When an injury occurs in the workplace, it is possible under both legislative and common law principles for employers to argue that the employee contributed to their own injury by being negligent. Contributory negligence can be established if an employee undertook an activity involving obvious risk or failed to take into account an obvious risk.

This begs the question, what risks are obvious risks?

Two recent cases, both involving significant compensation payments, highlight the high threshold used by courts in determining whether or not a risk was obvious.

Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93

In May this year, the NSW Court of Appeal ordered ANZ Bank to pay compensation to an employee who tripped on office cabling under her desk. The employee fell and injured her knee after her foot got caught on a cable when she stood up from her chair.

The Bank argued that the risk was obvious. It would have been obvious to the employee that the telephone and computer at her desk had attached cables and she should have kept her feet clear of them. On this basis the Bank claimed contributory negligence.

However, the threshold for what constituted an obvious risk in this case was very high and the Court was only willing to concede a small degree of negligence by the employee. While the risk may have been considered obvious to some, this didn’t prevent the Bank from having to pay compensation to the tune of AU$600,000.

Garth v BSE Cairns Slipways Pty Ltd [2015] QDC 343 A similar decision was reported on 16 May 2016.

In this case, an employee at the end of his night shift switched off the lights at his workplace and on his way out tripped on a metal box causing him to lose balance and fall, breaking his wrist.

The employer argued that tripping was an obvious risk given the employee failed to watch where he was going, didn’t use the torch properly and did not use the designated thoroughfare.

While the Court was happy to accept that a reasonable person could perceive that walking into an obstacle in the dark was an obvious risk, in this particular case, the “inattention bred of familiarity and repetition” had to be considered. When taking into account the repetitive nature of work, the employee’s familiarity with the area and the poor lighting, tripping on the metal box did not meet the threshold of obvious.

This resulted in the employee being awarded AU$320,000 in compensation.