I accept Mr Larkin’s evidence that at his place of work with Suncorp on 15 April 2008 he used the phone on the bench, and as he went forward to place it on the hook and turned to his left to go back towards his desk he ended up striking the inside of his right knee on the cupboard door handle. I accept this caused him an injury to his right knee.
 In this matter in my opinion an important consideration is that employees did work at the bench in question and were permitted to make phone calls from that bench. Although Dr Carnavas said a worker’s legs would be clear of the handles I accept Mr O’Sullivan’s evidence that were a person to move along the front of the bench in close proximity to the bench the door handles represent a clear impact hazard for the knees.
 I accept Ms Bennett’s evidence and Ms McGill’s evidence that over a period of a number of years no-one had hurt themselves on these handles. I accept Ms McGill worked for many hours at the bench and did not hurt herself. However, she did not make phone calls from the bench. I do not accept Dr Carnavas’ evidence that the speed of movement of a worker would normally be expected to be very slow. In my opinion the speed of movement of a worker would depend on the task being performed and in relation to a worker making a permitted phone call such a worker might bend towards the handle on the cupboards as Mr Larkin did.
 I accept the risk of injury here was obvious and there had not been any other injury to other workers. However, in Webb v South Australia (1982) 43 ALR 465 at 466-7 the majority of the High Court said obviousness and the absence of accident over a period of time did not mean that the construction in issue in that case presented no risk of injury.
 Further, in this matter I consider the handles could have been eliminated without undue difficulty or expense. In Webb the majority of the High Court held that, in such circumstances, where the risk could have been eliminated without undue difficulty or expense, the reasonable person’s response would have been to eliminate it.
NB: Suncorp’s appeal has since been allowed
Brisbane Barrister – David Cormack