Suncorp Staff Pty Ltd v Larkin [2013] QCA 281

SUPREME COURT OF QUEENSLAND

CITATION: Suncorp Staff Pty Ltd v Larkin [2013] QCA 281

PARTIES: SUNCORP STAFF PTY LTD (appellant) v IAN DAVID LARKIN (respondent)

FILE NO/S: Appeal No 2658 of 2013 / DC No 9 of 2011

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Toowoomba

DELIVERED ON: 27 September 2013

DELIVERED AT: Brisbane

HEARING DATE: 16 September 2013

JUDGES: Holmes and Muir JJA and Philippides J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **The appeal be allowed.****The orders made on 22 February 2013 be set aside.****There be judgment for the appellant in the proceedings.**The respondent pay the appellant’s costs of the proceedings including the costs of the appeal on the standard basis from 10 December 2010.

CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the respondent was employed in the appellant’s call centre – where the respondent struck his right knee on the metal handle of a cupboard under a workbench on which the telephone he was using rested – where the primary judge accepted evidence that, over the years, a “steady stream” of employees had used the workbench without injury – where there was an identical workbench on a higher floor and the same handles were used throughout the office – where the primary judge accepted that the risk of injury was “obvious” despite the absence of prior incidents – where the primary judge held that there was “more than a slight chance” that the respondent could suffer injury by coming into contact with the handle and that the appellant breached its duty of care by failing to replace the handles – where the appellant submits that the primary judge erred in focusing on the expense, difficulty and inconvenience of taking alleviating action and in failing to consider the magnitude of the risk or the degree of probability of its occurrence – where the appellant submits that the primary judge erred in concluding that there was “more than a slight chance” that the respondent could be injured by contact with the handle – whether a reasonable employer in the position of the appellant would have foreseen that the failure to remove the handles would have involved a risk that employees could sustain injury – whether the appellant breached its duty of care in failing to replace the handles / Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14, considered / Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51, cited / Larkin v Suncorp Staff Pty Ltd [2013] QDC 28, related / Seage v State of New South Wales [2008] NSWCA 328, considered / Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, considered / Vozza v Tooth & Co Ltd (1964) 112 CLR 316; [1964] HCA 29, cited / Webb v South Australia (1982) 56 ALJR 912; (1982) 43 ALR 465, cited / Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, considered

COUNSEL: R J Douglas QC, with R C Morton, for the appellant / G W Diehm QC, with S D Anderson, for the respondent

SOLICITORS: McInnes Wilson for the appellant / Shine Lawyers for the respondent

1. HOLMES JA: I agree with the reasons of Muir JA and the orders he proposes.

2. MUIR JA: Introduction The 36 year old respondent was employed in the appellant’s Toowoomba call centre when, on 15 April 2008, he bumped his right knee on the metal handle of a cupboard under a workbench on which the telephone he was using rested. The respondent sued, alleging that the soft tissue injury to his knee, complex regional pain syndrome and his consequential psychological injuries were caused, inter alia, by the appellant’s breach of duty not to expose the respondent to any risk of damage or injury of which the appellant knew or ought to have known. After a two day trial, the primary judge found the appellant liable and ordered that it pay the respondent $245,000 damages (which amount had been agreed) together with costs from 10 December 2010. The appellant appealed against those orders on grounds that will be discussed in the course of these reasons.

3. The only findings of fact which are challenged in the grounds of appeal are the findings that:

“there was more than a slight chance”¹ that the respondent, as an employee, could be injured by contact with one of the door handles; and

a reasonable employer in the position of the appellant would have replaced the door handles.²

The dimensions and location of the bench and the door handle

4. It is desirable to describe more fully the bench and the door handle which caused the respondent’s injury before stating the circumstances in which the injury occurred. The bench was positioned against the wall of a hallway. The wall opposite the bench had noticeboards on it, but was otherwise unfurnished. Above the bench, which was approximately 2400 mm wide, 750 mm deep and 900 mm high, was shelving used for the storage of items such as ring binders. Immediately under the bench was an open shelf. Underneath that shelf were cupboards, approximately 540 mm in height, extending almost to the floor. Each of the cupboard doors had a 10 mm thick, 138 mm wide metal handle which protruded approximately 38 mm from the cupboard door, was rectangular in shape with right angled edges and was positioned approximately 460 mm above the floor. The outside corners where the shorter lengths of the handle merged with the longer horizontal section were slightly bevelled or rounded.

5. The actual shape of the handle and the sharpness of its edges were not the focus of the respondent’s argument at first instance or on appeal. The argument centred around the extent to which the protrusion of the handle from the front of the cupboard, having regard to the absence of an overhang of the top of the bench and the placement of the telephone, was likely to give rise to a risk that an employee might inadvertently strike the handle and be injured. There was no evidence that the respondent’s injury included a laceration.

6. The gap between the bottom of the cupboard door and the floor was 50 mm which was insufficient to provide a space into which part of a person’s shoes could be inserted when standing at the bench. On top of the bench were: a telephone; a fax machine; a printer; a photocopier; and filing trays. Staff used the bench to operate such devices and to perform tasks such as collating printed and copied material.

7. Because of the absence of a toe recess, users of the bench were obliged to stand out from it and the primary judge found that the respondent:³

“… accepted he had to bend a fair way forward with his knee before he could possibly hit the handle because of the fact that the toe board or the absence of any indent for the toe meant he was standing out from the bench.”

The incident

8. The primary judge described the incident by referring to the following evidence of the respondent which he accepted:⁴

“He said he placed the phone back on the hook and as he went forward to place it on the hook and turned to his left to go back towards his desk he ended up striking the inside of his right knee on the cupboard door handle.”

9. The respondent had finished a private telephone call when injured. There is no evidence of his ever having used the bench for work purposes.

The evidence of the respondent’s co-workers

10. Ms Bennett, whose evidence the primary judge accepted, said that she had worked at the call centre since the end of 2006 and was the respondent’s “team leader”. The telephone used by the respondent had been on the bench for the whole of her term of employment. She had no knowledge of anyone striking his or her knee on the handles. There was an identical work space on the floor immediately above the floor on which the incident occurred.

11. Ms McGill, another employee in the call centre, whose evidence the primary judge also accepted, said that she was a “processing officer” in the call centre between September 2004 and November 2011. During that period, she used the fax machine on the bench extensively on a daily basis, moving up and down in front of it as she worked. She also recalled that there had been a telephone in the same location on the bench throughout the time she was a processing officer. She did not recall ever having bumped her knee or any part of her body on the cupboard door handles nor did she notice or hear of anyone “[having] any problems bumping themselves on [the cupboard] handles”. She recalled that there was a “steady stream of employees” using the telephone.

The primary judge’s reasons

12. The respondent called Mr O'Sullivan, a qualified physiotherapist who worked as an ergonomist and safety consultant, as an expert witness. The appellant’s expert witness was Dr Carnavas, a mechanical engineer with experience in workplace accidents and assessments. The primary judge recorded parts of the evidence of each expert in his reasons, but made only the findings in respect of such evidence that are referred to below.

13. Mr O'Sullivan’s evidence that “were a person to move along the front of the bench in close proximity to the bench the door handles represent a clear impact hazard for the knees” was accepted. Dr Carnavas’ evidence that “a worker’s legs would be clear of the handles” was implicitly rejected. The evidence to which the primary judge referred appeared to be a passage in Dr Carnavas’ report of 26 March 2012, in which he gave the opinion that “for the majority of expected tasks performed at the Unit, the worker would be positioned facing directly towards the Bench-top … [in which] orientation … the worker’s legs would be clear of the handles”.

14. The primary judge rejected Dr Carnavas’ evidence that “the speed of movement of a worker would normally be expected to be very slow”.⁵ His Honour elaborated:⁶

“In my opinion the speed of movement of a worker would depend on the task being performed and in relation to a worker making a permitted phone call such a worker might bend towards the handle on the cupboards as [the respondent] did.”

15. The primary judge accepted the evidence of Ms Bennett and Ms McGill “that over a period of a number of years no-one had hurt themselves on these handles” and that “Ms McGill worked for many hours at the bench and did not hurt herself”.⁷ The primary judge accepted that the risk of injury was “obvious” even though “there had not been any other injury to other workers”.⁸

16. In that context, reference was made to Webb v South Australia,⁹ in which:¹⁰

“… the majority of the High Court said obviousness and the absence of accident over a period of time did not mean that the construction in issue in that case presented no risk of injury.”

17. The primary judge also observed:¹¹

“In Webb the majority of the High Court held that, in such circumstances, where the risk could have been eliminated without undue difficulty or expense, the reasonable person’s response would have been to eliminate it.”

18. Referring to Mr O'Sullivan’s acceptance in cross-examination that there were examples of similar handles on cupboards in other workplaces, the primary judge distinguished the subject handles from the examples on the basis that they were not in close proximity to a piece of furniture on which a telephone was placed. The primary judge did not consider the evidence that there were approximately 300 other cabinets in the call centre with handles similar to those of the subject handle as of particular relevance as the other cabinets “had handles that were not at knee height and were recessed from where work was being done”.¹² In the primary judge’s view, “Other work done in this call centre and in the other places referred to in the evidence may not bring the employee in close proximity to the handles”.¹³ The primary judge concluded in this regard:¹⁴

“… the use of the telephone here could bring the employee in contact with the handle. I am satisfied an employer exercising reasonable care would consider there could be injury suffered from that contact.”

19. The primary judge was satisfied that “there was more than a slight chance [the respondent] could suffer injury by coming into contact with the handle on the cupboard”¹⁵ and that the appellant “breached its duty of care [to the respondent] by having those handles on the cupboard and by failing to replace the handles with the type of handle suggested by Mr O'Sullivan” that is, recessed or lip-type handles at the top of each cupboard door.¹⁶ The primary judge considered that “the handles could have been eliminated without undue difficulty or expense”.¹⁷

20. The primary judge found, by reference to Vairy v Wyong Shire Council,¹⁸ that the appellant’s duty to the respondent was “to take reasonable care”. His Honour noted the appellant’s concession “that it is foreseeable that a person may strike the handle [of] a door with part of their body” and concluded that “the issue to be decided … [was] whether there [had] been a breach of the duty of care”.¹⁹

Consideration

21. The content of the duty of care the primary judge had in mind cannot be ascertained by reference to Vairy. It was a case in which the alleged breach of duty on the part of a local authority was the failure to erect a sign, or signs, warning of the dangers of diving from a rock platform.²⁰ On the hearing of the appeal, senior counsel for the respondent identified the appellant’s duty of care, by reference to Czatyrko v Edith Cowan University,²¹ as a duty “to take reasonable care to avoid exposing [the respondent] to unnecessary risks of injury”. That duty can be accommodated within the duties pleaded in paragraph 7 of the Amended Statement of Claim.

22. The central theme of the appellant’s argument was that there was no breach of the appellant’s duty of care as any risk of injury was slight as was the likely extent of an injury, should one be sustained. Attention was drawn to the following passage from the reasons of Mason J in Wyong Shire Council v Shirt:²²

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

23. Counsel for the appellant argued that the primary judge’s reasoning was flawed in that he failed to consider the magnitude of the risk of injury that is, the likely extent of any such injury, or the degree of the probability of its occurrence and erred in concluding that there was “more than a slight chance”²³ that the respondent could be injured by contact with the handle. It was submitted that, although a reasonable employer would foresee that if a worker did somehow bump his or her leg on a door handle such as the subject handle, it might give rise to some “momentary or temporary problem”, but “it would not be reasonable to foresee that there would be any significant injury”.

24. It was further submitted that, due to a focus upon the expense, difficulty and inconvenience of taking alleviating action, it was implicit in the primary judge’s findings that an employer would breach its duty of care if it failed to eliminate anything which a person might bump into, such as desks, cupboards, benches, doors, corners or chairs, if they were not being sufficiently attentive to what they were doing. In this context, reference was made to the following passage from the reasons of Macfarlan JA, Tobias JA and James J agreeing, in Seage v State of New South Wales:²⁴

“It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture? Cf Phillis v Daly (1988) 15 NSWLR 65 at 74B-C; Jones v Bartlett … (2000) 205 CLR 166 at 177 [24].

A reasonable employer would ordinarily regard it as quite unnecessary to give warnings or take other steps in relation to these commonplace activities. The movement of furniture, when it forms no part of the employee’s regular duties or activities to perform it, in my view falls into the same category.”

25. As for the finding that the risk of injury was “more than slight”,²⁵ it was submitted that the primary judge erred in overstating the risk, having regard to the evidence of Ms Bennett and Ms McGill from which he could have reasonably inferred that, despite the use by the appellant’s employees of a telephone on the bench and the use of the bench as a workstation, no other employee had been injured by the handle.

26. The fact that no previous injury may have been sustained as a result of a particular work practice or item in a workplace does not necessitate the conclusion that the risk of injury should be regarded as slight. Webb provides an example of a finding of “a distinct possibility”²⁶ of personal injury despite there being no record of any accident involving the false kerb which caused the appellant’s accident. But, of course, each case must be determined by the application of the law to its own facts. As Gleeson CJ and Kirby J observed in Vairy:²⁷

“The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place.”

27. To my mind, the fact that the whole of the appellant’s premises was furnished with drawer and cupboard handles identical to the subject handles and that there was no evidence that they had caused injury over the years is pertinent to the question whether a reasonable employer in the position of the appellant should have foreseen a risk of injury and, if it had known of such a risk, whether it would have altered the handles or taken other action in response to the risk. Of particular relevance is Ms McGill’s evidence of her intensive use of the bench for years without incident. Counsel for the respondent submitted that Ms McGill’s estimate in her evidence-in-chief of spending about five hours a day at the workbench was substantially diminished by cross-examination. Even if that were so, at best for the respondent, Ms McGill’s evidence was that she went to and from the workbench frequently in the course of every work day and spent some hours at the workbench.

28. As Hayne J warned in Vairy, it is necessary to avoid the advantage of hindsight and to look forward “from a time before the accident” in order to give “due weight” to “consideration of the magnitude of the risk and the degree of the probability of its occurrence”.²⁸ In my view, the primary judge appears to have equated the possibility that part of an employee’s body may come into contact with the door handle with an obvious risk of injury and, reasoned, by reference to the respondent’s injury, that such an injury may well be substantial.

29. The primary judge was wrong to conclude that the existence of similar handles on some 300 other cabinets in the call centre was, in effect, irrelevant, because these handles were not at knee height.²⁹ The evidence of the respondent, from which his Honour drew this conclusion, related only to the drawer handles under the respondent’s desk and probably to those under the desks of other employees who had similar desks. The evidence of the use of the same handles, which were not said to be in any way unorthodox in design, throughout the office bore on the reasonableness of the appellant’s failure to perceive any risk associated with the subject handles under the workbench. Also, his Honour appears to have overlooked the existence of another identical workbench on a higher floor.

30. In cross-examination, counsel for the appellant showed Mr O'Sullivan a number of photos of cupboard benches and drawers on which there were handles similar to the subject handle. He put to Mr O'Sullivan, variously, that the handles were “all perfectly typical office set-ups”, “perfectly common installation (sic) in an office, depicting work stations with handles almost identical to these” and part of “a perfectly normal setup”. Mr O'Sullivan avoided giving a direct answer to such questions. However, he did concede in response to one such question, “I’ve seen things like that around”. The primary judge accepted Mr O'Sullivan’s evidence that some of the photos depicted handles that were “more shallow than the subject handles”. He also found that photos of handles in other workplaces did not show a telephone located on a workbench above protruding handles such that an employee using the phone would be brought in proximity to the handles.

Conclusion

37. For the above reasons, I would order that:

38. The appeal be allowed.

39. The orders made on 22 February 2013 be set aside.

40. There be judgment for the appellant in the proceedings.

41. The respondent pay the appellant’s costs of the proceedings including the costs of the appeal on the standard basis from 10 December 2010.

42. PHILIPPIDES J: I agree that the orders proposed by Muir JA should be made for the reasons his Honour has stated.

Footnotes

1. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [34]. ↩

2. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [32]. ↩

3. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [10]. ↩

4. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [8] and [20]. ↩

5. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [30]. ↩

6. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [30]. ↩

7. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [30]. ↩

8. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [31]. ↩

9. (1982) 56 ALJR 912 at 913. ↩

10. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [31]. ↩

11. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [32]. ↩

12. Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 at [33]. ↩