Hewyood v Commercial Electrical Pty Limited [2013] QSC 52

Introduction

The Plaintiff was employed as an apprentice electrician with the Defendant. He was installing electrical cabling in an apartment complex.

The Plaintiff was working with some U shape framing which had a sharp edge. He had left some of this framing on the top of a tool box. As he descended from a ladder his elbow came into contact with the framing and he punctured his elbow.

The Plaintiff’s submission on liability was that this was a clear case of a system which failed to make adequate provision for mere inattention or inadvertence on the part of a very inexperienced worker. There was, it was said, a failure to instruct and to supervise.

Specifically, the allegations of negligence were that there was a failure to instruct the Plaintiff to:-

  1. place the sharp end of the framework down so that the sharp edge was not protruding; and
  2. to check for hazards before stepping backwards off a ladder.

The Defence of course contended that its obligation was to take reasonable care and not protect the employee from all perils.

Findings

His Honour Justice Martin firstly referred to decisions in Hegarty v Queensland Ambulance Service (2007) QCA 366 and Lusk v Sapwell [2011] QCA 59 noting that the enquiry into breach must be prospective and not using “the prism of hindsight”.

His Honour found at paragraph 24:-

“the plaintiff always knew that he was handling a sharp object. He gave evidence that he knew the consequences of handling sharp objects and that care needed to be taken. As he cut the U shaped channel himself, there was no requirement for the employer to tell him it was sharp. So much was obvious from his own work. The plaintiff created the hazard himself by placing an object which he 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 ascended the ladder and he knew it was in a position which would be close to the point at which he would eventually step off the ladder after he descended it.”

His Honour then referred to Finn v. The Roman Catholic Church Corporation for the Diocese of Townsville (2005) 221 CLR 234 and confirmed that is not a employers’ obligation to safe guard an employee from all perils.

His Honour also referred to Rasic v Cruz [2001] NSWCA 66 where Fitzgerald AJA said:-

a duty of care is not a general duty to protect careless people from the consequence of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved”.

Ultimately His Honour said that the factors referred to above concerning the actions of the plaintiff and the knowledge he possessed at the time demonstrated that “it has not been established that the defendant breached its duty to the plaintiff. 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.”

Implications

The above case illustrates that an employer is not an insurer of the worker and some tasks cannot be made risk free and that even inexperienced workers will be expected to take care for their own safety.