Most workplaces have a First Aid Officer, but what happens if the First Aid Officer is injured while rendering first aid?
In this article, Anna Hendry discusses a recent decision from the New South Wales District Court involving a First Aid Officer who suffered an injury while administering first aid and sued his employer, alleging his injuries were either due to a lack of training, or due to the act of the injured person for whom the employer was vicariously liable.
Joe Salvadore Lembo v Pacific Brands Holdings Pty Ltd [2015] NSWDC 35
Key points
- In order for an allegation of lack of training to be successful, the worker must show not only that there was a gap in the training but that gap was causative of the relevant incident and injury.
- If an employer is to be found vicariously liable for the act of another person, it must be established that:
- The other person was an employee; and
- The relevant act fell within the employee’s authority and was an act which the person was employed to do or which was incidental to their employment.
Facts
Mr Lembo, the Plaintiff, sued his employer, Pacific Brands Holdings Pty Ltd (Pacific), in relation to an incident that occurred on 3 September 2010 at his place of employment. The Plaintiff, who was a First Aid Officer, was attempting to assist a person who had fallen down some stairs when he suffered an injury to his back. The back injury occurred when the injured person unexpectedly grabbed the Plaintiff in an attempt to stand up and again when the injured person, who was by then standing, collapsed into the Plaintiff’s arms. The Plaintiff felt a pinch in his back on both occasions.
Judgment
There were two main issues in dispute, firstly whether the Plaintiff’s training in relation to first aid was sufficient and whether the employer was vicariously liable for the actions of the injured person in grabbing onto the Plaintiff to stand up.
Training
The Plaintiff was the appointed first aid officer for Pacific and had received training for that position through St John Ambulance and Pacific’s human resources department. He gave evidence that he specifically received training on identifying risks, not putting himself in danger and not moving a casualty unless necessary.
District Court Judge Hatzistergos found the Plaintiff did not establish that there were any deficiencies in the training provided that caused him to suffer the back injury. Further, no evidence was provided about what other or additional training ought to have been provided.
Vicarious liability
The only evidence that was available in relation to whether or not the injured person was an employee was the Plaintiff’s verbal evidence. He testified that he had seen the injured person once before at the premises and that one of his colleagues told him that the person was “in sales”. Although Pacific did not lead any evidence on the point, Hatzistergos DCJ determined that the Plaintiff’s evidence did not establish that the injured person was an employee of Pacific, and that Pacific was not required to lead evidence to rebut that allegation. Consequently, it was found that Pacific could not be held liable for the injured person’s actions.
District Court Judge Hatzistergos also considered the second limb of the test; whether the relevant act fell within the injured person’s authority and was an act she was employed to do, or was incidental to her employment. He found that the second limb was also not fulfilled, and in particular, that grabbing onto the Plaintiff was not something the injured person was (allegedly) employed to do.
The Plaintiff’s action against Pacific failed and he was ordered to pay Pacific’s costs.
For more information or discussion, contact HopgoodGanim Lawyers' Insurance team.