In the recent decision of Boon v Summs of Qld Pty Ltd the Queensland Court of Appeal overturned the primary judgment against an appellant who had three fingers of his hand severed whilst on a lunch break. The injury was caused by the appellant’s hand coming into contact with an extended blade of a knife held by a co-worker employed by the respondent.
In the primary judgment, the Supreme Court held that the conduct of the co-worker using the knife to peel an orange was not reasonably foreseeable to the employer as involving a significant risk of injury to others on site. As the employee’s actions were not negligent, the employer was not vicariously liable for the appellant’s injury.
However, the Court of Appeal considered the primary judge erred in identifying the precise risk. It held that the conduct of the employee, in rising from a crouched position holding a long bladed knife exposing passers-by to injury, was the identifiable risk. The Court of Appeal concluded that there was a foreseeable risk that the appellant may have been struck by the knife as he passed and the employee ought to have known of the risk which was not an insignificant one. In essence, it was the careless waving around of the knife afterwards which was the critical negligence, not the innocuous pealing of the orange. It was held the employee acted negligently causing the appellant’s injury. The employer was vicariously liable for the negligence of its employee.