A Queensland Court of Appeal decision in May 2019 to dismiss a teacher's 'slip and fall' common law claim appeal after slipping on a grape should serve as a wake-up call for employers to be forward-thinking in their approach to assessing workplace safety risks.
Evidence presented to the court, claimed the teacher injured her knee after slipping on a grape while walking through the foyer area of a classroom block. This was during a 'fruit break' where students would retrieve fruit from their bags in the foyer, before eating in the classroom.
With any injury where an employer owes a duty of care to its employee, the starting point is whether the injury is 'reasonably foreseeable'.
At trial, the Judge held that the injury in this case was not 'reasonably foreseeable'.
The Judge found that the fruit break had occurred for approximately five years and in that time there was:
- no evidence of fruit being dropped and allowed to remain on the floor;
- no evidence of inadequate supervision of the children; and
- no previous incident involving someone slipping on a piece of fruit at the school.
However, the Appeal Court rejected this conclusion, finding it was foreseeable that a child may drop fruit on the floor, and the child who dropped it (or someone else) would not notice and pick it up.
Further, it was foreseeable that even if a person who was familiar with the fruit break and walked across the foyer without looking at the floor could still tread on the fruit, slip, fall over and injure themselves.
The implication of this ruling for employers is clear: relying solely on past events and whether or not an injury has occurred previously is no defence when a Judge is determining foreseeability.
WorkCover Queensland Solicitor John Kinnane agrees that this decision focuses on the forward-looking nature of an employer's duty of care. “Employers must be proactive in identifying and assessing potential risks in the workplace, and taking action to minimise those risks. Even if a type of injury or incident has not occurred before in a workplace, an employer is still responsible for taking steps to avoid it happening in the future.”
The Appeal Court did not interfere with the remainder of the Trial Judge's reasoning for dismissing the claim. In particular, the Court held:
- The risk of injury was insignificant as the probability of the risk eventuating was very low;
- There was no evidence that an alternative system of supervision or inspection of the foyer during fruit break should reasonably have been adopted;
- It could not be proved that such a system would have prevented the injury (e.g. the grape may have only been there for a few seconds);
- The employer was not required to warn the teacher about the fruit break or raise awareness of the risk of children dropping fruit; and
- Adults are expected to be mindful and alert for objects on the ground as they move about their workplace.
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