Larkin v Suncorp Staff Pty. Ltd.
[2013] QDC 28
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- Unreported Judgment
- Appeal Determined (QCA)
- Larkin v Suncorp Staff Pty. Ltd.[2013] QDC 28
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Larkin v Suncorp Staff Pty. Ltd.[2013] QDC 28
Larkin v Suncorp Staff Pty. Ltd.[2013] QDC 28
DISTRICT COURT OF QUEENSLAND
CITATION: | Larkin v Suncorp Staff Pty Ltd [2013] QDC 28 |
PARTIES: | IAN DAVID LARKIN (plaintiff) and SUNCORP STAFF PTY LTD (defendant) |
FILE NO/S: | D9/2011 |
DIVISION: |
|
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Toowoomba |
DELIVERED ON: | 22 February 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 & 7 February 2013 |
JUDGE: | Samios DCJ |
ORDER: | Judgment for the plaintiff against the defendant. |
CATCHWORDS: | EMPLOYMENT LAW – Injury to employee – liability of employer – negligence Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234, 237 Vairy v Wyong Shire Council (2005) 223 CLR 422, 433, 461, 461-462 Webb v The State of South Australia (1982) 43 ALR 465, 466-467 Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-8 |
COUNSEL: | Ms S D Anderson for the plaintiff Mr Morton for the defendant |
SOLICITORS: | Shine Lawyers for the plaintiff McInnes Wilson for the defendant |
- [1]On 15 April 2008 at his place of work Mr Larkin struck the inside of his right knee on a cupboard door handle.
- [2]Mr Larkin claims against his then employer Suncorp Staff Pty Ltd (“Suncorp”) damages for personal injuries and consequential loss.
- [3]The quantum of Mr Larkin’s claim is agreed. However liability remains in issue.
- [4]Mr Larkin’s claim is based on an alleged breach of contract of employment and/or negligence on the part of Suncorp.
- [5]Mr Larkin was born on 2 December 1971. He was 36 years of age when he struck his knee. At the time he worked in Suncorp’s call centre in Toowoomba as an insurance sales officer.
- [6]There is no dispute the premises contained three telephones from which employees were permitted by Suncorp to make outgoing telephone calls. One of the telephones from which employees were permitted to make outgoing calls was situated on a bench top above a set of cupboards in one of the corridors.
- [7]It is also not in dispute:
- (a)The bench top on which the telephone rested stood approximately 90.5 centimetres from the floor.
- (b)The cupboards beneath the bench top were approximately 54 centimetres in height.
- (c)The handles fixed to the cupboard were approximately 46 centimetres from the floor.
- (d)The metal handles protruded approximately 3.8 centimetres from the door. (Suncorp’s expert in his report states the handles protruded 3.9 centimetres from the door. However, in my opinion nothing turns on the difference.)
- (e)The handles were rectangular in shape with right-angled edges.
- [8]When Mr Larkin gave evidence he said he used the phone on the bench. He said it had been on the bench for about three weeks. He said he placed the phone back on the hook and as he went forward to place it on the hook and turned to his left to go back towards his desk he ended up striking the inside of his right knee on the cupboard door handle. He said he received treatment for his knee.
- [9]When Mr Larkin was cross-examined he accepted that there were about 300 filing cabinets in the call centre and by implication from the photograph that was then tendered these filing cabinets had the same handles as the handle he struck with his knee. When he was re-examined he agreed these filing cabinets had the same handles but he said they were not the same dimensions. He said he meant the handles were actually at different levels on each drawer so they did not line up with the knees. He said these filing cabinets push back under the desk so they did not protrude out from under the desk itself.
- [10]Further during cross-examination Mr Larkin accepted there would have been people working in the area where he struck his knee. He accepted there was a fax machine on the bench and that the bench was used by staff for collating photocopied material. He also accepted there were about 300 people working in the call centre. He also agreed that the toe board under the bench being level with the bench acted as a mechanism to stop people getting close to the handles. When it was suggested to him he would have had to have leant or bent his knee to a significant degree forward in order to contact the handle he said he did bend forward and he turned to the left as well at the same time. Mr Larkin accepted he had to bend a fair way forward with his knee before he could possibly hit the handle because of the fact that the toe board or the absence of any indent for the toe meant he was standing out from the bench. Although Mr Larkin denied there had been a phone in that position throughout the time he had been employed at the call centre he accepted there was a fax machine and a photocopier. It was also suggested to him that he had been the sort of person who would bounce off walls. He accepted that was his personality in his younger days. He denied that was how he was immediately before the accident. He denied he was someone who charged around the call centre at the rate of knots, walking very quickly. Regarding bouncing off walls, he accepted that was how he was in his personal life but not when he was at work. He denied he used to rush around the call centre with no regard for any rules that might have said he had to move sensibly.
- [11]Mr Larkin’s expert witness Mr O'Sullivan considered the bench to be a combination of a work bench and a storage unit. In his first report Mr O'Sullivan states there is a publication entitled “A Guide for the Office” produced by Workplace Health and Safety Queensland which gives guidelines on standing workbenches. He says this publication describes that benches need adequate leg space to allow employees to stand close to the bench and may allow employees to rest one foot on a step or rail. Mr O'Sullivan also in this report refers to the Manual Tasks Code of Practice 2000. He says this identifies the general need for workstations to have knee and leg clearance beneath work surfaces. In his first report Mr O'Sullivan says the bench in question should have a top which protrudes out beyond the front of the cupboards if the bench is to be used as a work surface. He states in any event there should be no protrusion beyond the alignment of the edge of the bench in which case the handles can be considered to be a protruding object interfering with leg space or knee room at the standing height bench. He states in his first report that the possible countermeasures include extending the bench top out perhaps 100 millimetres to sit over (or) protrude beyond the handles or replace the handles with recessed handles or have lip-type handles at the top of each cupboard door.
- [12]In Mr O'Sullivan’s second report he states again the Manual Tasks Code of Practice recommends an overhang of the bench top. However when cross-examined Mr O'Sullivan accepted his statement in this regard could not be sustained. Nevertheless his second report goes on to say because tasks are performed at the bench including collating, faxing and likely combined tasks where a person is likely to move along the front of the bench in close proximity to the bench, the door handles represent a clear impact hazard for the knees. He refers to the Queensland Government Code of Practice: Risk Management and says this requires consideration of typical risk factors in tasks and process. He states a specific risk factor referred to is known as “impact”. He states the handles represent an impact hazard given the nature of work conducted at the bench and the need for close proximity to the bench. Further in Mr O'Sullivan’s second report he refers to the need for there to be toe room. He states once toe room is provided there also needs to be no obstacles preventing a person standing safely up to the bench, for example, the handles.
- [13]In his third report Mr O'Sullivan refers to AS/NZS 4443: 1997: Office panel systems – workstations. Based on this he states this standard requires that all surfaces of the workstation including the underside of the workstation top, shall be free of projections and pinch points that could cause personal injury or damage to clothing. He states the handles could be considered a projection which could cause personal injury, given their profile, position and the presence of non-rounded “sharp” corners. Further in Mr O'Sullivan’s third report he refers to a number of other references and in particular to an interior design illustrated reference which he says shows illustrations of benches and under bench cupboards without protrusions. He concludes overall, by protruding relative to the bench top and at knee level and having a sharp profile representing a small impact area, the handles should be considered to be protrusions giving rise to a risk of personal injury.
- [14]Suncorp called two employees. Ms Bennett is the sales manager at the call centre. She has been there since the end of 2006. She said the phone at the bench had been there since she had been employed with Suncorp. She said the purpose of this phone was for personal calls so that a consultant could actually hop off the phone in their break and make personal calls from that phone as they did not allow them to do that from their desk. She also said that she had no recollection of anyone striking their knee. Regarding Mr Larkin, she said that around the call centre although he would not run he certainly walked quite quickly. She did say to him in passing, “Stop running around the pool.” She said Mr Larkin used the phone on a number of occasions.
- [15]When cross-examined Ms Bennett did not accept that the phone at the bench where Mr Larkin was injured was only installed in late March or early April 2008. She accepted there had been a change in the premises around that time from using a PBX telephone and communications systems to a VoIP, that is, voice over internet protocol telephone system. She said though the only phones that she knew of for personal use were those that were in the hallways. She would not accept the suggestion that the only phones available for staff to use were the ones that were on tables near pillars where televisions had been placed. She said the phones that she was aware of were the phone downstairs and a phone upstairs in the hallway. She accepted she did not reprimand Mr Larkin for moving too quickly around the workplace. She accepted it was not part of his performance review that he had ignored a rule that required him to move at a moderate pace. She also said that it did not cause her any concern and that she made a joke about him moving quickly rather than to just say “slow down” or “you’re walking too fast, you need to slow down”. She accepted it never caused her any concern that Mr Larkin was posing a safety hazard to himself or others in the workplace.
- [16]The other employee was Ms McGill. She is a consultant with Suncorp. She has worked there since May 2002. She was a processing officer from September 2004 until November 2011. Her work was doing faxing and policy work in that role. She did her work where the phone was at the bench where Mr Larkin hurt his knee. She said she did the faxing and the printing from the printer. She worked at the bench approximately five hours out of her seven and a-half hour shift. She moved up and down the bench. She said the phone shown in the photographs at the bench would have been there in 2005 to early 2008. She said it did not suddenly start being there in 2008. She said she did not bump her knee or any part of her body on the door handles when she worked there. She did not notice anyone else having any problems bumping themselves on the handles. She did not ever hear of anyone having any problems bumping themselves on the handles. She said she did not use the phone.
- [17]When cross-examined Ms McGill said she did not spend the entire five hours at the bench. She said sometimes she would be out in the hallway for half an hour while there was faxing going on. She accepted there was a change in the call centre in around April 2008 or late March 2008 when Suncorp installed some televisions that gave messages about selling and process. She agreed they had not been present in the call centre up to that point. However she did not recall there being some tables sitting in front of the pillars. She did not accept expressly that there were telephones in those positions. However she could remember when she first started in 2002 there was a telephone downstairs over near the windows. However she did not know how long it was there for. She did not know whether it was still there in March 2008. She also accepted that there had been a change from the PXB system to a voice over internet protocol system in the end of March or beginning of April 2008. When it was suggested to her that at that time a new phone for the first time was placed on the bench where the fax machine was she could not answer that. She said there had always been a phone but she was not sure if it was this phone but there was always a phone on the desk. It was then suggested to her that the first time a phone was placed on that desk was in late March/early April 2008. She denied this suggestion. It was suggested this coincided with there being a change in the telephone system from the PBX system to the voice over internet protocol. Ms McGill said she always remembered a phone being on the desk. She was not sure what type of phone it was but from when she was doing her processing there was always a phone on that desk. She also accepted there were many times she was not standing at the desk. She agreed she would not be aware of the incidents that occurred when she was not standing there.
- [18]Expert evidence was given for Suncorp by Dr Carnavas. In his first report Dr Carnavas states, in terms of the applicable literature, the incident location including the Unit is most accurately described as a “Standing Workstation” in which the Benchtop is the “work surface”. He states the Unit in this instance is difficult to categorise. He questions whether it can be categorised as a desk, bench or storage unit. Although he refers to a number of Australian standards by exclusion the one that appears applicable is AS/NZS 4442: 1997 Office desks. This standard by cl 2.2.7 provides that sufficient space should be provided under the work surface to allow free leg movement without obstruction. Nevertheless Dr Carnavas concludes that although the wording in the standard does not restrict the application of cl 2.2.7 to seated desks, the overall structure of the clause seems to suggest that this is the case as many of its parts could not be practically applied to standing desks. He says cl 2.2.9 of the standard appears to be the only portion of an Australian standard that may be applicable to the Unit at the incident location but it only addresses the bench top height. He therefore says there are no Australian standards which apply to the unit which have any significant relevance to this incident. Dr Carnavas also refers to other documents for guidance for the layout of standing workstations. However he states given the expected usage of the standing workstation at the incident location and the typically lightweight items that would be manipulated, the design of the Unit bench top appears appropriate. He says the lack of any useable foot clearance and the lack of overhang results in legs and knees remaining clear of any protrusions below the bench height such as the cupboard handles. In his opinion there are no statutory, regulatory or other standards requiring the countermeasures suggested by Mr O'Sullivan. In his opinion the current design appears to provide sufficient knee and leg clearance for normal work tasks. He states replacing the handles with an alternative design is possible. However the introduction of a grab point or recess at the top of the door would be impractical in the current design without more significant changes to the storage unit due to the top door edge currently being positioned underneath the shelf of the storage compartments above.
- [19]In Dr Carnavas’ second report he states that for the tasks typically performed at the cupboard unit (i.e. printing, sorting, collating, binding, et cetera) where the worker moves along the face of the unit, the speed of movement of the worker would normally be expected to be very low. Further, for the majority of the expected tasks performed at the Unit the worker would be positioned facing directly towards the bench top. In this toe-in orientation as discussed in his previous report, given the geometry of the unit including its lack of foot clearance at the base, the worker’s legs would be clear of the handles allegedly involved in the incident involving Mr Larkin. He also states that the height of the bench top coincides approximately with the hip height of most of the male adult population. He states, typically, the width of the hips is greater than the distance across the knee and calf extremities in a normal walking posture, so that the protrusion of the handles would not be sufficient to significantly interfere with movement of the knee and lower leg even with the side of the hips touching the bench top front edge.
- [20]I accept Mr Larkin’s evidence that at his place of work with Suncorp on 15 April 2008 he used the phone on the bench, and as he went forward to place it on the hook and turned to his left to go back towards his desk he ended up striking the inside of his right knee on the cupboard door handle. I accept this caused him an injury to his right knee.
- [21]There is a conflict between Ms Bennett’s evidence and Suncorp’s defence. That is, Ms Bennett said there were two telephones for the use of the employees whereas Suncorp’s defence admits the premises contained three telephones from which employees were permitted by Suncorp to make outgoing telephone calls. Notwithstanding this inconsistency I was favourably impressed by Ms Bennett. I was also favourably impressed by Ms McGill. I accept their evidence regarding how long the telephone had been on the bench.
- [22]As far as the issue of the speed at which Mr Larkin moved in the call centre, I accept Ms Bennett’s evidence that Mr Larkin was accustomed to move at a fast pace in the call centre. However, I do not accept Mr Larkin was moving at a fast pace when he struck his knee. I am satisfied Mr Larkin was exercising reasonable care for his own safety.
- [23]Suncorp’s duty to Mr Larkin was a duty to take reasonable care (per McHugh J Vairy v Wyong Shire Council (2005) 223 CLR 422, 435, also Hayne J at p 459). Suncorp concedes that it is foreseeable that a person may strike the handle on a door with part of their body. Therefore the issue to be decided in this matter is whether there has been a breach of the duty of care by Suncorp to Mr Larkin.
- [24]In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 Mason J, as he then was, said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”
- [25]Justice Hayne in Vairy v Wyong Shire Council stated at p 461:
“The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.”
- [26]Further at p 461-462 Hayne J said:
“When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.
…
And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as ‘consideration of the magnitude of the risk and the degree of the probability of its occurrence’. It is only by looking forward that due account can be taken of ‘the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’.”
- [27]Further Mason J in Shirt said at p 48:
“A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
- [28]Finally I refer to Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 where the High Court said at p 247:
“The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.”
- [29]In this matter in my opinion an important consideration is that employees did work at the bench in question and were permitted to make phone calls from that bench. Although Dr Carnavas said a worker’s legs would be clear of the handles I accept Mr O'Sullivan’s evidence that were a person to move along the front of the bench in close proximity to the bench the door handles represent a clear impact hazard for the knees.
- [30]I accept Ms Bennett’s evidence and Ms McGill’s evidence that over a period of a number of years no-one had hurt themselves on these handles. I accept Ms McGill worked for many hours at the bench and did not hurt herself. However, she did not make phone calls from the bench. I do not accept Dr Carnavas’ evidence that the speed of movement of a worker would normally be expected to be very slow. In my opinion the speed of movement of a worker would depend on the task being performed and in relation to a worker making a permitted phone call such a worker might bend towards the handle on the cupboards as Mr Larkin did.
- [31]I accept the risk of injury here was obvious and there had not been any other injury to other workers. However, in Webb v South Australia (1982) 43 ALR 465 at 466-7 the majority of the High Court said obviousness and the absence of accident over a period of time did not mean that the construction in issue in that case presented no risk of injury.
- [32]Further, in this matter I consider the handles could have been eliminated without undue difficulty or expense. In Webb the majority of the High Court held that, in such circumstances, where the risk could have been eliminated without undue difficulty or expense, the reasonable person’s response would have been to eliminate it.
- [33]Mr O'Sullivan accepted there were examples of similar handles on cupboards in other workplaces (Exhibit 10). I accept Mr O'Sullivan’s evidence that some of those examples show handles that are more shallow than the subject handles. However, these examples in Exhibit 10 did not suggest to me someone might be standing next to the cupboard making a phone call. Further, I accept Mr Larkin’s evidence that the 300 other cabinets in the call centre had handles that were not at knee height and were recessed from where work was being done. Therefore those cabinets do not suggest to me the subject handles were not a risk of injury to Mr Larkin. The other examples of handles in other locations do not satisfy me Suncorp was not bound to do something about the subject handles. The distinction in my opinion between those other examples and this matter is that a telephone was located on the work bench above the protruding handles. Other work done in this call centre and in the other places referred to in the evidence may not bring the employee in close proximity to the handles. On the other hand I am satisfied the use of the telephone here could bring the employee in contact with the handle. I am satisfied an employer exercising reasonable care would consider there could be injury suffered from that contact.
- [34]I am satisfied there was more than a slight chance Mr Larkin could suffer injury by coming into contact with the handle on the cupboard.
- [35]Looking forward and balancing the considerations I have referred to earlier I am satisfied Suncorp breached its duty of care to Mr Larkin by having those handles on the cupboard and by failing to replace the handles with the type of handle suggested by Mr O'Sullivan. I am satisfied if those countermeasures had been taken Mr Larkin would not have suffered injury.
- [36]Therefore, I give judgment for Mr Larkin against Suncorp.
- [37]I will hear the parties on the question of costs.