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Judgement of breach of duty of care overturned on appeal

Larkin v Suncorp Staff Pty Ltd [2013]

QDC 028

Samios DCJ

22 February 2013

Background

The 36 year old plaintiff worked as an insurance sales officer at the Suncorp call centre in Toowoomba when he struck his knee on a cupboard door handle in 2008. The offending handle was situated on cupboards beneath a bench which contained a fax, phone and photocopier. The phone was used by workers for personal calls and had been used by the pltf for a personal call just prior to him striking his knee.

Liability

The handles were rectangular shape and protruded about 3.8cm from the cupboard. The judge accepted the defendant's witnesses' evidence that the phone had been on the bench many years. The judge also accepted that the processing officer who had worked at the bench from 2004 to 2011 for five hours per day had never had any problems with the handles. This is despite the fact her job entailed her moving up and down the bench.

Judgement

The judge accepted the defendant's witnesses were unaware of anyone else at the office, which contained 300 workers, ever having a problem with the handles. There was no evidence by the plaintiff to the contrary. The judge accepted these handles were on 300 cabinets in the office, but noted these were not at knee height.

The judge ruled in favour of the plaintiff.

The judge found the fact there was a telephone on the bench could bring the worker in contact with the handle and as such the Defendant was in breach of it's duty of care. He found the handles should have been replaced by recessed handles.

Appeal

QCA 281

27 September 2013

On appeal, the Court decided that a reasonable employer would not have changed the door handles, even though there was minimal cost involved, because there was a low probability the accident would occur and if it did, the resulting injuries would be minimal.

Therefore, the appeal was allowed and the respondent was ordered to pay WorkCover's costs.

The appeal was from a decision of Samios DCJ, who held the employer liable for injuries sustained when the worker bumped his knee on the metal handle of a cupboard under a workbench on which the telephone he was using rested.

Muir JA, who wrote the leading judgment relied on evidence of co-workers (accepted by the primary judge) that "over a period of a number of years no-one had hurt themselves on these handles". His Honour held whilst the cost of remedial action of replacing the door handles was relatively modest, the likelihood of an employee being injured was particularly low, as was the risk that any injury inflicted would be serious.