Holmes and Muir JJA and Philippides J, Separate reasons for judgment of each member of the Court, each concurring as to the orders made:
|Catchwords||TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the respondent was employed in the appellant’s call centre – where the respondent struck his right knee on the metal handle of a cupboard under a workbench on which the telephone he was using rested – where the primary judge accepted evidence that, over the years, a “steady stream” of employees had used the workbench without injury – where there was an identical workbench on a higher floor and the same handles were used throughout the office – where the primary judge accepted that the risk of injury was “obvious” despite the absence of prior incidents – where the primary judge held that there was “more than a slight chance” that the respondent could suffer injury by coming into contact with the handle and that the appellant breached its duty of care by failing to replace the handles – where the appellant submits that the primary judge erred in focusing on the expense, difficulty and inconvenience of taking alleviating action and in failing to consider the magnitude of the risk or the degree of probability of its occurrence – where the appellant submits that the primary judge erred in concluding that there was “more than a slight chance” that the respondent could be injured by contact with the handle – whether a reasonable employer in the position of the appellant would have foreseen that the failure to remove the handles would have involved a risk that employees could sustain injury – whether the appellant breached its duty of care in failing to replace the handles
 The central theme of the appellant’s argument was that there was no breach of the appellant’s duty of care as any risk of injury was slight as was the likely extent of an injury, should one be sustained. Attention was drawn to the following passage from the reasons of Mason J in Wyong Shire Council v Shirt:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
 Counsel for the appellant argued that the primary judge’s reasoning was flawed in that he failed to consider the magnitude of the risk of injury that is, the likely extent of any such injury, or the degree of the probability of its occurrence and erred in concluding that there was “more than a slight chance” that the respondent could be injured by contact with the handle. It was submitted that, although a reasonable employer would foresee that if a worker did somehow bump his or her leg on a door handle such as the subject handle, it might give rise to some “momentary or temporary problem”, but “it would not be reasonable to foresee that there would be any significant injury”.
 It was further submitted that, due to a focus upon the expense, difficulty and inconvenience of taking alleviating action, it was implicit in the primary judge’s findings that an employer would breach its duty of care if it failed to eliminate anything which a person might bump into, such as desks, cupboards, benches, doors, corners or chairs, if they were not being sufficiently attentive to what they were doing. In this context, reference was made to the following passage from the reasons of Macfarlan JA, Tobias JA and James J agreeing, in Seage v State of New South Wales:
“It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture? Cf Phillis v Daly (1988) 15 NSWLR 65 at 74B-C; Jones v Bartlett …  HCA 56; (2000) 205 CLR 166 at 177 .
A reasonable employer would ordinarily regard it as quite unnecessary to give warnings or take other steps in relation to these commonplace activities. The movement of furniture, when it forms no part of the employee’s regular duties or activities to perform it, in my view falls into the same category.”
 As for the finding that the risk of injury was “more than slight”, it was submitted that the primary judge erred in overstating the risk, having regard to the evidence of Ms Bennett and Ms McGill from which he could have reasonably inferred that, despite the use by the appellant’s employees of a telephone on the bench and the use of the bench as a workstation, no other employee had been injured by the handle.
 The fact that no previous injury may have been sustained as a result of a particular work practice or item in a workplace does not necessitate the conclusion that the risk of injury should be regarded as slight. Webb provides an example of a finding of “a distinct possibility” of personal injury despite there being no record of any accident involving the false kerb which caused the appellant’s accident. But, of course, each case must be determined by the application of the law to its own facts. As Gleeson CJ and Kirby J observed in Vairy:
“The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place.”
 To my mind, the fact that the whole of the appellant’s premises was furnished with drawer and cupboard handles identical to the subject handles and that there was no evidence that they had caused injury over the years is pertinent to the question whether a reasonable employer in the position of the appellant should have foreseen a risk of injury and, if it had known of such a risk, whether it would have altered the handles or taken other action in response to the risk. Of particular relevance is Ms McGill’s evidence of her intensive use of the bench for years without incident. Counsel for the respondent submitted that Ms McGill’s estimate in her evidence-in-chief of spending about five hours a day at the workbench was substantially diminished by cross-examination. Even if that were so, at best for the respondent, Ms McGill’s evidence was that she went to and from the workbench frequently in the course of every work day and spent some hours at the workbench.
 As Hayne J warned in Vairy, it is necessary to avoid the advantage of hindsight and to look forward “from a time before the accident” in order to give “due weight” to “consideration of the magnitude of the risk and the degree of the probability of its occurrence”. In my view, the primary judge appears to have equated the possibility that part of an employee’s body may come into contact with the door handle with an obvious risk of injury and, reasoned, by reference to the respondent’s injury, that such an injury may well be substantial.
 The primary judge was wrong to conclude that the existence of similar handles on some 300 other cabinets in the call centre was, in effect, irrelevant, because these handles were not at knee height. The evidence of the respondent, from which his Honour drew this conclusion, related only to the drawer handles under the respondent’s desk and probably to those under the desks of other employees who had similar desks. The evidence of the use of the same handles, which were not said to be in any way unorthodox in design, throughout the office bore on the reasonableness of the appellant’s failure to perceive any risk associated with the subject handles under the workbench. Also, his Honour appears to have overlooked the existence of another identical workbench on a higher floor.
 In cross-examination, counsel for the appellant showed Mr O’Sullivan a number of photos of cupboard benches and drawers on which there were handles similar to the subject handle. He put to Mr O’Sullivan, variously, that the handles were “all perfectly typical office set-ups”, “perfectly common installation (sic) in an office, depicting work stations with handles almost identical to these” and part of “a perfectly normal setup”. Mr O’Sullivan avoided giving a direct answer to such questions. However, he did concede in response to one such question, “I’ve seen things like that around”. The primary judge accepted Mr O’Sullivan’s evidence that some of the photos depicted handles that were “more shallow than the subject handles”. He also found that photos of handles in other workplaces did not show a telephone located on a workbench above protruding handles such that an employee using the phone would be brought in proximity to the handles.
 The appellant’s duty as an employer was to take reasonable care for the respondent’s safety. It was not to “safeguard [him] completely from all perils”. For the respondent to succeed, he was required to show that the appellant was acting unreasonably in failing “to take an alternative course of conduct that would have eliminated the risk of damage”.
 In my view, although the cost of taking remedial action in respect of the door handles may have been relatively modest, the likelihood of an employee being injured by the subject door handles was particularly low, as was the risk that any injury inflicted would be serious. The evidence of Ms Bennett and Ms McGill provides highly cogent support for the former conclusion. Ms McGill used the workbench (and its counterpart on the floor above for a brief period) intensively for years, performing a variety of functions without knowingly bumping the handles. Over the years, the “steady stream” of employees using the telephone and performing other functions at the workbench had done so, as his Honour found, without injury.
 There is no evidence of the nature or severity of the range of injuries which might result from a person’s contact with such a handle apart from the evidence of the respondent’s injury. A report of Mr O’Sullivan referred to a report of Dr Pentis which indicated “a tear to the medial meniscus and some cystic changes”. Mr O’Sullivan noted, “Dr Pentis [concluded] also that a regional pain syndrome may be in existence”. It is not permissible, however, to argue from the respondent’s injuries that the handle posed a risk of serious injury, particularly given the absence of any expert medical evidence in that regard.
 The primary judge rejected Dr Carnavas’ evidence that the speed of movement of a worker would normally be expected to be very slow. He found that the speed of movement of a worker would depend on the task being performed. His Honour’s observation is no doubt correct, but no witness identified any circumstance in which a person making a telephone call or performing any other function at the workbench would be likely to be executing vigorous movements which might exacerbate the extent of injury should the person accidentally strike a door handle.
 I do not accept that a reasonable employer in the position of the appellant would have foreseen that a failure to remove the subject handles or take other remedial action in relation to them would have involved a risk that employees using the bench could sustain an injury more severe than minor bruising. Nor do I accept that such an employer, if he or she perceived a risk of injury, having regard to the magnitude of the risk, the degree of probability of its occurrence and the other matters referred to by Mason J in the passage from his reasons in Wyong Shire Council v Shirt quoted in paragraph  above, would have changed the handles or taken other remedial action.
 In my respectful opinion, the primary judge erred in not having due regard to these matters, which, in my opinion, lead to the conclusion that there was no breach by the appellant of its duty of care.
Brisbane Barrister – David Cormack