May 22, 2019

In the world of fruit, grapes rank the highest in the stakes of injury causation to unsuspecting foot traffic.

Such a case was yet again before a Queensland court in February to decide if Debbie Deans – a specialist at Riverside Christian College in Maryborough – was owed compensation for a school teacher injury sustained in a fall in March 2015.

The teacher had traversed a foyer where children’s school bags were racked when she slipped on a grape and sustained a fracture to her left patella.

Children in several adjoining classrooms accessed the space to retrieve a snack from their school bags for a “fruit break” after the start of the first class of the day.

The objective of the munch break was to energise lower primary children for a reading exercise and it was up to the class teacher decide its duration and how long before the mid-morning recess it was held. Usually children brought in whole fruit to their classroom for the break but grapes were not prohibited.

Debbie traversed the foyer with a large picture chart in hand on her way to a prep classroom when her leg went forward and slipped, sending her flying before she fell heavily to the floor from where she saw a squashed grape nearby.

Her lawsuit against the school alleged the probability of a slip hazard in the foyer – which the school should have guarded against – from the simple fact that five and six year old children were asked to take fruit in and out of their school bags in that space.

Riverside school principal Anne O’Brien explained to the District Court in Brisbane that for regular recess breaks, teachers were rostered to patrol and to ask students to pick up any litter they saw.

Ms O’Brien also swore that teachers were additionally tasked themselves with picking up litter observed at any time, to ensure general cleanliness.

There was however no rostered teacher patrol during fruit breaks nor any alert to be on the lookout for fruit spillage. But neither had there been any report of any injury associated with that activity.

The trial judge concluded that in the absence of evidence of any spillage issue at  Riverside or at other schools arising from such activity, nor any public notoriety of the dangers of such a system, the risk of injury arising could not be regarded as reasonably foreseeable.

He also held that given the probability of the risk of harm eventuating was so low, it was “insignificant”.

On appeal, Justice Robert Gotterson – in delivering the lead judgment – concluded that the risk of a grape falling to the floor and creating a slip hazard so as to result in an injury was indeed foreseeable.

“In circumstances where children from the three classes carry fruit usually whole pieces not in containers but including grapes, through the foyer to and from the classroom, it was foreseeable that it might be dropped, be not picked up and that someone would then fail to see it, slip and be injured”.

But when it came to assessing the significance of that risk – because there were so many steps between you and the dropping of the fruit and the ultimate injury – the probability of the occurrence was according to Justice Gotterson “very low”.

“I am unpersuaded that the learned primary judge erred in not categorising it as not insignificant,” he  unhelpfully ruled by employing a triple negative.

Translated, his honour affirmed the lower court’s finding that the risk was indeed “insignificant”, sinking the schoolteacher’s appeal.

Riverside admitted it had replaced the aged linoleum in the foyer with carpet about 12 months after the accident, a step which Deans alleged could be taken as an admission that the foyer floor surface was unduly slippery – and therefore was an unsafe work environment – at the time of her fall.

Justice Gotterson may have given weight to that submission had evidence actually been led that carpet would have reduced the risk of injury.

Deans succeeded in proving that her school teacher injury was indeed foreseeable but because the risk of its occurrence – having regard to the numerous links in the chain leading up to an actual injury – was so low, her claim could not clear the “not insignificant” hurdle embedded in the workplace compensation liability regime.

Deans v Maryborough Christian Education Foundation Ltd [2019] QCA 75 Sofronoff P and Gotterson and Morrison JJA, 3 May 2019

Categories: Personal Injury , Litigation & Law Practice , School Injury

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