No obligation to warn of obvious risk

Heywood v Commercial Electrical Pty Ltd [2013] QSC 52
Martin J
11 March 2013

The duty imposed on employers is to take reasonable care to avoid injury to workers. An employer does not have an obligation to avoid all risks by all reasonably affordable means. The obviousness of the risk and a reasonable expectation that workers will take care of their own safety must be taken into account.

Background

The worker was an electrical apprentice who severed his ulnar nerve when he descended a ladder and his elbow came into contact with a U shaped piece of metal that he, the worker, had cut and placed on his tool box near the ladder. The worker's evidence was that he wasn't thinking about the piece of metal as he descended the ladder; he was thinking about his next task.

Liability

The worker argued there were two issues in relation to liability:

1. That the employer had failed to consider and implement a system of work that did not require the worker to handle sharp edged pieces of the U shaped metal; and
2. That the employer failed to properly instruct and supervise the worker, who was a relatively inexperienced apprentice, and who distracted by his next task as he descended the ladder.

In relation to the first issue, the Judge found that the employer's system of work of using the U shaped metal was appropriate and that it satisfied the Electrical Safety Act and relevant standards.

In relation to the second issue, the Judge found that the employer had not breached its duty of care to the worker. The relevant considerations were:

• The task was not a difficult one;
• The worker knew how to do the task;
• The worker knew he was handling sharp metal and he knew the consequences of handling sharp metal. That was obvious from the worker's own work. There was no requirement on the employer to warn him it was sharp.
• The worker created the risk of injury himself by placing the sharp metal exposed on the toolbox close to the ladder he was working on.

The Judge found that there was no obligation to warn of this obvious risk and that the injury was the result of the worker's own actions.

The worker's claim was dismissed.

Appeal

The plaintiff appealed and on appeal was awarded $156,000.

The court found that simple instructions would have reduced the risk of injury and it was relevant that the worker was inexperienced and potentially prone to making mistakes.

The plaintiff also appealed the trial judge's damages assessment, particularly in relation to the award for future economic loss, on the basis that his planned career in the mining injury (with higher wages) was now not available. This was rejected.