Damages award alarming pain in neck for employer

 

Thinking | 13 May 2020

The WA Court of Appeal has unanimously dismissed an employer's appeal against a damages award to a worker who injured his neck due to a startle response from an alarm in his workplace.[1]

Mr Hooker was employed by Allied Pumps Pty Ltd as a computer draftsman. While seated at his desk in the Operations Rooms, the alarm emitted a loud piercing sound behind him, causing him to suddenly reactively turn. Mr Hooker led evidence that the sudden turning caused a C4/5 disc injury, anxiety and depression, which permanently reduced his work capacity.

The alarm was found to have been caused by a defective gas detector when another employee switched it on. District Court Judge McCann concluded that the magnitude and type of startle response evinced by Mr Hooker was reasonably foreseeable, as was the risk that he would suffer musculo‑skeletal harm of the whiplash kind, and that Allied was negligent in failing to take reasonable steps to provide a safe place of work.

Judge McCann found that Allied had prior knowledge that the gas detector unit was faulty and the alarm on the gas detector unit would sound. The Court of Appeal accepted Judge McCann's unchallenged findings of primary fact meant it was open to infer that Allied was aware that the alarm was faulty.

The appeal justices were split in analysing Judge McCann's finding that there was a reasonably foreseeable risk of injury. The minority Justice Murphy dismissed this ground on the basis that it was reasonably foreseeable that the alarm would be activated and Mr Hooker's startle response could result in some form of musculo-skeletal injury.

However, Justices Buss and Vaughan determined that Judge McCann erroneously applied hindsight reasoning by focusing too narrowly on the circumstances of the actual injury and the circumstances in which it was suffered. Nonetheless, they still found it was reasonably foreseeable that a person working in the Operations Room might suffer injury of some kind as a result of a startle response to the sound of the alarm if the gas detector was turned on. Even if the risk of personal injury from the defective gas detector being left on the table in the Operations Room was very unlikely, it was still foreseeable in the sense that it was not far-fetched and fanciful.

Finally, Allied sought to overturn Judge McCann's finding that Allied breached its duty of care to Mr Hooker by not tagging or placing the device in an inaccessible location, which could have been undertaken without expense, difficulty or inconvenience. This ground also failed. The appeal justices concluded that, although the risk of injury was trivial, and in most cases it was expected to be of a relatively minor severity, the risk was not so small and the probability not so remote that Allied was entitled to ignore it. Accordingly, Allied was negligent by failing to take reasonable care to avoid exposing Mr Hooker to a foreseeable injury.

This case illustrates the high standard that is placed on an employer to eliminate all manner of foreseeable risks of injury even in circumstances where the risk is low or very unlikely to occur. A failure by an employer to take steps that do not involve incurring great expense, difficulty or inconvenience to provide a safe place of work may have significant consequences if an employee is seriously injured. The fact that this incident was found to be reasonably foreseeable illustrates the difficulty in defending employment claims on foreseeability grounds.

[1] Allied Pumps Pty Ltd v Hooker [2020] WASCA 72.

Contact

Rosena De Freitas

Rosena is an insurance lawyer with extensive experience in workers’ compensation and personal injury matters.

Geoff Benson

Geoff is an insurance lawyer in our Perth team.

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