Step by Step: ACT Court of Appeal offers "infinitesimally low" view on Coles' Standards of Care for employees
On 29 June 2018 the ACTCA dismissed the appeal by Coles Supermarket Australia Pty Ltd against a decision holding it liable for damages for personal injury sustained by a former employee who fell to the ground when dismounting a “Safe-T-Step” sideways after rearranging stock on higher shelves.
- Whether the trial judge erred in concluding that Coles Supermarket Australia Pty Ltd (the Appellant) had breached the duty of care it owed to the respondent by failing to take precautions against the risk of harm, particularly the precautions of training and supervision in the safe use of a device provided by it.
- Whether the risk of injury ought to have been obvious to an adult employee and whether the probability of injury was so ‘infinitesimally low’ that no reasonable employer in the Appellant’s position would take any precautions against it.
- Whether there was a misapplication by the trial judge of s43(2) of the Civil Law (Wrongs) Act 2002 (the Act).
- Whether the trial judge erred in concluding that the respondent was not guilty of contributory negligence.
The respondent employee sustained a serious injury when she dismounted sideways from a “Safe-T-Step” whilst rearranging stock on the higher shelves at the Appellant’s Tuggeranong store.
The Appellant denied liability. It alleged that proper training in the safe use of the step had been provided by the provision of an induction booklet and training video. It further alleged that the Respondent was guilty of contributory negligence because she had made a deliberate choice to use the step in a way that she knew or ought to have known would expose her to risk of harm.
The Decision at Trial
At first instance, the trial judge found that the Appellant was liable in negligence for injuries sustained by the Respondent in the course of her employment. The trial judge found that simply “calling a step a safety step does not make it so” and even though the step was not a dangerous step per se, the trial judge found, with the assistance of expert ergonomists, that there was a risk associated with using the step in a sideways fashion which was reasonably foreseeable and not insignificant in terms of causing harm.
The trial judge found that there was a likelihood of accidents involving the step and that there had been “many incidents involving its use, such that a risk assessment was thought necessary and was done” and in those circumstances held that the Appellant, as employer, should have and could have avoided the incident by proper supervision and training. The trial judge acknowledged that whilst the Appellant had prepared training materials in respect of the step for new employees, those materials had not been brought to the Respondent’s attention nor had she been instructed as to the safe use of the step.
The Issues on Appeal
On appeal the following issues were raised for determination by the Court:
- Despite a failure to bring the relevant training materials to the Respondent’s attention or provide proper instruction, the safe manner of using the step was obvious such that no amount of training or supervision was necessary in any event (the “obviousness” issue).
- Whether the probability that harm would happen if precautions were not taken ought to have been assessed by the trial judge as “infinitesimally low” by comparison to the number of uses of the step each day and year in the Appellant’s stores Australia-wide (the “probability issue”).
- Whether there was a misapplication by the trial judge of s43(2) of the Civil Law (Wrongs) Act 2002 and whether the trial judge erred in concluding that the Respondent was not guilty of contributory negligence.
The Decision on Appeal
The Court of Appeal was not persuaded by the Appellant’s submissions on the above mentioned issues and in dismissing the appeal held notably that whilst there was a foreseeable and not insignificant risk of harm arising from a particular method of using the step, the risk was not so obvious so as to provide a complete answer to the questions of standard of care, breach and contributory negligence. In this case, the step was provided by an employer to an adult employee who was instructed to use it to rearrange stock on higher shelves. No alternative device was provided. An adult employee in the Respondent’s position would not have had the benefit of an ergonomist’s opinion on the safe use of the device and in light of the outward appearance of the step was not aware of the danger presented by using the step sideways.
In relation to the probability issue, the Court of Appeal held that the Appellant failed to reconcile its adoption of the phrase "infinitesimally low" with its concessions that there was a foreseeable risk of harm and that the risk was not insignificant. The Court of Appeal was not persuaded by the Appellant’s use of statistical data to evidence a low rate of mishap when using the step across all of its stores and held that it was quite a different circumstance to claim that the probability of harm is so low that all other factors ordinarily taken into account to ascertain the standard of care must be ignored. The task to be performed pursuant to s43(2) of the Act involves a balancing of countervailing considerations (the “negligence calculus”) to the extent that a reasonable person in the Appellant’s position may be found to have a duty to take precautions against even a very low probability of harm. In this case, the danger of using the step in the manner adopted by the Respondent was known to the Appellant; therefore, the standard of care required the taking of precautions in the nature of training and supervision. The Court of Appeal upheld the trial judge’s s43(2) assessment and conclusion that the Respondent was not guilty of contributory negligence.
Implications for you
Two very pertinent points arise from this judgment that concern employers:
- The act of labelling something ‘safe’ does not in fact make it safe. Employers are under a perpetual duty to ensure the safety of not only the devices which they provide to employees but the manner of their use. The act of providing training materials and videos may also not be enough if employees are also not actively supervised in the proper use of equipment required to carry out their daily duties.
- Employees charged with the task of repetitive activity, in this case mounting and dismounting the step to work the length of an aisle, might reasonably be expected to find the most efficient use of time and space in which to complete the work. Employers should be vigilant in that in order to economise their tasks and demonstrate efficiencies, employees may be inadvertently putting themselves at risk of injury if not properly trained and supervised which ends up costing time and money in the long run.