Time pressure + no risk of assessment = injured worker

A small business owner was found to have breached his duty of care to take precaution against a foreseeable risk of injury when a warehouse worker suffered an injury while forcefully using a pallet jack in the midst of time pressures.

In issue

The defendant employer disputed whether the plaintiff had incurred his injury in the workplace as alleged, whether the injury resulted from a breach of the employer’s duty of care, and whether liability for the injury should be imposed upon the employer as a result.
The background

The defendant employer conducted a business selling chicken feed and chicken feeders in a rented warehouse in Townsville. The plaintiff was employed on a full-time basis, undertaking duties relating to customer service, sales, managing stock, packing orders for dispatch, and warehousing tasks which included the movement and storage of pallets of stock around the warehouse that required him to move the heavy pallets from their point of delivery outside the warehouse to inside for storage. The warehouse was shared with the landlord, who operated a business of hiring out camper trailers which he kept stored in the warehouse.

Initially in the plaintiff’s employment, the movement of pallets was undertaken solely through the operation of a forklift which was owned by the landlord and available to be used by the plaintiff and defendant employer when not in use by him in moving his camper trailers. The defendant employer later acquired a manual pallet jack to assist in the movement of the pallets inside the warehouse.

The plaintiff alleged that on 8 October 2018, in using the pallet jack to move the pallets he suffered a tendon tear of the right quadriceps, resulting in a permanent physical impairment and an adjustment disorder with mixed anxiety and depressed mood. His injury was alleged to be the result of the application of high force to quickly initiate the pallet jack’s movement, which the plaintiff claimed was required in order to meet temporal demands in ensuring he did not obstruct the landlord’s access to the warehouse. The defendant employer was overseas at the material time and there were no witnesses to the events in question.

In dispute of the plaintiff’s case, the defendant employer argued that even if the plaintiff’s injury had been caused by the work-related events, it may be explained as an aggravation of pre-existing tendinopathy and may have also been caused by the comparatively low strain activity of getting in and out of the forklift.

There was no evidence the defendant employer had undertaken any risk assessment, nor implemented any relevant system of workplace safety. To that end, the defendant employer testified that he was of the belief the plaintiff knew how to use a pallet jack on the basis of discussions regarding the plaintiff’s use of one in previous employment.

The decision at trial

Henry J found in favour of the plaintiff as to the circumstances of his ill-fated and unwittingly unsafe use of significant force in moving the pallets. While Henry J accepted the injury may have been aggravated by work tasks subsequently performed by the plaintiff, he considered the injury was caused by the application of high force when initiating the movement of heavily laden pallets with the pallet jack.

It was also determined that a reasonable employer would have apprehended that the pallet jack was an item of plant which, if pulled or pushed with high force to move laden pallets, could potentially cause a musculoskeletal injury. Accordingly, Henry J considered that a reasonable employer would be prompted to carry out a risk assessment to identify what manner of use of the pallet jack may pose a risk of musculoskeletal injury to the operator.

Henry J further considered that had a risk assessment been carried out, the defendant employer would likely have turned its corporate mind to the real prospect of a worker’s occasional perceived need to move pallets quickly and thus the prospect of the worker applying sudden ‘forceful muscular exertions’ with the pallet jack. Henry J found this prospect was made even more likely on account of the unambiguous demands of priority of the landlord’s right of unimpeded warehouse passage.

Henry J found that isolated circumstances of temporal pressure were the very type of circumstance which a risk assessment would identify as most likely to attract the use of high exertion and thus most likely to cause injury. Henry J concluded that the potential use of high force made it a hazardous manual task posing a risk of injury to the musculoskeletal system. Accordingly, he considered that such risk was foreseeable to a reasonable employer in the defendant’s position and would likely have been well appreciated had a reasonable approach to identifying and managing such risk, been deployed.

Henry J noted that while mere observation of someone pulling gently backwards to initiate the movement of a pallet jack may not, to the uninformed observer, result in identification of the task as hazardous, the prospect of a worker applying higher force, over-exerting themselves in the performance of a manual handling task is foreseeable, and all the more so by reviewing available information about manual handling tasks.

Henry J rejected the defendant employer’s submissions that the plaintiff would have acted as he did in response to the time pressure even if he had been instructed and trained to refrain from exerting high initiating force. Henry J was of the view the submission assumed that any instruction or training would be delivered as a superficial exercise merely for show, to protect employers from liability, rather than approached with educative competence, genuinely calculated at actually protecting worker safety. In that regard, Henry J considered a reasonable employer would deploy the latter approach.

Henry J inferred on the balance of probabilities that the genuine and competent approach to instruction and training which a reasonable employer would have taken would have resulted in the plaintiff refraining from the use of high initiating force when needing to tend to the prompt movement of the pallets.

Accordingly, Henry J concluded that given such instruction and training should have been given by the defendant employer if meeting its duty of care and given the injury in question would not have occurred if such instruction and training had been given, it was appropriate for the scope of the defendant employer’s liability to extend to the injury.

Judgment was in favour of the plaintiff in the amount of $824,647.48 in damages.

Implications for you

This matter underpins the significance of conducting risk assessments to identify hazardous manual tasks that are not necessarily obvious to the uninformed observer. Had the employer in this case upheld his duty to assess and identify the relevant hazards, specifically in moments of temporal pressure, the unnecessary risk of injury would likely have been reduced or avoided entirely.

Source: Lexology

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