An interesting case, Cortes-Lagos v Journey Early Learning Group, was recently reported which was heard by the Victorian Magistrates Court. Cases from such lower courts are rarely reported.
In July 2008 the plaintiff commenced work as a childcare worker with Bright Steps Pty Ltd. In February 2017, the company was taken over by Journey Early Learning Group Pty Ltd (first defendant). On 3 August 2018, the first defendant was taken over by Only About Children Pty Ltd (second defendant). The plaintiff continued working with the first defendant and the second defendant until ceasing work in October 2020 alleging an injury to her back. The claim was rejected by the defendant predominantly because they believed the plaintiff did not injure herself during the course of her employment. The plaintiff however claimed that her childcare cleaning, bending and lifting duties caused the pain in her lower back that she was now having. Issues were raised in relation to the plaintiff being involved in a cleaning business and surveillance footage of the plaintiff. However, the Court looked at all the evidence in detail and accepted that the plaintiff would regularly change nappies up to five times a day for up to ten babies and ten infants a day and that she would have to lift the babies in and out of their cots when giving them bottles or they were crying on a repetitive basis. It was also accepted that the plaintiff would occasionally have to pick up heavy rubbish bags full of used nappies and throw them into a dumpster outside the childcare centre. The plaintiff was also required to clean the bathroom and toilets, mop the bathroom floor, and mop the children’s area when they were asleep. In cleaning the toilets, the plaintiff would have to bend over and use a brush to clean behind the toilet. The Court also accepted that the the plaintiff would have to manually move playground equipment outside in the morning and bring the equipment inside at the end of the day. In summary, the Court accepted "...the plaintiff’s evidence that her work duties as a childcare worker involved repetitive bending and lifting, and doing this work caused her to have lower back pain." (para. 419). On the other hand, the plaintiff said her work as a cleaner mainly involved her performing supervisory duties as well as cleaning and dusting.
The Court accepted that the plaintiff’s employment with the defendants were significant contributing factors to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury to the plaintiff’s lower back and concluded (paras. 475-8):
I find that the plaintiff suffers from persistent lumbar and right leg pain consistent with L5/S1 degeneration and right-sided disc protrusion arising out of, or in the course of, her employment with the first defendant and the second defendant.
The plaintiff’s employment with the first defendant and the second defendant was a significant contributing factor to the said injuries.
The plaintiff has an incapacity to perform her pre-injury employment as a childcare worker. This incapacity commenced on 22 October 2020. The plaintiff’s incapacity for work has resulted from or is materially contributed to by the said injuries.
The plaintiff is entitled to weekly payments of compensation at the rate appropriate for no current work capacity, together with reasonable medical and like expenses, from 22 October 2020 to date and to continue in accordance with the WIRC Act.
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