The Walking Backwards Case

On 12 April 2013 judgment was given in an action which was affectionately referred to in our office as the “Walking Backwards Case”. Judgment was given in favour of Christine Weaver in the sum of $369,000.00 (clear of the WorkCover refund of $108,000.00). Christine Weaver suffered injuries to her tailbone, spine and hips in a training manoeuvre at the Frenchville Sporting Club in Rockhampton, when she fell whilst training staff working for the Endeavour Foundation, to escape from an aggressive client when sitting at a desk. As a result of her physical injuries she also developed a depressive illness.

After originally being injured and undergoing medical treatment and being assessed for permanent impairment, Christine sought legal advice from a “no win no fee” firm and was given advice that she had great prospects with respect to recovering damages from her employer’s insurer WorkCover Queensland. At the pre-court procedure Compulsory Conference she was told in no uncertain terms by the Defendant’s Solicitors that it was considered that her Solicitors were not convincing in their arguments that the employer was negligent and further that the employer had done everything practical in training her and no liability was accepted for her injuries.

After losing confidence in her “no win, no fee” solicitors Christine was induced to engage a further solicitor in the south. Unfortunately that solicitor was slow in progressing her action and following orders being made that she complete certain court documents within fourteen days Christine sought the assistance of Macrossan & Amiet in May 2012.

After completing disclosure of documents and a Statement of Loss and Damage, Christine asked for our advice as to whether it was worthwhile to proceed with what was clearly a difficult action. Our initial reaction was that it was not normal to require people to walk backwards.

It was particularly not normal to require employees to walk backwards quickly, as there is a foreseeable risk that a person could fall and injure themselves.

There have been a number of cases over the years where employees who have been walking backwards and have tripped or fallen into pits or holes have had their damages reduced for not keeping a lookout as to where they were walking.

Further research located a case where a basketball referee in Mount Isa was awarded damages when she fell and was injured running backwards. In that case there was evidence from experienced referees to the effect that a safer method was to skip sideways along the side of the court.

Evidence was obtained from Brendan McDougall, ergonomic engineer of the Intersafe Group that any backwards movement involves not only likelihood of an underfoot incident occurring but due to the limitations of vision, the limitation of protective reflexes to reduce damage during a backward fall.

After weighing the risks Christine instructed us to proceed with her action. After having the action transferred from the District Court in Brisbane to the Supreme Court in Rockhampton, the matter came on for hearing in March 2013. The trial ran for three days.

The whole judgment in the case can be read on the Macrossan & Amiet website under “Services > Personal Injuries > Cases” or at macamiet.com.au/services/personal-injuries/personal-injurycases/.

In addition to there being some humorous remarks by the trial Judge, the decision highlights:

• A duty is owed by an employer to take reasonable care to avoid exposing employees to unnecessary risks of injury.
• The duty is owed to each individual employee personally. The employer must take into account the shortcomings and idiosyncrasies of the employee that are known to them.
• The employer’s duty is to establish, maintain and enforce safe systems of work.
• The employer is not simply under a duty to exercise reasonable care towards an employee but is under a higher duty – a duty to ensure that reasonable care is taken.
• A principal who engages another to perform work will be liable for the negligence of a person so engaged not withstanding that they exercise reasonable care in the selection of the contractor.
• It is the employer’s obligation to determine a safe means of carry work tasks.
• It is not the employees’ obligation to determine a safe means of carrying out work tasks unless they have been provided with training and have
  demonstrated skill in determining work tasks.

Christine was represented in her action by Gene Paterson and by Barristers Graeme Crow S.C. and Jordan Ahlstrand from Rockhampton.