Employer escapes liability for employee’s injury on appeal in New South Wales

In Scone Race Club Ltd v Cottom [2019] NSWCA 260, the New South Wales Court of Appeal has found that the Scone Race Club was not liable for an injury sustained by an employee while emptying a bin on race day.

Facts

Mr Cottom was employed as a waste management labourer by Scone Race Club.

Around the Club’s racecourse there was a large grassed area, sloping down towards the race track. Wheelie bins were located on the grassed area.

On 23 May 2008, the Scone Club Race Day, Mr Cottom went to empty an overflowing bin. When he attempted to lift the bin liner, he slipped on the wet ground around the bin (the result of squashed fruit) and sustained a severe injury.

The District Court’s decision

The District Court found that the Club had breached its duty of care to Mr Cottom.

It concluded that the Club should have placed the bins on concrete pads on the sloping lawns, reasoning that the concrete pads would have provided a level platform for an employee who was emptying the bin and eliminated the risk of the grass around the bin becoming slippery due to spilled food and drinks.

The Court of Appeal’s decision

The Club successfully appealed this decision.

The Court of Appeal was not satisfied that the Club had failed to take reasonable care by not installing concrete pads for the bins, given the following factors:

• The grassed area was not so steep as to present a hazard.
• There were no prior or subsequent similar incidents with workers slipping on the grass when emptying the bins.
• The installation of concrete pads was not industry practice at other country racecourses.
• Concrete pads would have introduced their own risks, posing a trip and slip hazard and being a harder surface than grass on which to fall.
• There was infrequent heavy use of the racecourse, such that there were approximately two occasions each year when it was necessary to place bins on the sloped areas.
• The installation of the concrete pads would incur some cost, even if modest.

Comment

The Court of Appeal’s decision highlights that, in order to establish breach of a duty of care, it is not as simple as the plaintiff identifying some measure that would have reduced the risk of injury.

The employer’s duty of care is to take reasonable care to avoid injury to its employees. The analysis of what was reasonable in the circumstances of a particular case involves weighing up various factors including the likelihood of an injury occurring and the burden of taking a particular precaution against the risk of injury.