WCRA: pre-2010 obvious risk and foreseeability

Heywood v Commercial Electrical Pty Ltd [2013] QSC 52

The plaintiff was injured on 17/10/2008 when descending a ladder he severed his ulnar nerve on a sharp piece of scrap metal. His claim was dismissed, in part by reference to the expert reports and by regard to the test of foreseeability, finding it was an obvious risk, which his employer had taken adequate precautions for. His Honour was not swayed he was an inexperienced first year apprentice on his probationary period.

Martin J:

Consideration of liability

[16] The evidence was clear that the plaintiff understood and appreciated the risk that exists when handling sharp objects in the workplace. He accepted that care needed to be taken in handling such objects and in working with or around such objects. The piece of U-shaped channel that cut the plaintiff’s elbow had been created by the plaintiff when he cut it to size and he knew that it was sharp at all material times.

[17] The system which was created for the protection of the electrical cabling was one developed by the subcontractor which was then adopted by the defendant. Expert evidence was adduced by each party with respect to the means by which the dangers associated with the sharp edges of the U-shaped channel could be reduced or completely obviated. For the plaintiff, evidence was given by Mr Phillip Byard.

[18] Objections were taken by Mr O’Driscoll to the admissibility of the reports sought to be tendered by the plaintiff. The first report (November 2011) and the second report (March 2012) were the subject of objection. Following argument, I admitted part of the first report from page 9, line 22 to its conclusion and the second report in its entirety. As a result, those reports provide evidence about products which the authors of the reports say are alternative methods of protecting cables from sharp edges.

[19] The defendant called evidence from Mr Derek Green. He provided two reports – November 2011 and April 2012. His reports were directed to the requirement to comply with the Electrical Safety Act 2002 and associated standards. I am satisfied that his expertise qualified him to express opinions about the extent to which proposed means of protecting the cables advanced for the plaintiff would or would not comply with the relevant standards.

[20] He expressed the following opinions:

(a) That the method used by the defendant to protect the sharp edges of the top plate complied with the requirements of the Electrical Safety Act and the relevant standards,

(b) The alternatives proposed by Mr Byard in particular, the use of spiral binding or rubber edge protection, would not comply with the requirements of the Australian Standards.

[21] The reports by Mr Green exhibited a practical understanding of the problems which would be encountered in the situation which gave rise to Mr Heywood’s injury. They also exhibited an understanding of the relevant statutory requirements and the requirements of Australian Standards. The reports by Mr Byard do not deal with the issue of those standards and appear to have been misguided to the extent that is apparent from the first part of the November 2011 report where the engineer purported to analyse the accident. I prefer the opinion of Mr Green and I am satisfied that his evidence establishes that the means used by the defendant were both appropriate and would satisfy the requirements of the standards and the statute. It follows, then, that the alternative systems proposed by the plaintiff were systems which would not have been appropriate in these circumstances. The duty which the employer owed under the Electrical Safety Act was discharged by its implementation of the system used by the plaintiff.

[22] I turn to the issue of whether the risk of injury was reasonably foreseeable and, in doing so, bear in mind the observations of Keane JA (as his Honour then was) in Hegarty v Queensland Ambulance Service[1]:

“[49] In New South Wales v Fahy, Gummow and Hayne JJ recently emphasised that what an employer acting reasonably must do by way of care for an employee is an issue which ‘requires looking forward to identify what a reasonable employer would have done, not backward to identify what would have avoided the injury.’ One must not lose sight of the important reasons for circumspection on the part of an employer which may reasonably forestall intervention in relation to the mental health of an employee. These considerations are easily lost from sight once an adverse outcome for the employee has resulted. It is necessary to resist the inclination retrospectively to find fault by devising chains of causation involving risks which were not reasonably regarded as significant before a particular event has occurred. In Rosenberg v Percival, Gleeson CJ said:

‘In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluation (see, eg, Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at 176; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263, 291-292. This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action.’”

[23] To similar effect are the observations by Muir JA in Lusk v Sapwell[2] where his Honour said:

“[17] The appellants argued that the primary judge approached the assessment of liability with an inappropriate and impermissible use of the benefit of hindsight. In that regard, they placed reliance on the following passage from the reasons of Hayne J in Vairy v Wyong Shire Council:

‘[124] Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equate with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.’

[18] Hayne J, in explaining why the enquiry as to whether a duty of care had been breached was prospective and not confined to the circumstances of the plaintiff’s accident, said:

‘[125] There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk.

Look forward or look back?

[126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

[127] There may be more than one place where this risk of injury may come to pass. Because the inquiry is prospective there is no basis for assuming in such a case that the only risk to be considered is the risk that an injury will occur at one of the several, perhaps many, places where it could occur. Romeo was just such a case and so is this. In both cases there were many places to which the public had access and of which the Commission (in Romeo) and the Council (in this case) had the care, control and management. In Romeo, there were many places where a person could fall off a cliff; here, there were many places where a person could dive into water that was too shallow. Because the inquiry is prospective, all these possibilities must be considered. And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as “consideration of the magnitude of the risk and the degree of the probability of its occurrence”. It is only by looking forward that due account can be taken of “the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.

[128] If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was – diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.’ (References omitted).”

[24] The plaintiff always knew that he was handling a sharp object. He gave evidence that he knew the consequences of handling sharp objects and that care needed to be taken. As he cut the U-shaped channel himself, there was no requirement for the employer to tell him it was sharp. So much was obvious from his own work. The plaintiff created the hazard himself by placing an object which he knew to be dangerously sharp with the sharp edge exposed on the toolbox close to the ladder he was using. The plaintiff conceded that he knew of the problem and that it was dangerous. He knew where the sharp object was before he ascended the ladder and he knew it was in a position which would be close to the point at which he would eventually step off the ladder after he descended it.

[25] As I have already observed it is not an employer’s obligation to safeguard an employee from all perils. See, for example, Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville[3].

[26] The duty imposed on employers is one to take reasonable care. It is not a duty to avoid all risks by all reasonably affordable means. In Rasic v Cruz[4], Fitzgerald AJA said (at 42) that:

“… a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved”.

[27] To similar effect are the statements by a unanimous High Court in Thompson v Woolworths (Queensland) Pty Ltd[5] where the following appears:

“[35] When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. …

[36] The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. …

[37] The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. In the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.”

[28] The factors that I have referred to above concerning the actions of the plaintiff and the knowledge he possessed at the time demonstrate to me that it has not been established that the defendant breached its duty to the plaintiff. It was not a difficult task, the plaintiff knew how to do the task, and the injury came about through the actions of the plaintiff.

[29] It follows, then, that the plaintiff must fail…


NB: reversed on appeal:

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270

Brisbane Barrister – David Cormack


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