Horseplay in the workplace leads to damages

6th May 2021

A certain amount of joking, skylarking and horseplay in the workplace is usually harmless and lightens the atmosphere. But when it goes too far and someone is injured, the consequences can be very serious and costly.

Such was the case in Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group [2020] NSWDC 371. In 2020, the District Court of NSW heard that Mr Ajia was employed by a labour hire firm in 2016 to work on a Sydney building site, performing labouring work which he had done for several years.

The Court heard that after lunch on 13 April 2016, Mr Ajia was walking across the site when his supervisor came up behind him and playfully put him in ‘sort of’ a ‘bear hug’. They subsequently fell to the ground and the supervisor landed on Mr Ajia’s leg, causing immediate and extreme pain.

Horseplay in the workplace leads to serious injury

Mr Ajia had to undergo three separate surgeries on his right ankle and could not continue doing the physical work he had been doing as a labourer. He retrained to monitor alarms in the security industry which allowed him to work in a seated position, but in doing so, he earned less than he had before the incident.

Scotting DCJ found that the company had breached its duty of care to Mr Ajia and awarded him $662,012 in damages, including more than $200,000 in future economic loss and loss of superannuation.

Company disputes seriousness of injury and employs private investigator

The supervisor’s defence was that Mr Ajia was a big fellow and they had developed a relationship consisting of ‘a bit of fun’ at work, playfully wrestling and knocking about in previous encounters.

The supervisor’s employer defended the damages claim, presenting evidence from a private investigator who had followed Mr Ajia and recorded him lifting weights at a gym. The company used this evidence to support their claim that Mr Ajia was exaggerating the long-lasting nature of his injuries.

Scotting DCJ dismissed the investigator’s report and found that Mr Ajia was telling the truth about his continued pain.

Skylarking known to take place at worksite

‘The risk of harm was not insignificant because the risk of physical injury that arose from skylarking was obvious, the practice of skylarking was known to take place at the site and it was capable of causing a serious injury, such as if a worker fell and struck their head on the ground,’ Scotting DCJ said in his judgment (at [253]).

Scotting DCJ continued to state that:

‘A reasonable employer in the position of the defendant would have provided supervision of the workers on the site to prevent the occurrence of episodes of skylarking’.

Employer’s duty to provide competent supervisors and safe workplace

Sections 5B, 5C and 5D of the Civil Liability Act 2002 state what is to be taken into account when considering negligence and breaches of duty of care.

The employer has a duty of care to provide competent supervisors and a safe workplace. In Ajia, the Judge held that the employer should have known there was skylarking on its building site, and that such behaviour was far too dangerous, and should have acted to stop it.

Danger of injury and death from horseplay in the workplace

This case highlights the need for employers to be aware that their duty of care includes the removal of a source of danger to an employee posed by another employee, even if no harm was intended.

There are far too many injuries and deaths on building sites to allow horseplay in the workplace, especially if it is carried out by a supervisor who is responsible for safety on the site.

Workplace fatalities in Australia increase significantly from 2018 to 2019

Safe Work Australia reports that 183 people died in workplace accidents in 2019 in Australia – 62 of them in NSW. This represents an increase of 21% from the previous year’s national figure of 144 deaths and an increase of 31% from the previous year’s figure of 47 deaths in NSW.

Australian work sites became significantly more dangerous from 2018 to 2019.

Construction, transport, warehousing, agriculture, forestry, fishing and the postal industry are industries with the highest number of workplace fatalities.

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

Emily Wittig is a lawyer at Stacks Collins Thompson in Hornsby with over two 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 these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Workers' rights Workers compensation Employee Rights workplace injury