Similarities between employer’s liability and occupier’s liability in NSW personal injury matters

Vincent v Woolworths Ltd [2016] NSWCA 40, decided on 15 March 2016 by the Court of Appeal, indicates that whilst the Civil Liability Act 2002 (NSW) (Act) does not directly apply to claims against employers for work injury damages, it may be relevant when determining whether an employer has breached their duty of care.

In this case, Ms Vincent was injured in a Woolworth’s supermarket when she stepped back off a ‘safety’ step and collided with a shopping trolley being pushed by a customer, which caused her to fall. The injury occurred when she was working as a merchandiser for Counterpoint, which involved arranging products on supermarket shelves. Woolworth’s provided the step to assist her. Ms Vincent claimed damages for negligence from Woolworths as the occupier of the premises and from Counterpoint as her employer. Her claims were rejected at first instance and on appeal.

On appeal, the Court confirmed that the Act, which applied to the claim against Woolworths, is inapplicable to an employer’s liability. The Court emphasised that common law negligence principles, identified in Czatyrko v Edith Cowan University¹ and Wyong Shire Council v Shirt², should be referred to instead. However, the judgment noted that there is “little substantive difference” between the common law and statutory approaches.

Specifically, the Court recognised that both approaches require:

• an identification of a risk of injury which involves a risk of some appreciable harm being suffered;
• an assessment of how a reasonable person in the position of the defendant would respond to the risk; and
• an expectation that the employee will exercise reasonable care for their own safety, which includes exercising care in carrying out straight forward activities – employers are entitled to expect this even though Czatyrko describes their duty of care as requiring them to take account of the possibility of inadvertence or thoughtlessness by an employee.

The Court concluded that the considerations relevant to the rejection of Ms Vincent’s claim against Woolworths, to which the Act applied, lead also to the rejection of her claim against Counterpoint”. Those considerations included:

• the low probability that an appreciable personal injury due to a collision between a merchandiser and a customer’s trolley would occur;
• the commonplace character of the activity that led to Ms Vincent’s injury i.e. her getting down from a small step at a time when it was possible that something might be passing behind her;
• Ms Vincent’s acceptance that the need for care on her part was obvious;
• the absence of any previous supermarket accident in which a person had suffered appreciable injury as a result of collision with a trolley;
• Ms Vincent’s plain visibility to customers and vice versa; and
• the lack of evidence suggesting that a reasonable person in the same position would have taken precautions.

Distinct from the considerations relevant to the claim against Woolworths, the Court also noted that Counterpoint specifically considered whether the use of ‘safety’ steps gave rise to a risk of injury and Ms Vincent did not challenge the method by which Counterpoint reached its conclusion that there was no risk.

This decision confirms that employees themselves are responsible for exercising reasonable care for their own safety and that relevant considerations for determining liability of an occupier in respect of an injury under the Act are also relevant for determining the liability of an employer.

This article was written with the assistance of Rosie Meyerowitz, Law Graduate.

¹Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
²Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40