WCRA: apprentice successful – basic instructions needed & supa at 11.33%

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270

I refer to my earlier post and note the plaintiff was successful on the appeal.

Muir JA with whom   Morrison JA and Margaret Wilson J concurred:

 

[22] It is not an answer to an allegation that an employer has breached its duty of care to establish that the risk of injury was obvious and known to the employee. Referring to a situation in which employees had adopted a work practice which routinely exposed them to a significant risk of injury, Mason, Wilson, Brennan and Dawson JJ said, in McLean v Tedman:[6]

“In such a situation it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: Wheare v. Clarke; Henwood v. Municipal Tramways Trust (S.A.). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.” (citations omitted)

[23] Their Honours quoted the following passage from the judgment of the High Court in Ferraloro v Preston Timber Pty Ltd:[7]

“The employer’s duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task.”

[24] Their Honours then observed:[8]

“If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his duties then this is a factor which the employer must take into account …

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”

[25] In considering whether there was a breach by the respondent of its duty of care, it is necessary to identify what a reasonable employer in the position of the respondent would have done to obviate a foreseeable risk of injury to the appellant.[9] This inquiry does not focus on the injury, which in fact occurred, but on the range of activities in which employees, such as the appellant, were engaged and potentially at risk.[10] Relevant to this inquiry are:[11]

“…the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of alleviating action, and other competing demands upon a potential defendant.”

[26] An obvious enough hazard to which an apprentice electrician doing fit out work of the kind under consideration is exposed, is the risk of injury from sharp objects or surfaces. Such an electrician works under pressure, at least from time to time, without the luxury of periods of contemplation and reflection about possible hazards before moving from one task to the next. Such risks may be addressed in part by the giving of reminders and warnings of their existence and potential gravity. Such warnings and reminders, however, may not guard sufficiently against injury through inattention, inadvertence or carelessness. That is why workplace procedures and practices are implemented. Workmen, such as electricians, are routinely provided with a code of conduct which, although it may be basic in nature, if followed, will reduce the risk of injury.

[27] Counsel for the respondent argued that if instructions were required to be given about how to handle an obviously sharp object such as an offcut, it would follow that similar instructions would be required in respect of other sharp objects such as Stanley knives and tin snips. This, it was contended, would lead to a plethora of instructions, the efficacy of which would be diminished as the instructions increased. The argument is misguided.

[28] Mr Byard identified basic measures which the respondent could have taken to minimise workplace risk. Those measures included requiring supervisors to instruct apprentices in safety management and adopting procedures in which dangerous objects, particularly if brought into existence by the apprentice, were handled and positioned in a safe, orderly and consistent manner. Such instructions would have been beneficial, not only in relation to safety, but in terms of efficiency.

[29] Instructions of the kind being discussed would have alerted the appellant to take basic precautions of the nature of those recommended by Mr Byard: placing the offcut with its sharp edges facing down; placing the offcut away from the edge of the gang box; or, preferably, placing the offcut in a position where it was unlikely to come into contact with anybody.

[30] The taking of measures of the nature of those just discussed would have been a reasonable, cheap, conventional and convenient response to obvious risks. No application of hindsight is required in order to arrive at that conclusion.

[31] It is relevant that the appellant, to the knowledge of the respondent, was inexperienced. Such persons, as Mr Ridings frankly acknowledged, were “prone to making silly mistakes” and “focusing on the task at hand without thinking too far ahead”. The risk that the appellant would leave an offcut in a place where it could cause injury to himself or another was foreseeable. Nothing was done to guard against the risk, which could have been reduced significantly by the simple expedient of providing instructions along the lines of those just discussed. As well as the existence of a failure to warn, there was in fact the creation of a risk by the failure of the respondent to adopt a safe system of work.[12]

[32] The argument of counsel for the respondent also concentrated on the appellant’s knowledge of the hazard which he had created. As the above discussion shows, that is an insufficient answer to the question of whether there was a breach of the respondent’s duty of care. Counsel for the respondent argued that, even if, instructions of the type just discussed had been given, it is probable that they would not have averted the appellant’s injury. There was, however, evidence from the appellant that he would do his “level best to [adhere] to the workplace health and safety or the safe work method statement of [his] new employer”. He accepted in cross-examination that he would do his “level best to tick every box” and there is no suggestion that he had any propensity not to follow his supervisor’s instructions.

[33] For the above reasons, the primary judge erred in not finding that the respondent was in breach of its duty to provide the appellant with a safe system of work and that such breach was causative of the loss suffered by the appellant.

 

[56] For the above reasons, with one exception, no basis has been shown for disturbing the primary judge’s findings in respect of future economic loss. The exception is that the primary judge erred in calculating future loss of superannuation by failing to take into account that under the Superannuation Guarantee (Administration) Amendment Act 2012 (Cth), employers are required to pay superannuation benefits as follows:

(i)
For the year starting on 1 July 2012
9%
(ii)
For the year starting on 1 July 2013
9.25%
(iii)
For the year starting on 1 July 2014
9.5%
(iv)
For the year starting on 1 July 2015
10%
(v)
For the year starting on 1 July 2016
10.5%
(vi)
For the year starting on 1 July 2017
11%
(vii)
For the year starting on 1 July 2018
11.5%
(viii)
For the year starting on or after 1 July 2019
12%

[57] Counsel for the appellant submitted that by applying the five per cent multiplier tables and the deferred aspect of the above rates, loss of future superannuation should be awarded at the rate of 11.33 per cent of the sum awarded for loss of earning capacity so that an award of $400,000 for such loss would result in an award of $45,320 for loss of future superannuation. Consequently, an award of $150,000 for future loss of earning capacity would result in an award of $16,995 for future loss of superannuation.

[58] The respondent’s only submission in this regard was to submit, by reference to Elford v FAI General Insurance Company Limited,[24] that:

“… if there is nothing more than a wrong estimate of one component [of an award of damages] which has no substantial effect on the total, the award stands. The pointing out of a relatively small error in one estimated component of a judgment which is in substance a sum of estimates does not necessarily make the judgment as a whole wrong.”

[59] There can, however, be no objection in principle to rectifying an error which appears to be one of calculation rather than of principle. So much appears from the decision in Elford and from Hunt v Australian Associated Motor Insurers Ltd.[25]

 

[69] Consequently, the appellant’s damages are assessed as follows:

General damages
$50,000
Past economic loss (agreed)
$15,000
Interest on past economic loss
Nil[32]
Past loss of superannuation
$1,350
Future loss of earning capacity
$150,000
Future loss of superannuation
$16,995
Past special damages (agreed)
$11,000
Future special damages
$3,500
Fox v Wood
$1,370
Sub-total
$249,215
Less WorkCover refund
$92,565
TOTAL
$156,650

Brisbane Barrister – David Cormack

NB:

Alowed the future superannuation on the basis of 11.33% of future economic loss

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