Failure to meet duty of care costs employer $120,000 for employee’s rolled ankle

7th Apr 2022

Sometimes it’s much wiser to agree to a worker’s reasonable request than risk breaching your duty of care to employees, which could land you in a court battle.

This is the scenario that played out for a Canberra employer, whose receptionist rolled her ankle while rushing to answer the office phone. The employer was taken to court by the receptionist, where it was ordered to pay $120,000 in compensation for her rolled ankle in Michel v Broadlex Services Pty Ltd [2020] ACTMC 27.

Refusal to buy simple headset proves to be costly

The Court heard the employee had asked her employer to get her a headset so she didn’t have to rush to answer the phone from the nearby storage room, where she often worked. The employee said that if calls were not answered quickly, they would be diverted to the firm’s Sydney office and she would be reprimanded for not being at her desk. The employer had refused the receptionist’s request, arguing she was not away from her desk often enough to justify the expense.

With headsets costing as little as $25, it would have been a better move to buy the headset, which would have reduced the risk of an injury in the workplace.

Employer should have taken precautions to reduce risk of injury

In court, the receptionist said she often had to rush from the back room to answer the phone and on one occasion rolled her ankle while doing so.

‘She heard a crack and it was incredibly painful,’ her doctor testified, describing the injury as an ‘inversion sprain’.

‘She says what made it more annoying was that when she picked up the telephone, the person had hung up.’

The magistrate said the employer ‘knew or ought to have known that the circumstances giving rise to the risk of injury to the plaintiff were recurring’ (at [86]).

‘I am satisfied that the risk of harm to the plaintiff was not insignificant and that a reasonable person in the defendant’s position would have taken the precaution of providing a headset to the plaintiff to enable her to answer the phone while away from her usual desk at reception,’ the magistrate said (at [89]) as he awarded the receptionist $119,000 plus costs.

What is an employer’s primary duty of care to employees?

An employer’s legal duty of care to employees is outlined in the Work Health and Safety Act 2011 (NSW). Section 19 of the Act provides that there is a ‘primary duty’ of a person conducting a business or undertaking to protect the health and safety of all workers and make sure that workers are not put at risk of injury or illness, ‘so far as it is reasonably practicable’ to do so.

Employer’s duty of care extends to anyone on its premises

In the Civil Liability Act 2002 (NSW), there is a wider duty of care to persons who are on premises. The duty is that a person who owns or controls the premises must show ‘reasonable’ care for the safety of persons and take steps to avoid reasonably foreseeable harm or damage.

Section 5B of the Act specifies the principles behind a duty of care. It includes that it would be necessary for the plaintiff to establish that the risk was foreseeable, the risk was not insignificant, and a reasonable person would have taken precautions to limit the risk.

Workplace safety must be a priority

Employers need to remember that legally they have a duty of care to employees to provide a safe working environment.

If an employer has been alerted to a possible safety concern in the workplace, they must take it seriously and adopt reasonable measures to ensure that any safety problems are rectified.

Failure to do so could result in a court finding them to be negligent and ordering them to pay thousands in compensation.

This is an edited version of an article first published by Stacks Law Firm.

Emily Wittig is a lawyer at Stacks Collins Thompson in Hornsby with over 2 years’ post-admission experience. She has a particular focus on employment law, having spent over two years prior to her admission working in employment relations, in both federal and state jurisdictions. She previously worked as a Fair Work inspector for the Fair Work Ombudsman, and as an employment relations adviser for the Motor Traders Association of NSW. Emily volunteers as a solicitor at a community legal centre and enjoys helping people who have been taken for granted by their employer.

The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Workers compensation Work Health and Safety Act 2011 (Cth) Emily Wittig