An employer's duty is very high and can include engaging
experts to inspect things such as stairways for latent
Even in the case of non-catastrophic injuries, where a young
worker has a reasonable argument they have lost a career due to an
injury, $1M+ awards are not so uncommon anymore.
The Plaintiff was a physiotherapist working at the Charters
Towers Hospital who suffered a frozen shoulder type injury
"arising out of a stumble, loss of balance and fall upon a
stairway". The Plaintiff had previously made a damages claim
against Coles arising out of a lower back injury sustained in a
part-time university job which she conceded had caused her to seek
work in the public rather than the private health systems.
The expert liability witnesses agreed that there was a
significant inconsistency in the dimensions between the successive
risers on the stairs. They also agreed that, although it was not
clear whether a relevant Australian Standard applied, they would
recommend the installation of concrete capping to eliminate the
height differentials and that this measure would be
It is clear that the stairway was relatively old, but there was
no evidence of any previous injuries or complaints made about the
stairs. Accordingly, the case turned on whether an employer has a
duty to inspect for latent dangers.
Against this background the Defendant argued that:
As no Australian Standard or code applied to the stairs, the
Plaintiff had not demonstrated any change should have been
Given the very modest differential in height that any change
would have avoided the incident; and
The exact circumstances of the incident were uncertain and so
the Plaintiff was negligent for not looking down at her feet.
Informed by the often cited principle that what is a reasonable
standard of care for an employee's safety is "not a low
one"1 North J found that the employer had a duty to
"turn its mind" to the safety of the stairway. In the
case of this employer, that meant engaging an expert to inspect
them and make recommendations.
His Honour was also prepared to find that, as the engineers
thought that the introduction of capping would have eliminated the
risk of a slip or fall caused by riser height
variation, this would have prevented the incident.
On the issue of contributory negligence, his Honour found that
the incident would not have been prevented if the Plaintiff had
walked up holding the handrail. Although he found the
Plaintiff's conduct suggested "inadvertence, inattention
or misjudgement" he was not prepared to find that the
Plaintiff was guilty of contributory negligence.
It was common ground that the Plaintiff had suffered frozen
shoulder syndrome with at least some psychological overlay. The
Plaintiff also led evidence from pain specialists to the effect
that she had a permanent impairment of up to 30%.
Following the incident the Plaintiff continued to work as a
physiotherapist for a period of time. However this proved
unfeasible following which she partly completed a Masters in Public
Health Administration. She then successfully completed a Law Degree
with Honours. By the time of trial the Plaintiff was conducting her
practical legal training on a part-time basis.
The Plaintiff was a 'knowledge worker' who was found by
the judge to be highly intelligent and hence expected to secure
alternative employment. Despite this, the Plaintiff received an
award for future economic loss based upon a net loss of $1,000 per
The duty of an employer is a very high one. In other contexts, a
Defendant has been found not to have a duty to inspect for latent
defects. For instance, in Sheehy v Hobbs, a tenant who was
rendered a paraplegic in very similar circumstances to these was
unsuccessful. However, this case demonstrates that for an employer
to avoid claims relating to dangers in its buildings it must have
them periodically assessed by experts.
The case also demonstrates in cases where a claimant has lost a
particular career due to injury to avoid large quantum the
defendant must lead persuasive evidence as to what else they may be
1 O'Connor v Commissioner for Government
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