A 28-year-old first-year apprentice electrician who was “roughing in” power cables to a Palm Beach apartment building in June 2008 was following a workaround procedure to prevent the cables being forced up against sharp framing edges and risking insulation damage.
The improvisation employed offcuts of steel U-shaped channel that unfortunately exposed a razor-sharp edge that was to become the reason for Mitchell Heywood’s injury. It was against a loose piece of this unfixed channel that he had placed on a toolbox ready to install, that he accidentally bumped his elbow when descending a ladder. He severed his left ulna nerve and thrown into excruciating pain.
He commenced a damages lawsuit alleging that his employer should have used a safe commercially available product designed specifically for the task, not offcuts with razor-sharp edges. Less persuasive were the further allegations that he ought to have been instructed in a safe method to descend a ladder and not to leave sharp edges exposed, of tools and materials in use.
In its defence, WorkCover said that the only obligation on the part of the employer was to take reasonable care.
The court agreed.
“There is no obligation to safeguard an employee from all perils. It is not a duty to avoid all risks by all reasonably affordable means. A duty of care is not a general duty to protect careless people from the consequences of their own carelessness”.
In the contest of experts, it was the view of the defendant’s safety consultant that was preferred in that the method used for the Frangipani condominiums was deemed both reasonable and appropriate.
“The plaintiff always knew he was handling a sharp object. He created the hazard himself by placing an object which she knew to be dangerously sharp with the sharp edge exposed on the toolbox close to the ladder he was using. The plaintiff conceded that he knew of the problem and that it was dangerous.
He knew where the sharp object was before he descended a ladder and knew it was in a position which would be close to the point at which he would eventually step off”. In the circumstances, the court was of the view that the plaintiff had not established that the employer had breached its duty.
“It was not a difficult task, the plaintiff knew how to do the task and the injury came about through the actions of the plaintiff”. The court fulfilled the exercise of determining the plaintiff’s theoretical loss which totalled out at$295k based on a 28% impairment of upper extremity function attested to by orthopaedic surgeon Paul Robinson.
WorkCover’s Facebook attack – uplifting activity pics to demonstrate “a lack of self-consciousness about scars” and “sufficient strength in his left arm” – proved successful in part.
Although the post of a photo showing Mitchell “picking up his girlfriend and swinging her around” did not faze Dr Robinson in sticking to his assessment, the court thought the picture “inconsistent with the plaintiff experiencing immediate pain when lifting and manipulating a live weight of about 60 kg”, a finding that was largely immaterial to the calculation of the theoretical damages anyway.
Note: This ruling was reversed by the Court of Appeal in September 2013.