The presence of metal cupboard handles beneath a collating desk created an obvious risk of a knee injury which his employer ought to have removed, according to 36 yr old call-centre worker Ian Larkin.
The Suncorp employee injured his right knee in April 2008 when it struck such a handle as he was winding up a private phone call. He sued Queensland’s largest bank and insurer, for injury compensation.
The court argument centred not on the shape of the handle, but on the setup of the workbench on which a phone, fax machine, printer, copier and filing trays were placed. Staff used the bench to operate such devices and to collate print jobs.
The absence of any overhang of the top of the bench and the only 50 mm gap between the bottom of the cupboard and the floor – insufficient to allow a worker’s feet to extend in – created the knee hazzard, so it was alleged.
The trial judge agreed, finding the employer had breached its duty of care. Suncorp had exposed Larkin to a risk of injury – so held the court – by failing to replace the handles with “recessed or lip-type handles”, a measure that could have been taken simply and at negligible expense.
An exasperated Suncorp appealed.
It contended the primary judge was wrong, to rule as irrelevant, evidence of no similar injuries – despite there being 300 cupboards in the call centre with similar handles – because the other handles were not at knee height.
The appeal judges agreed also finding highly persuasive, co-worker testimony – from the call centre corps’ Ms Bennett and Ms McGill – that they had worked at the same bench for several hours daily without ever having bumped their knee on the cupboard handles, nor had they heard of anyone else doing so.
The risk of injury posed by such handles as “slight”, they ruled and the risk “of serious injury was low”. The primary judge had erred by failing to consider how in the absence of any handle related injuries, a reasonable employer could have foreseen the risk of injury.
Even if a reasonable employer had foreseen such a risk, they could not have been expected to predict the handles constituted any higher risk than that of minor bruising. Suncorp’s appeal was allowed; there was no breach of its duty of care.
Larkin’s lower court $245k win of February 2013, was instantly snatched away.