Weaver v Endeavour Foundation [2013] QSC 93 (Supreme Court of Queensland, McMeekin J, 12
April 2013)
This was a claim in negligence against the defendant charity, the Endeavour Foundation. At the
material time the plaintiff, then aged 48, was employed by the defendant as a senior individual funding
services manager. The plaintiff fell during a training session she was conducting in Rockhampton in
May 2008. The training was in how to deal with aggressive clients, and involved a movement called a
‘back-steps’ manoeuvre, in which the evidence showed that the plaintiff had received proper training
herself. This manoeuvre consisted of walking backwards on the balls of the feet in a slightly crouched
position while keeping attention directed strictly ahead towards the aggressor. When attempting to
demonstrate the manoeuvre to trainees, the plaintiff fell onto her buttocks and back on a carpeted
surface and suffered the injuries which were the subject of these proceedings.
An employer’s duty of care towards employees is well-established. For an employee to succeed in a
cause of action in negligence against an employer the employee must establish:
(a) that the task involved a foreseeable risk of injury;
(b) that there were reasonably practical means of obviating that risk;
(c) that her injury belonged to the class of injury to which the risk exposed her; and
(d) that the employer’s failure to eliminate the risk showed a want of reasonable care for her
safety.
His Honour said that this necessarily involved a consideration of ‘the shortcomings and
idiosyncrasies’ of the actual employee in question. The plaintiff was overweight. She was wearing
running shoes, which on the evidence caught on the carpet as the plaintiff was moving backwards,
and caused her to fall. There was no question of a problem with the carpet, but it was possible that a
change in floor level contributed to the fall.
His Honour could see no problem with the foreseeability question (at [55]–[56]):
It seems to me clear beyond doubt that directing a middle aged and, with respect, overweight
lady to walk backwards on the balls of her feet while keeping her attention directed not to
where she was going but to the ‘aggressor’ in front of her from whom she is retreating
involves a risk of injury that she might fall over. It is nowhere near ‘far fetched or fanciful’. The
risk is obvious, real and not at all unlikely to occur. That is so irrespective of whether the
plaintiff was required to traverse a change in the level of the carpet and irrespective of the grip
characteristics of her shoes. A change in level would compound the risk, as would the grip
characteristics too. So much seems obvious to me.
On the issues of reasonably practical means of obviating the risk, His Honour could see no issue with
the type of surface or shoes involved. The most obvious means of lowering the risk of the manoeuvre
was to conduct it slowly. The plaintiff had done it quickly in accordance with the training she had
received. Subsequent training in the practice (by a different trainer) had emphasised slowness. His
Honour said (at [60]):
Such a direction would have substantially reduced the risk and given that the plaintiff had
practised the technique previously and had some experience with it, justifies a finding that the
fall would probably have been avoided in this instance had such a direction been given.
In relation to the class of injury question, His Honour held very briefly that (at [70]): ‘Plainly enough the
plaintiff’s injury fell into the class of injury to which the risk exposed her.’
The remaining issue was want of reasonable care by the defendant charity. The act complained of
was one of commission rather than omission (as is the more common in these types of cases). As
His Honour pointed out (at [76]):
The complaint here – restricted to the question of instruction – is one of commission. The
crucial point here is that the employer through its contractor [the previous trainer who had
trained the plaintiff in the back steps manoeuvre] positively increased the risk of injury to
which the plaintiff was exposed. The plaintiff was endeavouring to perform her duty to the
best of her ability. She felt duty bound to carry out her instructions to perform the task quickly.
[The new trainer’s] approach shows that the instruction was unnecessary.
The defendant was liable for the injuries sustained by the plaintiff while demonstrating quickly moving
backwards as part of a defensive manoeuvre. His Honour findings on this point were (at [78]):
No doubt many employees throughout Australia walk backwards at some point in their
working day to carry out their tasks. It is an everyday event carried out without injury or
incident in the vast majority of cases. Generally speaking an employer would not be liable for
a worker tripping over as they walked – forward or backwards, absent some other feature. To
succeed the plaintiff must take this case out of the usual. There are four features which in my
opinion do that:
(a) The plaintiff was a middle aged overweight lady, not a robust or athletic person, or even a
person accustomed to physical activity – the likelihood of a fall occurring was greater for her
and the potential consequences more serious;
(b) The plaintiff did not choose how she walked backwards – she was directed how to do so.
She was supposed to walk backwards on the balls of her feet. This too increased the risk of
mishap;
(c) The plaintiff was not to keep her attention where she was headed so she could see where
she was to place her feet. Rather her attention was required to be directed to the ‘aggressor’
in front of her from whom she was retreating. Again this increased the risk of mishap;
(d) To this ever increasing risk of mishap is added the requirement that this unnatural activity
be done quickly.
The risk involved was not just ‘an everyday, obvious risk against which the employer need take no
precautions’ (at [81]). A positive instruction had been issued to the plaintiff by her employer (via its
trainer) that increased her risk. The defendant thereby exposed its employee to an unnecessary risk
of injury.
There was considerable medical evidence as to the physical and psychiatric injuries suffered by the
plaintiff as a result of her fall. She had numerous physical ailments and major depressive illness, for
which the plaintiff claimed in excess of $1 million. After detailed consideration, the amount of
damages awarded was $369,000.02, consisting of the following components:
Pain, suffering and loss of amenities of life
Interest on past general damages
Past Economic Loss
Interest on past economic loss
Future Economic Loss
$50,000.00
$2,470.00
$145,000.00
$21,700.00
$110,000.00
Loss of superannuation benefits
$22,950.00
Special damages (paid by WorkCover)
$41,729.12
Special damages (paid by the Plaintiff)
$23,854.45
Interest on special damages
$4,900.00
Future medical expenses
Fox v Wood
Future Paid Care
$15,000.00
$9,705.00
$30,000.00
Total Damages
$477,308.57
Less refund to WorkCover
$108,308.55
Net Damages
$369,000.02
The case may be viewed at: http://www.austlii.edu.au/au/cases/qld/QSC/2013/93.html
Implications of this case
The reasonable foreseeability of injury is a key component in liability for negligence. In this case, the
defendant charity was held to have been negligent not to have foreseen the risk of injury to an
overweight employee who had been instructed to perform the particular defensive movement quickly,
and had conscientiously tried to do so in accordance with her training. Instructing her to do the
manoeuvre slowly was held to be the obvious means of reducing the risk to the employee, and was
actually what was advised in training subsequent to the training the plaintiff had received.