An employee suffered musculoskeletal injuries when he was startled by a gas detector unit which caused him to turn sharply and strain his neck and shoulder.
- The decision considers whether the employer was liable for musculoskeletal injuries suffered by the employee when the gas detector unit alarm accidentally activated in an office setting.
The accident occurred on 12 March 2012. The injured employee was seated, working at his desk in an open plan office known as the Operations Room. A fellow employee switched on a 'gas detector unit' that was on a table behind the injured employee. The gas detector unit was a device used by the employer's service technicians working off-site in enclosed spaces to detect hazardous airborne substances. The unit was designed to sound an alarm if it detected hazardous substances in the air. In this case, the unit was defective, and the alarm went off when the device was switched on. The injured employee was startled by the alarm and he reacted by turning sharply to his left to identify the source of the noise. His knees hit the side of his desk. He felt pain to his neck and left shoulder, and partly in his right shoulder.
As a result of the accident, the injured employee suffered, amongst other things, a cervical injury comprising an acute exacerbation of degenerative change at the C4/5 level, and low grade left C5/6 facet joint inflammation.
The injured employee claimed that his injury was caused by the employer's negligence, breach of contract and breach of statutory duty. He argued:
- The employer's management knew or ought to have known that the gas detector was faulty and negligently permitted it to be left in the Operations Room where it could be accessed, instead of ensuring that it was decommissioned and/or safely secured elsewhere.
- Alternatively, the employer was vicariously liable for the fellow employee's negligence in that he switched the gas detector on and thus set off the alarm when he knew or ought to have known that it was unsafe to do so.
The decision at trial
The Judge found that the employer was liable for permitting the faulty gas detector to be left in the Operations Room where it could be accessed, instead of ensuring that it was decommissioned and/or safely secured elsewhere. The Judge found, in effect, that there was a foreseeable risk of musculoskeletal injury that an employee working in the Operations Room faced from the alarm of the faulty gas detector unit going off unexpectedly.
The Judge found that, as a matter of common sense, many possible measures could have been taken by the employer to minimise the risk of harm. These included, tagging out the defective unit; and placing it in an inaccessible place. Accordingly, the Judge found the employer to be negligent.
The injured employee was awarded damages of $1,976,364.40 (inclusive of indemnities owed to the workers' compensation insurer, Medicare and HBF).
The decision on appeal at the Court of Appeal
The employer appealed the decision, and alleged:
- That the Judge erred in law in finding that there was a reasonably foreseeable risk of injury in the circumstances of the case.
- The Judge erred in law in finding that the employer breached its duty of care to the injured employee.
The employer's appeal was dismissed by the Court of Appeal.
The majority of the Court of Appeal (Buss P and Vaughan JA) noted that the relevant risk was that an employee working in the vicinity might suffer a personal injury as a result of the defective gas detector being left non-decommissioned on the table in the Operations Room. The risk arose from three factors. First, the faulty nature of the gas detector (something known to the employer). Second, the location of the gas detector - it was left unsecured in an environment where, if turned on, it would emit a loud, piercing and unexpected noise immediately behind a group of employees likely to be seated at their workstations in front of a computer. Third, the possibility that someone might switch on the gas detector. The majority confirmed there was a reasonably foreseeable risk of injury.
The majority also confirmed the circumstances were such that the employer was not entitled to ignore the risk of injury. A reasonable person in the employer's position would have responded to the risk by taking one or both of the identified alleviating measures: the reasonable response to the relevant risk was to minimise or eliminate the risk by tagging out the defective gas detector or placing it in an inaccessible place. Thus this was not a case where the employer acted reasonably by not taking any action at all in response to the risk of injury occurring. To the contrary, the employer failed to take reasonable steps to provide a safe place of work and thereby breached its duty of care to the injured employee to take reasonable care to avoid exposing him to unnecessary risk of injury.
Implications for you
The decision highlights the duty of care owed by employers is onerous, and employer can be liable at common law even where there is a slight risk of a non-trivial injury.