Would you consider that peeling an orange could cause injury?
Would you consider that peeling an orange in a lunch break could give rise to a foreseeable risk of injury?
Well their Honours, Justices Gotterson, Applegarth and Holmes found this to be the case when handing down their decision in the case of Joshua Boon Summs of Qld Pty Ltd  QSC 38.
Their Honours overturned the decision of the trial judge at first instance who had dismissed the Plaintiff’s claim, to find for the Plaintiff/Appellant and award him increased damages of around $215,000.
Co-worker knifes Plaintiff whilst peeling an orange on construction site
The Plaintiff was employed as a labourer on a construction site. During the lunch break, the Plaintiff went to retrieve an item from his car and as he was returning to the construction area, he was knifed in the left hand whilst passing a co-worker, resulting in a deep laceration to 3 fingers of his left hand and causing nerve, tendon and artery damage.
The incident occurred because the co-worker the Plaintiff passed by had been peeling an orange for his lunch with a Leatherman knife, and as the Plaintiff went to pass him, the co-worker stood up suddenly from a crouched position with the long sharp unsheathed blade exposed to those in his near vicinity.
The injury the Plaintiff sustained to his hand from the incident was severe, requiring three separate surgeries, including surgery to remove a neuroma he had developed in the hand.
Evidence given that injury impaired living, social & employment activities, caused depression
The Plaintiff gave evidence that the injury not only impaired his everyday living, domestic, social and employment activities, but the ongoing impairment he suffered as a consequence of the hand injury had resulted in him developing severe depression.
At first instance, the matter was heard before her Honour Justice Ann Lyons in the Supreme Court at Brisbane.
Her Honour Justice Lyons considered that the case of Mr Boon should fail, as she did not accept the co-worker with the Leatherman’s knife had acted negligently in his actions, nor had the employer in those circumstances.
Encroached on the co-worker’s personal space
Justice Lyons considered that the peeling of an orange with a knife could not be considered to give rise to a foreseeable risk of injury, as the risk of injury posed was so minimal, it posed no risk at all.
She also found that it was in fact the Plaintiff who had placed himself in harms way as he was better placed to view the actions of the co-worker as he was approaching him, and he should have seen him rising from a crouched position on such approach.
She also considered that the Plaintiff must have encroached on the co-worker’s personal space for the incident to have occurred.
Court of Appeal considers co-worker negligent and Plaintiff should succeed
Their Honours Justice Gotterson, Holmes and Applegarth all disagreed with the decision of Justice Lyons at first instance in her assessment of liability.
They considered that the actions of the co-worker in his handling of the unsheathed knife were in fact negligent and did pose a risk of injury to the Plaintiff as a co-worker on the construction site.
Their Honours believed that the determination of the Judge at first instance was fundamentally flawed because she had based it on an incorrect consideration of what the actual risk of injury arose from.
Co-worker with the Leatherman’s knife had been negligent
They pointed out that it was not the action of peeling an orange with a knife that gave rise to the risk of injury to the Plaintiff, but it was in fact the action of the co-worker in standing from his crouching position with the long bladed unsheathed knife exposed to those in his vicinity.
They considered the Judge at first instance had focussed her attention on the action of peeling the orange in making her determination, when in fact she should have been focussing on the action following this, when the co-worker rose with the unsheathed and exposed knife blade.
Their Honours considered that the co-worker with the Leatherman’s knife had been negligent in firstly failing to check for persons in his near vicinity as he went to rise from his crouching position whilst holding the long bladed and very sharp knife, but also in failing to sheath the knife or place it in an unexposed position when arising from his crouching stance.
Appeal Court finds employer negligent for lack of proper instruction, training and supervision
The Appeal Court also held that the Defendant employer was negligent, not only vicariously for the negligent actions of its worker, the co-worker wielding the Leatherman’s knife, but also in its own right.
The Court held that the employer failed to put into place proper work systems for the safe use and handling of knives in the workplace, not only in the course of undertaking work duties, but also during work breaks on the construction site.
Employer should have provided proper instruction to its workers regarding knives
The Court considered that the employer should have provided proper instruction to its workers to ensure knives were sheathed when not in use on the construction site, and training in how to handle knives safely so as not to expose others in their vicinity to a risk of injury.
The Court of Appeal also disagreed with the Judge at first instance in their finding that the risk of injury posed by the co-worker’s handling of the knife was significant and reasonably foreseeable.
Plaintiff did not contribute to his injury by encroaching on co-workers’ personal space
Justices Gotterson, Applegarth and Holmes also considered the findings of Her Honour Justice Lyons in respect to the Plaintiff and his contribution to the injury occurring.
Their Honours did not agree with her finding that the Plaintiff had been better placed in his view of the co-workers movements or his handling of the knife.
They found that there was in fact no evidence provided at the trial to prove the Plaintiff had seen the co-worker prior to his being knifed in the hand, or had witnessed the co-worker’s intention to stand up from his crouching position or that he was wielding a knife, prior to the knifing.
Court of Appeal considered that it was in fact the co-worker
Their Honours found that this was a presumption raised by the trial Judge at first instance of which they did not agree.
The Court of Appeal considered that it was in fact the co-worker with the knife that should have checked no one was in his vicinity before standing from his crouched position with the knife in his hand exposed to passers by.
Court did not agree with any finding of encroachment on personal space
Similarly, the Court did not agree with any finding that the Plaintiff had overly encroached on the personal space of the co-worker as he was passing him, causing or contributing to the incident occurring, and their Honours considered that there was no evidence submitted at trial to sufficiently substantiate such a finding.
They also did not accept that it was necessary for the Plaintiff to have unreasonably encroached on the co-worker for him to have been knifed as he was, given the length of the 6 inch blade and the movements of the co-worker as he was rising from his crouched position.
Damages to be awarded to the Plaintiff
Upon determining liability in favour of the Plaintiff, the Court of Appeal then turned its mind to quantum and the damages to be awarded.
Their Honours did not alter the damages awarded at first instance, save for a moderate increase in past economic loss of around $20,000. The Court of Appeal considered that the judge at first instance had reduced the Plaintiff’s past loss of income too severely on the basis of his past work history and earnings (the Plaintiff had a varied earnings history pre-injury).
The Plaintiff argued for an increase in his award for future economic loss from the $50,000 awarded at first instance, to $100,000, but the Court of Appeal agreed with Justice Lyons’ assessment in this regard, and the award for future economic loss was not altered.
The Court considered that the global award was appropriate
The Court considered that the global award was appropriate given the Plaintiff had conceded he had returned to full time work, earning greater weekly income than previously, and his limitations from his hand injury were not significantly impeding his earning capacity.
The global award of $50,000 for future economic loss was made in recognising the Plaintiff may find some prejudice in employment because of his injury, and he may suffer aggravations of his injury in the future, including his psychiatric injury.
Dominant injury assessed as a “moderate hand injury”
In assessing damages for pain and suffering and loss of amenities of life, the Court of Appeal agreed with the award of the trial Judge, who assessed the dominant injury as a “moderate hand injury” under the schedule of injuries with an ISV of 12, but increased the assessment to the high range at 15 to take into account his psychiatric injury sustained from the incident.
Her Honour did not allow an additional 25% uplift to the ISV, as she did not consider it had been proven by the Plaintiff that this was warranted.
More information about what the Courts consider when determining negligence and quantum
If you are interested in the legislation that governs the determination of whether an employer has been negligent in a work injury claim, go to Chapter 5, Part 8 of the Workers’ Compensation and Rehabilitation Act 2003, where the legislature has tried to reduce the scope of such claims.
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