A first aid instructor has drawn my attention to an interesting case – Lembo v Pacific Brands Holdings [2015] NSWDC 35 and asked the following questions:

In a First Aid Forum the judgement in Lembo v Pacific Brands and your blog ‘Can Trainer/Assessors be liable for poor performance by former students? (October 13, 2016)’ has sparked a lot of conversation about the large amount of short duration First Aid courses that are available across Australia and whether the judgement in the case would be different if the court had found that the course was not of sufficient

To my mind it raises the question is a short course a sufficient amount/level of training and could the lack of training cause harm to the first aider or a patient.

In the case above the training was conducted by St John who refuse (like our organisation) to conduct short courses. I have seen full HLTAID003 Provide First Aid courses run for as little as 2- 3.5 hours face to face plus some online training.

It would be interesting your opinion on the circumstances whether a plaintiff might be successful in suing:

  • An employer who asked for a short First Aid course and it was delivered without sufficient training including missing assessment requirements in the training package.
  • Whether the trainer/training company could be held liable for conducting a course that did not meet the performance or knowledge assessment requirements in the training package.

I think your respected views would benefit the industry, community safety and hopefully clean out some of the dodgy operators.

Lembo v Pacific Brands Holdings [2015] NSWDC 35 involved a claim by a company first aid officer who injured his back whilst rendering first aid to a person who had fallen down the stairs.  The injury occurred when the patient ‘grabbed hold of his arm and gave it a reef in an attempt to get up. He assisted her up, she had hold of him anyway, whereupon she fell on top of him, hurting him and there seems to be no doubt that in that manoeuvre he sustained a very serious lumbar spinal injury…’ ([10]).  The plaintiff’s claim in negligence was based on an allegation that the training he received from St John Ambulance and his employer was inadequate.   It should be noted that this claim was against the employer, not St John Ambulance.  As they were not a party to the action, St John was not involved in leading any evidence as to the quality of their training.    The gist of the complaint boiled down to a claim that the employer failed  ‘…to instruct the Plaintiff that an injured person should not under any circumstances be lifted if there was any doubt that such person was not able to assist in any lift or transfer’ ([34]).

The judge rejected the plaintiff’s claim.  Whilst giving evidence the plaintiff agreed that during his first aid training he had been instructed ‘that you shouldn’t move a casualty unless necessary’ and ‘that to move someone unless necessary was a dangerous thing to do’ ([38]). During the trial (at [13]) the judge asked the plaintiff’s counsel ‘You said something should have been done about training and I’m not quite sure what it was. I mean they went to St John Ambulance what else?’  In the absence of any evidence as to what other training could or should have been provided, the judge rejected the plaintiff’s claims.  He said (at [42]-[44]):

In my view, the Plaintiff has not established any deficiency in the training provided that was causative of the Plaintiff’s injury. No evidence was provided nor did the submission identify as to what other or additional training ought to have been provided.

The Plaintiff was trained not to lift and not to go anywhere near if there was a danger to him. According to his evidence an ambulance was called and he instructed the injured person not to move. The person moved nonetheless using him for support. The evidence discloses that physically he sought to support the person rather than restrain her. To the extent he was called upon to do anything, the circumstances alleged fall into the category of what the High Court described in O’Connor v Commissioner for Government Transport as follows:-

“It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

It follows that the Plaintiff’s action must fail.

To put that into plain English, the plaintiff had received adequate training and any suggestion that, in the given circumstances, some superior officer should have given a warning, or that there should have been instruction not to do something that was obviously dangerous is fanciful.  The plaintiff lost.

So, where does that leave my correspondent?  The question said ‘the judgement in Lembo v Pacific Brands and your blog dated 13 October ‘Can Trainer/Assessors be liable for poor performance by former students? (October 13, 2016)’ has sparked a lot of conversation…’ The important thing to note here was that in Lembo, despite an allegation of some inadequate training, the claim was lost and in my post I concluded that the answer to the question:

Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time?

Was “No”.   Neither of these conclusions would suggest that there is an issue with ‘short’ first aid courses.

The judgement in this case did not turn on what the judge thought of the course.  The judge was not asked to assess whether the St John course was, or was not of sufficient.  He asked the plaintiff, via his lawyer, what else could the employer do other than send him to a trainer such as St John but there was no evidence or assessment as to the nature of the course or how it was taught.  Remember too that St John was not a party to the action so there was in fact no suggestion that the St John training was inadequate, just that the employer should have given some extra warning not to move or support the patient, a risk that was so patently obvious that no warning was required.  The St John training was not in issue and the case in no way turned on the fact that ‘training was conducted by St John who refuse (like our organisation) to conduct short courses.’

If the claim had been that the St John training had been inadequate, and had St John been a party to the action and been asked to explain their training then there may have been an issue if they had failed to deliver some key message, but that was not this case.

Whether a short course is sufficient or not is not really a legal question.  An instructor/examiner with a registered training organisation has to deliver the training package and an assessor has to sign off if, and only if, the candidate is competent.  If either the instructor or examiner takes a short cut in the process then there could be liability, in the right circumstances.  The most obvious liability is for breach of contract and breach of provision of the Australian Consumer Law rather than negligence, but in the right circumstances such an action could be possible. Remember in my earlier post, I said that an instructor would not be liable for subsequent poor performance by a student provided that ‘that they have delivered the training and conducted the assessment (not just signed off because they are mates, or the unit needed people with those qualifications, or decided that the training was rubbish and they’d deliver their own syllabus)…’  That remains my view even if the RTO has determined the course can be delivered in a short format.

Provided there isn’t a mandatory minimum period of instruction, the point of competency based training is to be assessed as competent, not that you have spent a certain number of hours in training.

Let me turn to specific questions:

  • An employer who asked for a short First Aid course and it was delivered without sufficient training including missing assessment requirements in the training package.

An employer who signs staff up for a first aid course no doubt believes the RTO is delivering the appropriate course.  An employee could be liable if it asked the RTO to deliver a course that they know was insufficient but that seems unlikely.

  • Whether the trainer/training company could be held liable for conducting a course that did not meet the performance or knowledge assessment requirements in the training package.

The RTO could be liable to those that pay for a course if they fail to deliver the course that the customer pays for.  Being liable in negligence if there is poor performance is possible but as I’ve noted before, actually showing the causative link would be difficult depending on the time that passes between the training and the injury.   They certainly wouldn’t be liable to the patient because of the difficulty of proving the link between the allegedly inadequate training and the poor outcome and the fact that the class of patient’s is open ended and one can’t owe a duty of care to everyone.

Conclusion

I’m not sure how the decision in Lembo v Pacific Brands or my blog post  ‘Can Trainer/Assessors be liable for poor performance by former students? (October 13, 2016)’ raises the question ‘is a short course a sufficient amount/level of training and could the lack of training cause harm to the first aider or a patient?’ given that the judges conclusion, and mine, was that there was, or would be, no liability.   An RTO that believes it is delivering training that meets the training package and that its students are competent can’t be liable for their subsequent performance.  An RTO that knows it is not providing adequate training may have some liability to its students but that is more likely to be in the area of contract and consumer law rather than negligence law.