Employee responsible for own safety. 

July 2015

Should an employer be found liable for a risk of which they had no knowledge and could not reasonably have known of?

This was the question in Drew v State of New South Wales [2015] NSWCA 159 decided in June 2015, by three NSW  Supreme Court judges who dismissed a school cleaner's appeal against a finding that she is not entitled to damages after tripping over a box on a classroom floor.

In November 2005, the plaintiff, Mrs Drew, was an employee of Menzies Property Services Pty Ltd and sustained knee injuries while working at Campbelltown School. She sued both the occupier of the premises, the State of New South Wales and her employer Menzies. 

Before she tripped over, she had walked through the same carpeted classroom, which was at the time being used to store items for a school fete, on six occasions.  

For the first few times, when she was either carrying a garbage bag or a vacuum cleaner on her back, she pushed a heavy box lying on the floor slightly to one side to make a passage. On the last two times, she carried a mop and bucket. It was on the very last time she tripped on the same box, injuring her knees. 

The primary judge heard Mrs Drew give evidence in 2014, more than eight years after the accident. His Honour accepted her as "credible but not always reliable", having regard to the passage of time. With respect to her claim against her employer, it was also held that an employer could and should check whether floors, doors or rooms needed repair. However, the box was not a fixture and it had not been in the classroom the previous day, so the employer could not have been aware of its existence. His Honour recognised the employer's non-delegable duty of care but by the same token found that cleaning a classroom in a school was not a dangerous activity and that Mrs Drew "misjudged where the box was and caused her own injury." 

Since the employer was unaware of the presence of the box in the classroom, the claim against it was rejected and Mrs Drew was considered to have not taken reasonable care for her safety as she could and she had done on numerous earlier occasions, have walked around the box and avoided the accident. 

The trial judge quoted O'Connor v Commissioner of Government Transport [1954] 100 CLR 225 saying: "It seems fanciful ... to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide, and ordinarily treated as a matter for the man doing the job." In her claim against the occupier, Mrs Drew argued that, as the occupier of the school, it should have ensured the box was placed to the side of the room or should have marked out an area where she could have walked without encountering any obstacles. 

His Honour rejected this argument and held that the occupier did not have to take these precautions as they would not have avoided the risk of injury, Mrs Drew had simply failed to walk past an obvious obstacle in the middle of the room, which she had managed to avoid on five prior occasions and had, as a result, not taken appropriate care for her own safety. 

The Court of Appeal dismissed the appeal and agreed with the primary judge's reasons for finding against Mrs Drew. It also confirmed that an employer will not usually be found liable for a risk of which it had no knowledge (and could not reasonably have known of) and that an occupier or employer is generally entitled to expect that people entering premises will exercise reasonable care for their own safety, especially when there is an obvious risk of harm.