To what length should an employer mitigate the risk of injury.
In workers' compensation negligence claims, it is necessary to show that a reasonable employer ought to have taken preventative measures to guard against the risk of harm to the employee.
However, what are reasonable preventative measures and when do precautions become unreasonably burdensome?
The recent New South Wales Court of Appeal decision of Bauer Media Pty Ltd v Khedrlarian  NSWCA 288, handed down on 18 November 2020, dealt with just this issue.
Ms Khedrlarian was employed by a labour hire company called Demand Personnel Pty Ltd. Between 4 October 2009 and 27 February 2011 she was placed, in a labour hire capacity, at the distribution centre of Bauer Media. Bauer Media was a magazine publisher and distributor of printed materials. Ms Khedrlarian's role there involved selecting the number of magazines to be dispatched to newsagents and placing them on a conveyor belt. She also spent time labelling bundles of magazines at a nearby stationary workstation.
It was alleged that Ms Khedrlarian suffered a neck and shoulder injury on 27 February 2011 and, consequently, she brought a negligence action against both Bauer Media and Demand Personnel alleging that they failed to provide a safe system of work. The Primary Judge in the NSW District Court found that Bauer Media and Demand Personnel had failed to ensure a proper system of task rotation to reduce or eliminate the risk of injury. The Primary Judge found the risk of a musculoskeletal injury arising out of the work at Bauer Media's premises was foreseeable. The Primary Judge relied upon an expert report which recommended job rotation because of the high risk to the worker of suffering such an injury and found it was probable an injury would occur if job rotation were not in place. The Primary Judge had found that Bauer Media and Demand Personnel exposed Ms Khedrlarian to a risk of injury by requiring she perform continuous repetitive tasks without rotation. Ms Khedrlarian argued it was not that the employer failed to take steps to prevent the risk but rather that the employer created the risk. Bauer and the Workers Compensation Nominal Insurer (the substitute for Demand Personnel) appealed the primary decision to the NSW Court of Appeal.
The question for the Court of Appeal was to decide whether the Primary Judge erred in concluding there had been a breach of duty of care by not rotating the worker's tasks. In doing so, the Court had to consider firstly what a proper system of task rotation would be and then whether that system would reduce or eliminate the risk of injury to the worker. The Court also had to consider what the burden of taking those precautions would be to both Bauer Media and Demand Personnel.
In considering whether to allow the appeal, the Court noted that Ms Khedrlarian had not clearly identified how her injury had occurred. Ms Khedrlarian had reported the injury occurred at home initially but later gave evidence that it had occurred when reaching across a conveyor belt to get magazines off a shelf. Ms Khedrlarian also stated that she had experienced tingling two months earlier when using a hook knife to cut a bundle of magazines. Given all these different versions provided by the plaintiff, the Court found it impossible to identify the precautions that ought to have been taken without knowing the mechanism of the injury itself.
The Defendants disputed the admissibility of the expert report relied upon by Ms Khedrlarian in the trial. That report classed the hazard to which the plaintiff was exposed as a "high risk". The Court found that despite the contents of that report, there was no evidence that any heavy lifting or bending activities were actually required in Ms Khedrlarian's role. Further, the report offered no opinion on whether the manner of using the hook knife to cut a bundle was appropriate. The report did allude to a gradual onset of symptoms over a period of months whilst undertaking repetitive manual tasks, but it was not specific on that point. Most importantly, the expert failed to identify the precautions which ought to have been taken to prevent an injury which resulted from repetitive tasks. With all of these issues, the Court found that the challenge to the admissibility of the report ought to be upheld. Their Honours found that the report ought to have been rejected because the expert failed to provide any support for the only particular of negligence that was relied upon and failed to identify the precise precaution which ought to have been taken.
The Court went on to consider that no complaints had been made about the system of work prior to or since Ms Khedrlarian's injury and her injury appeared to be the only such incident to have occurred in her six years there. Given that fact, Their Honours held the risk was not highly likely to materialise. Evidence was presented that rotation on the conveyor belt itself would not have made any difference to the effect of the repetitive actions because it was all the same action and same weight no matter which position a worker rotated to.
The Primary Judge had found that a reasonable employer would have taken the precaution of not requiring Ms Khedrlarian to participate in the system of work they had in place. The Court of Appeal held that this was not a precaution that a reasonable person would have taken. The Primary Judge had also suggested that Demand Personnel should have refused to supply Ms Khedrlarian to Bauer Media until job rotation was in place. Again, the Court of Appeal disagreed with this suggestion as that would likely have destroyed Demand's business. Demand had placed 55 workers with Bauer Media and expecting that they refuse to supply those workers until an entire system of work was changed would have been unreasonable.
Ultimately, Their Honours held that the Primary Judge erred in finding a breach of duty. The Court of Appeal held the plaintiff's claim ought to have been dismissed and the appeal by Bauer Media and Demand Personnel was allowed.
This case highlights the fact that it is not merely enough to show that an employer breached its duty of care by failing to have a proper system of work in place, but rather one must go further to show what specific precautions ought to have been taken to obviate the risk. If the precautions are unreasonable or overly burdensome, the principles of negligence are simply not met.
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