In this Alert, Partner Robert Tidbury and Solicitor Hannah Staunton discuss the recent Queensland Supreme Court decision of Boon v Summs of Qld Pty Ltd t/a Big Bill's Bobcats [2015] QSC 162 where a workers' claim for damages failed after he was unintentionally stabbed in the hand by another worker who was on his lunch break.
Facts and relevant law
Downer EDI Works Pty Ltd (Downer) controlled and monitored a site at Redbank Plains in Queensland where an asphalt road was being constructed. Downer subcontracted Globe Labour Services Pty Ltd (Globe) to provide workers at the site. One of the workers supplied by Globe was the 26 year old plaintiff. The plaintiff was responsible for operating a paver machine on the site. Downer also subcontracted Big Bills Bobcats to remove and replace the asphalt and to supply a bobcat and an operator.
On 16 September 2011 a bobcat operator was taking his lunch break on a grassed area adjacent to the site which was frequently traversed by workers. The plaintiff alleged that the bobcat operator was crouching down eating an orange and was using a Leatherman knife to cut and peel the orange. As the plaintiff walked past him, the bobcat operator stood up from his crouching position holding the knife in his hand and, without intending to do so, stabbed the plaintiff in his left hand causing significant damage to the arteries, tendons and nerves in that hand.
The plaintiff commenced a claim for damages against Big Bills Bobcats in the Supreme Court of Queensland alleging that the bobcat operator's actions were negligent and that Bills Bobcats, as his employer, is vicariously liable for those negligent actions. The plaintiff also argued that Big Bills Bobcats was itself liable for negligently permitting the bobcat operator to use the knife during the course of his employment when it ought to have known that his doing so would expose other workers to a risk of injury and that it failed to instruct the operator that he was not to use the knife at any stage during the course of his employment at the site. Alternatively, the plaintiff argued that Big Bills Bobcats should have instructed the bobcat operator not to use the knife when he was in close proximity to other workers and not to use the knife in an area that was frequently traversed by other workers.
Judgement
The Court found in favour of the defendant employer, stating that the plaintiff's claim must fail based on the following reasons:
- The plaintiff failed to establish, on the balance of probabilities, that the bobcat operator's actions were negligent. The accident did not happen simply because the bobcat operator had a knife in his possession. Rather, the accident occurred because the plaintiff moved very close to the bobcat operator while he was using the knife. A reasonable person in the bobcat operator's position would not have foreseen that using a knife to peel an orange during their lunch breach would have involved a significant risk of injury to other workers.
- As the operator's actions were not negligent then the plaintiff's argument of vicarious liability against Big Bills Bobcats must also fail.
- The Court was not satisfied that a reasonable employer in the position of Big Bills Bobcats would have taken the steps contended by the plaintiff to avoid the risk of injury. It was not reasonable for Big Bills Bobcats to ban knives and sharp items on the site, especially when a sharp implement was required by the bobcat operator to perform his work duties. In addition, the Court considered it was not reasonable or necessary for Big Bills Bobcats to warn its workers that knives are sharp and they should not walk near anyone who has a knife.
Take Away Points
This decision reaffirms the principle that employers are generally not required to warn or take other precautions in relation to everyday, low risk activities in which their employees might incidentally engage in during the course of their employment.
Conversely, a court will find that an employer is under an obligation to warn or take precautions in relation to its employees' everyday activities incidental to work where there was a foreseeable risk of injury involved in the activity and where the risk of injury was not insignificant such that a reasonable person in the position of the employer in question would have taken adequate precautions to reduce and/or eliminate the risk.
Therefore, the foreseeability and magnitude of the risk of injury arising out of the offending worker's conduct remains a key issue in determining whether primary liability can attach to the employer of a worker whose actions or conduct causes injury to another.
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