The question of reasonable foreseeability of injury

It is a well-established principle in the law of negligence that a defendant should only have to take precautions against reasonably foreseeable risks to others. Reasonable foreseeability can be contrasted with risks that are “far fetched or fanciful”.

The 2013 Queensland Court of Appeal cases of Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 and Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 are useful reminders of the centrality of the concept of reasonable foreseeability of risk in negligence cases against employers.

Heywood, a first year apprentice, was working in the fit out of a high rise apartment building where sharp U-shaped framing made of steel had been attached to the concrete ceilings to facilitate the positioning and support of internal walls. Whilst working on the fifth floor, Heywood picked up a piece of the framing from the floor and placed in on his 110cm high toolbox. Later, when descending his ladder he swung left. The framing pierced his elbow, resulting in serious injury that required surgery.

The central issue at trial was whether the employer had breached its duty of care to Heywood by failing to provide him with instructions on how to handle the U-shaped framing.

The trial judge held that it was not his employer’s obligation to safeguard an employee from all perils, the risks associated with the framing were obvious and Heywood had caused his own injuries. The action was therefore dismissed.

On appeal, the Court of Appeal examined the nature and extent of the duty of care employers owe to provide a safe system of work for their employees.

In contrast to the approach taken by the trial judge, the Court observed that:

“It is not an answer to an allegation that an employer has breached its duty of care to establish that the risk of injury was obvious and known to the employee”. Observing that the workplace Heywood was working in was dangerous, the Court concluded that the risk to Heywood was in the circumstances reasonably foreseeable and held that the employer should have provided instructions concerning the framing.”

That Heywood had been given no training or warnings concerning the handling of dangerous objects and their placement meant that the employer had failed to guard against a reasonably foreseeable risk, and had therefore breached its duty of care to Heywood.

As a result, the Court declared that it would allow the appeal.

Larkin struck his right knee on the metal handle of a cupboard under a workbench on which the telephone he used for a personal call rested. The metal handles of the cupboard were rectangular shaped and protruded by nearly 4cm from the cupboard door. Larkin suffered soft tissue injury, complex regional pain syndrome and consequential psychological injuries. The central issue in this case was whether or not it was reasonable foreseeable that an employee would accidently strike one of the handles and be seriously injured.

The trial judge in the District Court held that the risk of injury was reasonably foreseeable and that the employer should have taken steps to eliminate the risk “without undue difficulty or expense”. As a result, the trial judge found for Larkin, and ordered $245,000 in damages with costs against the employer.

On appeal, the employer argued that the trial judge had failed to consider the magnitude of the injury that an employee would likely suffer as a result of a part of their body bumping into the handle.

Noting that similar handles were present on about 300 cupboards and drawers at the employer’s workplace and there had been no prior injuries as a result of the handles, the Court of Appeal considered the risk of any injury to be “particularly low”. The Court further found that the risk of serious injury was not reasonably foreseeable, and therefore the employer was not obliged to take remedial action in respect of the handles.

The Court held that the risk of the injury that Larkin sustained was not “reasonably foreseeable” and concluded that the employer had not been negligent. The Appeal was allowed with costs.

In both cases the Court of Appeal considered what would constitute a reasonably foreseeable risk on the one hand, and those risks which are deemed to be too far-fetched or fanciful to require preventative action on the part of an employer.

In Heywood, the risk of employees working in the high rise apartment building injuring themselves with the steel framing was reasonably foreseeable, and the employer therefore should have taken steps to guard against that risk, including providing appropriate training and instructions. In Larkin, the risk of serious injury caused by the cupboard handles under the workbench was too remote for the employer to take steps to prevent.

Another important aspect of these two cases is the fact that the magnitude of possible injury was an important factor when determining whether the risk was reasonably foreseeable. In Heywood, the injuries that could be caused by contact with the sharp steel framing could be very serious. In Larkin, the injury that an employee would suffer as a result of inadvertently striking the cupboard handle would normally be expected to only involve minor bruising. The seriousness of the injury that could result must be taken into account when evaluating whether the risk should be guarded against.

Central to the test for breach of duty is what a reasonable employer would reasonably foresee as being a risk that could occur. Factors that must be considered when a court determines whether the risk was reasonably foreseeable include the likelihood of injury, the cost of taking remedial action and the seriousness of the injury that is likely to be suffered if the risk eventuates. Once a reasonably foreseeable risk is identified by the employer, it must take reasonable steps to guard against the risk.

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