Negligence claim against employer succeeds after the activation of a portable alarm caused the plaintiff to be startled and strain his neck13 November 2018 | Employer's Liability
The plaintiff claimed damages for personal injuries caused when a co-worker switched on a personal gas detector, which triggered an alarm, and startled the plaintiff.
The court had to consider whether the plaintiff’s employer was negligent for failing to take steps to reduce the risk of injury arising from leaving a faulty gas detector in a room where it could be activated. The court also had to assess the damages payable against a background where the plaintiff alleged he would never work again, and the employer contended that the injuries were pre-existing and the plaintiff overstated the severity of his injuries.
On 12 March 2012, the plaintiff was seated at his desk, in an area close to where a faulty personal gas detector was placed on a table awaiting collection for offsite repairs. The gas detector was not in its usual case or place of storage. A co-worker switched on the personal gas detector, which triggered an alarm and startled the plaintiff. The plaintiff reactively turned sharply to his left to identify the source of the noise. He felt pain to his neck and left shoulder, and partly in his right shoulder.
The plaintiff was initially diagnosed as suffering a soft tissue injury to his neck, and he returned to work with restrictions. By September 2012, an MRI confirmed the plaintiff had degenerative cervical pathology with impingement of the C5 nerve root. Further scans and interventions led to a confirmed diagnosis of degenerative disease at C4/5 with a recommendation of anterior decompression and an artificial disc implant. The plaintiff had the procedure on 13 August 2013. The plaintiff contended that after the procedure he continued to suffer from significant pain. He also contended that he developed psychological and psychiatric complications including anxiety and depression.
At trial, the plaintiff alleged that he was totally and permanently disabled by his injuries. He sought damages of over $2.5 million, plus workers' compensation entitlements already paid by the workers' compensation insurer.
The plaintiff argued that the employer negligently permitted the faulty gas detector to be left in the room where it could be accessed, instead of ensuring that it was decommissioned and/or safely secured elsewhere.
The Decision at Trial
The court held that the magnitude and type of startle response evinced by the plaintiff was reasonably foreseeable, as was the risk that he would suffer musculoskeletal harm of the whiplash kind. The court held that the employer could have taken steps to minimise the risk of harm, including tagging the unit out or placing it in an inaccessible place, neither of which was done.
The court found that the employer breached its duty of care to the plaintiff because someone in a position of responsibility left a defective alarm in an office environment where it could foreseeably be activated without warning to others and physically startle them enough to provoke some form of musculoskeletal injury.
In assessing damages, the court held the accident caused the physical and psychological injuries suffered by the plaintiff, but the court did not accept evidence that the plaintiff would never work again. The court found that the plaintiff’s injuries were treatable and remediable to a very real extent. Therefore, the plaintiff was not awarded damages on the basis he would never work again.
Future economic loss was assessed on the basis of total incapacity for five years, and a global sum of $200,000 thereafter. The award represented 46% of the total future economic loss claimed by the plaintiff.
The 42 year old plaintiff was awarded damages of $1,976,364.40 (inclusive of indemnities owed to the workers' compensation insurer, Medicare and HBF).
The employer is considering whether to appeal the decision to the Court of Appeal.
Implications for you
This case is a reminder an employer’s duty of care is onerous, and an employer has to take steps to minimise the risk of harm to employees from foreseeable risks, even if the magnitude of the risk appears to be very low.
It is also is a good example of a case where a relatively minor incident can lead to serious injuries resulting in significant exposure to the employer and insurer to pay damages.