the Plaintiff was not trained in the operation of the relevant swivel seat as records indicated he had undertaken training in all types of buses and had spent 404 hours driving a vehicle with the same swivel seat operation as the vehicle in question. However, this had no effect on the conclusion on liability because the Plaintiff could not establish causation.

Comment

Foreseeability is an issue often tested in Court. This decision affirms that liability will not be found in circumstances that are so ordinary that the risk of significant injury is not foreseeable. Further, it upholds that Local Councils may be provided protection from an adverse decision where an employee has a relevant prior history of injury that they failed to disclose in pre-employment screening.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.