WCRA: lack of foreseeability & candour = nil breach

Rayner v Brisbane City Council [2016] QDC 100

Clare SC DCJ

The plaintiff was employed by the Brisbane City Council (BCC) as a bus driver. The plaintiff suffered an injury in 2009 when he turned his neck to the left to look toward the back of the bus to attend to a commotion between passengers. He brought a claim in the Brisbane District Court alleging that the BCC had been negligent in failing to provide adequate training and a safe system of work. He claimed that by turning his head with speed, he suffered injury to his neck.

Relevantly, the bus was fitted with a swivel seat which enabled drivers to apply the mechanism and in turn the seat would turn, preventing the need for the driver to turn their head. The plaintiff attempted to explain his lack of using the swivel because of not being trained in its use.

In holding for the defendant, Clare SC DCJ rejected the plaintiff’s evidence due to inconsistencies in his account of the series of events. Her Honour said:

[30] … [The plaintiff] had previously acted to conceal the medical history from the defendant. His version at trial was unlikely. Moreover, he has given materially different accounts of the event, in particular, the reason for the turn and the nature of his movements. His very first account, within a short time of the injury, was about students in bus seats. If there had been a loud and aggressive argument between standing passengers, it would be odd to mention only the more mundane issue of seating. It might also be questionable to send the students towards that argument. In any event, while the plaintiff‘s testimony stressed the speed, and by implication, the urgency of the turn, he struggled for a credible explanation for such urgency.

Further, the plaintiff had a pre-existing neck injury which he said had “been aggravated a couple of times but it’s always got better.” However, on applications for the employment as a bus driver, the plaintiff had been persistently inconsistent when answering questions on application forms regarding neck pain. Clare SC DCJ said in this regard:

[17] The irresistible conclusion is that through the course of the three applications, the plaintiff made multiple false representations about his medical history in order to secure employment. Despite having suffered three major injuries in the seven years before his first application he had consistently failed to mention any of those matters in any of the questionnaires, interviews or examinations. The concealment of the history of neck injury was probably deliberate.

When considering whether the risk was foreseeable and whether it could be avoided by reasonable steps, Clare SC DCJ said:

[35] The immediate cause of the plaintiff’s new injury was the turn of his head. Even if a minor injury from such an ordinary activity would have been foreseeable by a reasonable employer, I am satisfied that the risk of a substantial injury was not reasonably foreseeable. The underlying cause of the plaintiff’s injury was his pre- existing condition. Hindsight suggests that, notwithstanding the clearance from his doctor, the plaintiff’s cervical spine was too fragile for bus driving. There is no evidence that the defendant knew or ought to have known that. Despite the defendant’s reasonable enquiries, the plaintiff had withheld relevant information. The defendant is not liable for the plaintiff’s proven unsuitability for the job. A significant injury from a turn of the head was not reasonably foreseeable from the defendant’s position. In any event there was nothing the defendant could have done to avoid it, short of shutting down the bus service.

[37] The plaintiff’s case for breach of duty hinged upon an extreme movement. It did not suggest that the need for turning the head could be avoided. Release and operation of the swivel seat was to minimise the risk of injury from protracted and repetitive turning while the bus was stationary. It was not intended to, nor could it, remove the need for turning the head while driving. Turning the head to the left was an unavoidable and basic incident of driving. For example, bus drivers need to constantly check the left hand mirror to change lanes, or monitor traffic. There was no suggestion that the ordinary requirements of driving could be replaced. There was no practical means of neutralising any foreseeable risk.

Her Honour was not persuaded that the plaintiff’s injury was caused by any breach of the defendant’s duty of care. The plaintiff’s case was dismissed.

David Cormack – Brisbane Barrister & Mediator

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