Self-defence instruction to move as ‘quickly as possible’ was reasonable
Jan 2014 |Endeavour Foundation v Christine Anne Weaver [2013] QCA 371
Introduction
The Queensland Court of Appeal has confirmed that reasonableness of response to risk is to be assessed in the larger context of the purpose of the activity.
In this instance, it was reasonable for Endeavour Foundation to instruct the Claimant to perform the 'back steps' manoeuvre (a self-defence manoeuvre) as 'quickly as possible', as a means of avoiding assault.
Background
Endeavour Foundation provides opportunities for people with intellectual disabilities who can sometimes become agitated or violent. WorkCover records presented at trial confirmed some 90 claims arising from client assault.
To satisfy their duty of care as employer and to provide employees with protection from client assault, the Endeavour Foundation engaged consultants to train employees in 'professional assault response training' (PART). The training was designed to equip employees with techniques to avoid client assault. Once trained it was intended that employees would then become PART trainers.
Christine Anne Weaver (claimant), an employee of Endeavour Foundation attended a five day PART course in October 2005. Following completion of the course, the claimant went on to become a trainer. She trained employees in PART on six occasions prior to the incident.
On the date of the incident the claimant was injured whilst demonstrating a 'back steps' manoeuvre when her feet got caught and she fell over. She suffered injuries to her spine and coccyx.
The claimant alleged that the Endeavour Foundation had unnecessarily exposed her to a foreseeable risk of falling by requiring her to perform the 'back steps' manoeuvre 'quickly'. The manoeuvre entailed the claimant moving backwards away from her assailant, whilst looking for the closest exit point.
The primary judge found that Endeavour Foundation had unnecessarily exposed the claimant to risk of injury and awarded the claimant $369,000 in damages.
Endeavour Foundation appealed on a number of grounds claiming that the trial judge had erred in his finding that the claimant was instructed to carry out the manoeuvre quickly, when the instruction was that it was to be done as quickly as possible. They submitted in accordance with the above, the instruction was reasonable and within the bounds of the claimant's skill. It was also argued the primary judge had failed to consider the reason for issuing the relevant instruction, which was to promote employees' safety.
Findings
The evidence of Endeavour Foundation was that the claimant was told to move more quickly as she became more practised, and to move 'as quickly as possible'.
Holmes JA found the trial judge had misapprehended the nature of the instruction given to the claimant. The question was therefore whether it was reasonable for Endeavour Foundation to direct the claimant to move as quickly as she could, rather than slowly and carefully.
It was accepted on appeal that there was some risk involved in the claimant performing the manoeuvre however Holmes JA considered that the reasonableness of the Endeavour Foundation's response to the risk must be assessed in the larger context of the purpose of the activity, which was to provide employees with the means of avoiding assault.
Holmes JA found the trial judge had overlooked the benefit to an employee in being able to perform the manoeuvre quickly. The act of practising the manoeuvre was to assist employees to get accustomed to the move, to enable them to move as quickly as possible. Performing the manoeuvre slowly would be of little benefit to employees when faced with an assailant.
Holmes JA ultimately found that Endeavour Foundation had a responsibility to safeguard employees from assault and the instruction to move as quickly as possible was a reasonable one.
With the agreement of Fraser JA and Margaret Wilson J the judgment at first instance was set aside and judgment was entered for Endeavour Foundation.
Comment
This decision reinforces the comments of Gummow J in RTA v Dederer (2007) 238 ALR 761:
'It is only through the correct identification of risk that one can assess what a reasonable response to that risk would be.'1
In a real life situation an employee needs to move relatively quickly when faced with the threat of actual assault. There is limited benefit in training employees to carry out self-defence manoeuvres in a slow and careful fashion, at least not once the basics of the manoeuvre are well understood and practised.
The aim of the training provided by Endeavour Foundation was to prepare their employees to face real life client assault situations. On this basis the direction to move as quickly as possible within the individuals own physical ability and limitation was reasonable. It was reasonable for the Endeavour Foundation to rely on the Claimant's own assessment of her competency in this regard.
This decision is of relevance to those high-risk occupations where patterns of client-initiated violence have been identified and self-defence training is given.
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(1) Gummow J at [59].
