Author: Nicole Lythall
The Factual Background
The Plaintiff worked as a medical sales representative at the Defendant’s premises at Cleveland. Those premises were divided into a number of work stations or cubicles. The Plaintiff’s work station comprised a partitioned area containing a desk and a chair on castors. The partition wall on her left hand side had a number of overhead shelves while the partition wall on her right hand side had a map attached to it.
When the Plaintiff first commenced work, the chair was positioned on the carpeted floor. However, some weeks after commencing employment, plastic mats were provided by the Defendant and placed under the chair in each work station.
The Plaintiff was planning a sales trip on the day in question. She stood up from her chair to retrieve a book from the top shelf on the left hand side of her work station then turned to look at the map on the right hand side of the work station. As she commenced to sit back down, she found the chair wasn’t there and fell to the floor fracturing her sacrum.
In addition, the Plaintiff claimed to have developed a secondary psychiatric/psychological injury.
The Evidence at Trial
The Plaintiff’s Evidence
The Plaintiff gave evidence that some weeks after she was employed in the office she was instructed to place a plastic mat under her chair. The Plaintiff complied with that request but found that her chair had a tendency to move very quickly over the plastic mat. She complained to the Defendant’s Office Manager, Ms Henderson a few days after the mats arrived that she found the mat was “extremely, extremely slippery”.
In addition, the Plaintiff called evidence from a co-worker, Ms Penhaligon, who used a similar chair and mat in an adjoining work station. Ms Penhaligon also gave evidence regarding the propensity of her chair to slide quickly over her mat. She said she complained to the Defendant’s Office Manager, Ms Henderson, in the Plaintiff’s presence that the mats were “dangerous and hazardous”. That evidence was corroborated by the Plaintiff.
Both the Plaintiff and Ms Penhaligon gave evidence that the Office Manager directed them that the mats must remain at the work stations. In particular, Ms Penhaligon said she was told that “the mat was part of the refurbishment and management want [them] there”. The Plaintiff’s evidence was that she was simply told the work stations were to be the same.
The Defendant’s Evidence
The Defendant called 3 witnesses who had experience with the use of mats similar to those used by the Plaintiff, namely Ms Burchardt (the Defendant’s National Sales Manager), Ms Forster (National Manager, Corporate Services of a company associated with the Defendant and which occupied a neighbouring building) and Ms Bain (the Defendant’s former Office Manager). These witnesses gave evidence to the effect that they had all used plastic mats over many years and had worked in places where the mats were widespread without ever suffering any similar incident themselves or hearing of such an incident.
In addition, Ms Burchardt gave evidence that before the subject incident, neither the Plaintiff nor anyone else complained to her about the mat.
The Primary Judgement
The matter was heard before Justice Boddice in the Supreme Court of Queensland in Brisbane on 14 – 15 July 2010. Judgement was delivered on 30 July 2010.
His Honour rejected the following arguments advanced by the Defendant at trial:
- The mat had no causal relationship with the Plaintiff’s fall as the Plaintiff simply slipped from her chair when she attempted to resume her seat (i.e. a scenario consistent with the version given by the Plaintiff to her general practitioner that she had “slipped bum off edge of chair and landed on tail bone”);
- Even if complaints were made, a reasonable employer must balance the various risks in the workplace. The evidence given in the Defendant’s case showed there were no other incidents involving the mats and provision of the mats overcame difficulties using the chair directly on the carpeted floor.
Firstly, His Honour rejected the Defendant’s submission that the Plaintiff simply slipped off her chair. He found the Plaintiff to be a credible and reliable witness and accepted her evidence as to the circumstances of the fall. His Honour did not consider the entry in the general practitioners records was inconsistent with the Plaintiff’s evidence that the chair rapidly and suddenly moved from under her body as she was trying to resume her seat causing her to fall to the floor.
Secondly, His Honour rejected the Defendant’s contention that, even though complaints were made to it, it was reasonable for it to nevertheless insist on the mats being used at the work stations. Importantly, His Honour was of the view that:-
“… An employer is obliged to provide a safe workplace. In satisfying its obligation in this regard, a reasonable employer ought to have regard to complaints made by employees as to the safety of equipment they are directed to use in the course of their employment. Despite receiving complaints from two employees as to the use of the mats, and requests from those employees that they not be required to use those mats, the Defendant directed those employees, including the Plaintiff, to continue to use those mats. No evidence was lead to suggest that any investigation of the complaints was undertaken at all. No reason was given to either complainant as to why they were required to use the mats. According to the Plaintiff, Ms Henderson simply indicated her orders were that all work stations were to be “the same”.
In my view, the stance adopted by the Defendant was an unreasonable stance having regard [to] the risks associated with the continued use of the mat in circumstances where the Plaintiff had expressly complained that it was “extremely slippery”. Evidence that other employees had indicated, after the event, a preference for use of the mats on the basis it rendered it easier to move a chair rather than having the chair placed directly on the carpeted floor, was of no forensic weight. Those particular employees were not called, their particular circumstances were not known, and that evidence was inconsistent with the evidence of both the Plaintiff and Ms Penhaligon that they had no difficulty moving the chair across the carpet. I accept and prefer the evidence of the Plaintiff and Ms Penhaligon on that matter”.
Accordingly, the Defendant’s failure to adopt a reasonable response to the risk of injury constituted a breach of the employer’s duty of care to the Plaintiff.
The Plaintiff was awarded net damages of $419,461.36 clear of the WorkCover refund ($54,886.97). That included general damages of $60,000.00, past loss of income of $55,000.00 and future loss of income of $265,644.00.
The Court of Appeal Judgement
The Defendant appealed that decision contending that the claim should have been dismissed or that the amount of damages awarded to the Plaintiff for some items of loss should be reduced.
The matter was heard in the Court of Appeal on 18 February 2011. The Court (comprising Muir JA, Fraser JA and Chestermann JA) provided reasons for decision on 15 March 2011. Fraser JA provided the leading judgement, with Justices Muir and Chestermann concurring with the proposed orders.
The issues in the appeal involved questions of fact and the adequacy of the Trial Judge’s reasons in the particular circumstances of that case.
Justice Fraser noted that the Trial Judge’s findings depended in part upon the assessment on the oral evidence, which His Honour had the advantage of seeing and hearing as the trial unfolded. Ultimately, he did not consider that there was any basis with justified the Appeal Court interfering with those findings.
In reaching that decision, His Honour thought that it was relevant that the Defendant’s Office Manager, Ms Henderson, was not called by the Defendant to rebut the evidence provided by the Plaintiff and Ms Penhaligon that the mat and chair in question were not tendered in evidence, that there was no expert evidence to contradict the Plaintiff’s evidence on the propensity of her chair to move surprisingly rapidly over the mat and there was no evidence to contradict Ms Penhaligon’s evidence that after the accident the Plaintiff’s chair was found off the mat and out of the cubicle.
His Honour also rejected the argument that the trial judge had reversed the onus of proof by concluding the mat was “unreasonably slippery”, given the essentially unchallenged evidence provided by the Defendant’s witnesses. Rather, His Honour noted that the evidence provided by those witnesses (Ms Burchardt, Ms Forster and Ms Bain) did not materially conflict with the evidence produced on behalf of the Plaintiff about the behaviour of the chair on the mat in her cubicle or the evidence of the complaint made to her immediate supervisor, Ms Henderson.
Accordingly, the Court held that the Trial Judge’s finding that the Defendant was liable should be affirmed. In addition, it rejected the Defendant’s challenge to the Trial Judge’s assessment of the Plaintiff’s damages.
The Significance of the Decision
This is a decision which turned very much on its own facts. That is, it is not to say that the plastic mats commonly found in office premises are dangerous per se. The critical issue in this instance was the reasonableness of the employer’s response to a risk of injury in circumstances where it had been expressly notified of that risk by both the Plaintiff and a co-worker.
The Trial Judge found, and the Court of Appeal affirmed, that in satisfying its obligation to provide a safe workplace, a reasonable employer ought to have regard to complaints made by employees as to the safety of equipment they are directed to use in the course of their employment. In the absence of any investigation into the cause of the complaints, it will be difficult for an employer to establish that it has satisfied its obligations in that regard.
Tags: Nicole