Debbie Deans was employed as a specialist schoolteacher by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape on the linoleum flooring of a foyer in G Block during a ‘fruit break’ during the course of her employment, fracturing her left patella.
She sued her employer, claiming that it was negligent for failing to:
(a) take reasonable care for her safety;
(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;
(c) supervise her so as to ensure she carried out her employment safely;
(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;
(e) provide a safe work environment within which her was required to perform her duties;
(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;
(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;
(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.
305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
“305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
Deans’ lawyers argued the general notoriety of young children dropping things and leaving them on the floor meant that this risk was foreseeable as defined in section 305B(1)(a).
Farr SC DCJ rejected this argument, noting there was no evidence of any previous incidents of people slipping on things dropped by children at Riverside Christian College, or at any other school. Nor was there any evidence that Riverside Christian College knew of this particular risk of injury. Therefore, the risk was held not to be foreseeable.
The argument that Riverside Christian College had conceded foreseeability by also pleading a defence of contributory negligence was also rejected because it ignored the statutory definition of “obvious risk” contained in section 305I of the Workers’ Compensation and Rehabilitation Act, and was contrary to the High Court’s decision in Thompson v Woolworths (Queensland) Pty Ltd  HCA 19.
A further issue which Farr SC DCJ considered was whether the risk was not insignificant within the meaning of s305(1)(b) of the Workers’ Compensation and Rehabilitation Act. Farr SC DCJ noted that the fruit break had been taking place for five years without any previous incident, and the relevant area would have been traversed by thousands if not tens of thousands of people at and around the fruit breaks. For these reasons, Farr SC DCJ held that the risk of injury arising from items being dropped on fruit breaks was insignificant.
As a result of these findings, Riverside Christian College had not breached its duty of care, and therefore the claim for negligence had to fail.
Deans appealed the District Court’s decision to find in favour of her former employer.
One ground concerned a challenge to Farr SC DCJ’s finding that Riverside Christian College had conceded foreseeability and that an obvious risk existed, however Justice Gotterson of the Court of Appeal held that finding was clearly correct.
Gotterson JA held that an absence of evidence concerning dropped fruit being allowed to remain on the floor, problems with fruit breaks at other schools and the alleged notoriety of such problems was an insufficient basis for a finding against foreseeability. According to Gotterson JA, it was forseeable that fruit would be dropped, that it may not be picked up and that someone would slip on it.
However, Gotterson JA also held that because the probability of occurrence of the relevant risk was very low, Farr SC DCJ was entitled to find that this risk was insignificant. As a result, there was no breach of the duty of care by Riverside Christian College.
Gotterson JA did not accept the grounds of appeal that Farr SC DCJ had proceeded on the basis that rostering for recess applied to fruit breaks.
Gotterson JA rejected the remaining grounds of appeal challenging Farr SC DCJ’s finding that no instruction was required and that Farr SC DCJ erred in not having regard for the replacement of the linoleum flooring with carpet given Deans’ familiarity with fruit breaks and the lack of evidence that carpet would have prevented the injury.
As a result, the appeal was dismissed with costs.
This case confirms that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are significant within the meaning of the law.
This decision means that schools can have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued, as long as such activities are conducted as safely as practicable.Posted on