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Written by Peter Carter

July 8, 2021

A suburban office worker has argued for substantial damages in a case filed against her employer for an ankle injury sustained in a fall when rushing to answer an incoming call.

Daina Michel – an office manager for cleaning company Broadlex Services – was required to answer incoming calls on the landline phone maintained at her reception desk in addition to managing the front and rear storage rooms and other duties that took her away from the desk.

In January 2015, when Daina was in the back storeroom of the Fyshwick premises in Canberra organising the uniform cupboard in the storeroom, the phone rang in.

As always, she ‘rushed’ to answer it but this time – as she got past her chair and leaned over the desk awkwardly to pick up the phone – her ankle rolled causing serious injury.

She sued her employer in the A.C.T. Magistrates Court alleging her exposure to “a risk of injury when moving from some other place to pick up her phone” and “that a reasonable employer would have taken the precaution of providing her a cordless headset”.

Daina had on two occasions requested such a device to monitor calls while simultaneously performing her away-from-desk duties. Her request was repeatedly denied by branch manager Mike Todoroski on the grounds it would not be approved by the head office because they “weren’t getting enough calls to warrant a headset”.

Magistrate Peter Morrison accepted that answering the phone was an important part of Daina’s role and that she had been reprimanded for not answering calls which if unanswered were diverted to head office in Sydney.

Broadlex defended by asserting that although the risk of injury to Ms Michel in answering the phone was foreseeable, it was “insignificant”, and that a reasonable employer would not have taken the precautions Daina contended for.

The provisions of the Civil Law (Wrongs) Act (ACT) relied on by the employer to deny liability are identical to those in ss 9 (1)(b) & (c) of Queensland’s Civil Liability Act.

Important to the employer’s argument was that the office averaged just 5 incoming calls per day.

Noting the number of incoming calls being low, his Honour directed his attention to the frequency of the “overlap” of incoming calls while away from her desk and decided the instances of having to rush back were “not frequent but were not uncommon”.

On the first issue of contention, his Honour found in Daina’s favour in deciding that “though the threshold of the risk of harm to Ms Michel was not great, on balance, it was not so low  as to be properly described as insignificant”.

As to the second issue he accepted the employer’s argument that evidence as to the cost of such a headset was “limited” but ruled “it is common knowledge in the current age that such commonplace electronic communication items are inexpensive”.

Daina had brought the need for the equipment to her manager’s attention and her request was turned down despite knowledge of the circumstances giving rise to the risk of such injury from moving quickly around the office ‘on a reasonably frequent basis.

“A reasonable person in the defendant’s position would have taken the precaution of providing a headset to enable her to answer the phone while away from her usual desk at reception. The burden on the employer of taking the precaution identified was minimal”.

But as to causation, the injury had occurred as she “was leaning around and in an awkward position picking up the phone” and not while “rushing to the phone”.

Broadlex insisted – in a submission based on the ACT equivalent of s 11 (1)(a) of Queensland’s Civil Liability Act – that any negligence on its part could thus not have been “a necessary condition of the occurrence of the harm” Daina sustained.

She could after all, just as easily injured herself by reaching over or around the chair to pick up a pen or to do something on a computer or to pick up a piece of paper.

Not so, ruled the court.

Having to quickly navigate past the chair and lean in and around was “integrally connected” to the rushing to answer the phone, which would have been avoided by the provision of a wireless headset.

The court ultimately awarded judgement for the plaintiff in the amount of the agreed damages, $119k.

Michel v Broadlex Services Pty Ltd [2020] ACTMC 27, 11 December 2020

Categories: office worker injury , Adequate System Of Work

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