No liability for employees horsing around

The District Court of Western Australia has recently dismissed a worker’s claim for damages after he suffered an injury while participating in a Melbourne Cup event held by his employer on-site.

On 2 November 2015, Sandfire Resources NL (Sandfire), held a Melbourne Cup based event at the Degrussa Copper and Gold Mine. The function included a number of Melbourne Cup based events and the tie breaker event of the evening was a relay race, where participants were required to place a wooden hobby horse between their legs and race their opponent around a cricket pitch.

Mr Kremer was a participant in the final race. During the race, he fell to the ground and suffered an injury to his right shoulder and arm.

Mr Kremer commenced proceedings against Sandfire, alleging that he had been tripped by the other participant in the race, which resulted in his fall and injury. It was not in dispute that Mr Kremer fell. Sandfire contended that he had tripped over his own feet or his wooden hobby horse and was not tripped by his colleague, as he alleged.

The District Court was required to consider whether Sandfire had breached its common law duty of care as employer, an occupier pursuant to the Occupiers’ Liability Act 1985 (WA) and as an owner and operator pursuant to the Mines Safety and Inspection Act 1994 (WA).

His Honour Judge Troy noted that the fundamental issue for resolution was whether Mr Kremer was tripped, intentionally or otherwise, in the course of the race. No witnesses at trial saw Mr Kremer’s colleague trip him during the race and Mr Kremer did not contemporaneously report that he was tripped. Troy DCJ concluded that the calibre of evidence adduced by Mr Kremer falls ‘significantly short’ of satisfying him that it is more likely than not that he was tripped.

As to the employer’s duty of care, Mr Kremer asserted that Sandfire had breached its duty of care by encouraging physical contact and ‘trash talk’ between participants and not enforcing the rules of the race. To the contrary, Troy DCJ found that it was a light-hearted event and there was no evidence that physical contact or ‘trash talk’ between participants was encouraged. Troy DCJ noted that Mr Kremer’s evidence at trial was that he held the hobby horse in his right hand to try and win, rather than between his legs as he should have done.

Troy DCJ noted that Sandfire’s duty of care as employer was not a duty to safeguard a worker from all perils. Troy DCJ held that Sandfire had discharged its duty of care to take reasonable care to avoid exposing Mr Kremer to injury and noted that there was no requirement on Sandfire to instruct participants to not make physical contact while running and the nature of the event did not require a formal risk assessment process. Troy DCJ concluded a reasonable employer would not have taken any further safety precautions than Sandfire did.

Finally, Troy DCJ commented that, if he had found that the other employee had intentionally tripped Mr Kremer, Sandfire would not be vicariously liable in any event. In reaching this conclusion, Troy DCJ noted that Mr Kremer and his colleague were off duty employees who had chosen, under no obligation, to participate in the light-hearted recreational event and there was no special role assigned to the colleague so as to place him in a position where vicarious liability properly arises. Specifically, there was no features of authority, power, trust control or intimacy between Mr Kremer and his colleague.

This case illustrates the important principle that, while an employer owes a high standard of care to its employees, it is not a duty to protect employees from all harm.

Hall & Wilcox was instructed to act for Sandfire Resources NL Limited in relation to this action.

Kremer v Sandfire Resources NL [2020] WADC 130


Stephanie Driscoll

Stephanie is an insurance lawyer with over 15 years' experience in representing employers, insurers and self-insured corporations.

Ellie McGrory

Ellie is an insurance lawyer whose practice primarily consists of compensation and liability claims.

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