McKenna v Karingal
Background
As part of her duties as a disability support worker with the defendant, Karingal Inc (“Karingal”), Ms Kim McKenna took two clients for a recreational excursion to Hopkins Falls. These two clients as well as others like them require a platform which folded out from the rear and then lowered to the ground to enable access for wheelchair-bound clients.
The platform, when in its retracted position, prevented access into the van by someone standing at the rear. This meant two rear restraining straps used to secure the wheelchair in position could not be released unless the platform was “unfolded” out of the van. The platform mechanism was operated by a control device. That enabled the operator to unfold the platform so that it was level with the floor of the van, and then to lower it to the ground.
Ms McKenna is of short stature, less than five-feet tall, and is of large build. The problem she faced was that, even with the platform lowered to the ground, she was not tall enough to reach into the van to release the back straps, an operation which required her to use both hands. Her practise was to lower the platform to the ground, stand on it and “ride” it up so that it was about level with the floor of the van. She could then reach in and release the rear straps.
Ms McKenna said the only instruction she received in the use of the bus was from team leaders, Rebecca and Lisa, over five or ten minutes.
On the date of the incident, Ms McKenna described the surface of the parking area where the van was parked as asphalt and gravel, with an uneven surface. As she was lowering the platform to assist her two clients, she stepped off to a distance she felt was safe and comfortable. She did not look at the ground before she stepped down.
Ms McKenna subsequently fell and was unable to get up. She had dislocated her knee and fractured her fibula. Most significantly, she tore her medial patellofemoral ligament in her left knee requiring a total left knee replacement.
The Claim
The claim was brought in negligence. The plaintiff alleges her injuries arose as a result of the breach by Karingal of the duty it owed as employer to properly train her. There were several issues to be determined at the proceeding. It was methodically approached.
- What instruction and training was provided to Ms McKenna as to the use of the platform, in particular, whether the platform should be lowered to the ground before alighting?
- The analysis of whether the training was adequate must be assessed prospectively and not with the wisdom of litigious hindsight.
- It was not unreasonable for Mc McKenna to disembark from the platform looking forward into the bus in the manner she did.
- With these matters in mind, the judge found that the instruction and training was deficient. It was reasonably foreseeable that workers such as Ms McKenna would disembark into uneven surfaces. The training she received was very brief. The judge found that this creates a real risk of injury which Karingal ought to have trained her to prepare for.
- The judge found Karingal liable in negligence for failing to provide adequate and appropriate training and instruction.
Contributory negligence
The judge considered the circumstances and conditions surrounding the system of work to determine whether if Ms McKenna’s conduct amounted to mere inadvertence, inattention or misjudgement.
The judge was not satisfied that Ms Mckenna merely stepping alight from the platform was careless. However, what was clear from the evidence was that she was aware of the uneven, potholed, surface of the car park. Reasonable care would require her to keep a better lookout.
The judge found that the departure by the defendant from its obligation to adequately train and instruct the plaintiff was significantly greater than Ms McKenna’s departure, apportioning responsibility for Ms McKenna’s injury as to 75 per cent to the defendant and 25 per cent to Ms McKenna. the injury. Damages amounted to $250,000.
Damages
Due to some inconsistencies in evidence and reservations about the extent of the seriousness of her injuries, the judge assessed the final amount as covering most of her expenses resulting from the injury. Damages amounted to $250,000.