No liability for employee that sustains injuries at a Melbourne Cup event held by his employer on-site

27 November 2020

The Plaintiff suffered injuries to his right shoulder and arm whilst participating in a relay race using a wooden ‘hobby horse’ during the course of his employment with the Defendant.

In issue

  • The fundamental issue for resolution was whether the Plaintiff was tripped, intentionally or otherwise, in the course of the race.

The background

On 2 November 2015, the Defendant held a Melbourne Cup function at the Degrussa Copper and Gold Mine. As part of the function, the Defendant organised a number of Melbourne Cup themed, team-based activities for its employees. In order to determine the winning team, a ‘tie-breaker’ relay race took place whereby each team was required to place a wooden 'hobby-horse' between their legs and race their opponent.

The Plaintiff contends that during his leg of the relay, another participant (and colleague) tripped him from behind, causing him to stumble and fall to the ground, landing on his outstretched right arm.

The Plaintiff commenced proceedings against the Defendant, alleging that the accident was caused by the negligence of the Defendant by failing to provide adequate supervision of attendees at the function, by failing to provide adequate supervision of the race and failing to conduct any adequate risk assessment.

His Honour Judge Troy stated the fundamental issue for resolution was whether the Plaintiff was tripped, intentionally or otherwise, in the course of the race. If the Plaintiff was unable to establish this assertion on the balance of probabilities, then the case would fail.

The decision at trial

There were no witnesses that saw the Plaintiff’s colleague trip him during the race and the Plaintiff did not contemporaneously report that he was tripped. His Honour Judge Troy concluded that the calibre of evidence adduced by the Plaintiff falls ‘significantly short’ of satisfying him, and that it is more likely than not that he was tripped.

As to the Defendant’s duty of care, his Honour Judge Troy was satisfied that a reasonable employer conducting this function would have done no more than the Defendant did and no amount of training or supervision would have prevented one participant in this race accidentally tripping or entangling with another participant so as to cause him to fall. He noted that there was no requirement on the Defendant to instruct participants to not make physical contact while running.

As to vicarious liability, his Honour Judge Troy stated that had he found that the Plaintiff’s colleague intentionally tripped the Plaintiff, the Defendant would not be vicariously liable as it would have been entirely unconnected with his colleague’s employment. In reaching his conclusion, his Honour Judge Troy stated they were off-duty employees who had chosen, under no obligation, to participate in an innately light-hearted recreational event and relevantly, there were no particular features such as authority, power, trust, control and the ability to achieve intimacy with the Plaintiff.

Implications for you

The decision highlights that whilst duty of care owed by employers is onerous, it is not a duty to protect employees from all harm.

Kremer v Sandfire Resources NL [2020] WASCA 130

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