In Drew v State of New South Wales  NSWCA 159
(decided on 11 June 2015) three New South Wales Supreme Court
judges have dismissed a school cleaner's appeal against a
finding that she is not entitled to damages after tripping over a
box on a classroom floor.
On 14 November 2005, the plaintiff, Mrs Drew, was an employee of
Menzies Property Services Pty Ltd and sustained knee injuries while
working at Campbelltown School. She sued both the occupier of the
premises, the State of New South Wales and her employer
Before she tripped over, she had walked through the same
carpeted classroom, which was at the time being used to store items
for a school fete, on six occasions. For the first few times, when
she was either carrying a garbage bag or a vacuum cleaner on her
back, she pushed a heavy box lying on the floor slightly to one
side to make a passage. On the last two times, she carried a mop
and bucket. It was on the very last time she tripped on the same
box, injuring her knees.
The primary judge heard Mrs Drew give evidence in 2014, more
than eight years after the accident. His Honour accepted her as
"credible but not always reliable", having
regard to the passage of time. With respect to her claim against
her employer, it was also held that an employer could and should
check whether floors, doors or rooms needed repair. However, the
box was not a fixture and it had not been in the classroom the
previous day, so the employer could not have been aware of its
existence. His Honour recognised the employer's non-delegable
duty of care but by the same token found that cleaning a classroom
in a school was not a dangerous activity and that Mrs Drew
"misjudged where the box was and caused her own
Since the employer was unaware of the presence of the box in the
classroom, the claim against it was rejected and Mrs Drew was
considered to have not taken reasonable care for her safety as she
could and she had done on numerous earlier occasions, have walked
around the box and avoided the accident.
The trial judge quoted O'Connor v Commissioner of
Government Transport  100 CLR 225 saying: "It
seems fanciful ... to suppose that a warning or special instruction
was demanded about so simple and obvious a matter requiring neither
special skill or knowledge to decide, and ordinarily treated as a
matter for the man doing the job." In her claim against
the occupier, Mrs Drew argued that, as the occupier of the school,
it should have ensured the box was placed to the side of the room
or should have marked out an area where she could have walked
without encountering any obstacles.
His Honour rejected this argument and held that the occupier did
not have to take these precautions as they would not have avoided
the risk of injury, Mrs Drew had simply failed to walk past an
obvious obstacle in the middle of the room, which she had managed
to avoid on five prior occasions and had, as a result, not taken
appropriate care for her own safety.
The Court of Appeal dismissed the appeal and agreed with the
primary judge's reasons for finding against Mrs Drew. It also
confirmed that an employer will not usually be found liable for a
risk of which it had no knowledge (and could not reasonably have
known of) and that an occupier or employer is generally entitled to
expect that people entering premises will exercise reasonable care
for their own safety, especially when there is an obvious risk of
While we are likely to have some way yet to go before an
employee's obligation to use "common sense" to avoid
a risk of injury takes more of a centre stage position, this is at
least a start.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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