Contributory negligence tends to be one of those polarising aspects of personal injuries law. Many community members (particularly employers) are surprised by the low deductions made by the courts for contributory negligence. A recent Victorian case highlights this disparity.

In Aycicek v Flowline Industries Pty Ltd [2019] VSCA 37, the Victorian Court of Appeal rejected the finding of a 12-member jury that an injured worker was 38% contributory negligent for a significant lower back injury he sustained over a period of time between 2005 and 2012.

Background

After a trial lasting some 11 days, the jury found that Flowline (the employer) was liable for Mr Aycicek’s lower back injury and his damages were assessed at $585,000. However, the jury found contributory negligence on the part of Mr Aycicek to the extent of 38%, thereby reducing the damages payable to $336,770.

Mr Aycicek appealed the finding of contributory negligence.

Key issues

The finding of contributory negligence particularly related to Mr Aycicek’s decision to lift a full crate of electrical components that weighed approximately 62 kg on 23 August 2015, which was considered to be a substantial cause of his injury. Flowtech argued that it should have been obvious to Mr Aycicek that the crate was very heavy, and beyond the imposed safe lifting limit of 20 kg. In submissions, Flowline’s counsel argued that ‘it is really like saying to a chef, “the frying pan might be hot”’.

Mr Aycicek accepted that he was aware of Flowline’s generic instruction not to lift crates more than

20 kg, having worked there for three years. However, he argued that:

  • he did not know the weight of the crate before lifting it and, to the contrary, thought it was safe to do so because he had seen ‘so many people’ lifting crates previously; and
  • even if he had known of its weight, insufficient trolleys and a lack of co-workers to assist him meant he had no practical choice but to lift the crate himself.

Decision on appeal

The Court of Appeal accepted Mr Aycicek’s argument and found that the jury’s finding of contributory negligence was unsustainable.

It held that, even if Mr Aycicek knew he was lifting a crate heavier than the imposed limit of 20 kg, the absence of proper enforcement of Flowline’s system or any reasonable alternatives meant Mr Aycicek’s conduct did not amount to negligence but, at most, was ‘mere inadvertence’.

At paragraph 61, it noted:

As to [Flowline’s] suggestions that [Mr Aycicek] could have weighed the crate before lifting it […], sought assistance from first aid representatives present in the workplace, or waited until the end of the shift to obtain assistance from another worker, at best these might be described as mere inadvertence, inattention or misjudgement. In personal injury, in the course of employment cases, the law has long recognised the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other hand. (emphasis added)

While all contributory negligence cases turn on their own facts, this case highlights the difficulty of establishing contributory in workplace accidents even where the assumed risk might have been thought to be fairly obvious. It highlights that, where the system of work is deficient (or a safe system is not enforced), a finding of contributory negligence will not readily be made.

There is no reason to think the ultimate outcome of this case would have been different if brought in Queensland. Although jury trials are not available for personal injury claims in Queensland, perhaps employers and insurers would prefer jury trials given the first instance decision here!