An employer can breach their duty of care by allowing an employee to repetitively turn their head when operating machinery

An employer can breach their duty of care by allowing an employee to repetitively turn their head when operating machinery

24 May 2022 Authored by: Gemma Sharp & Julia Braddick   |   Topics: Workplace relations and safety

In the New South Wales District Court, Judge Russell dismissed Mr Cavanagh’s claim for injuries arising from his employment with Manning Valley Race Club. Mr Cavanagh claimed that he had suffered a serious cervical spine and right shoulder injury while working as a course manager for Manning Valley Race Club at the Bushland Drive Racecourse in Taree. Mr Cavanagh alleged that he sustained his injuries between June 1999 and February 2011 due to the nature and condition of his work, which resulted in an impairment of 27% of his spine.

Not all personal injuries sustained by employees at the workplace will result in the employer being liable for negligence. While it was agreed that Mr Cavanagh was owed a duty of care by his employer, Mr Cavanagh was required to establish that his employer had breached the duty . An employer does not owe an absolute duty to keep an employer free from injury.

One of Mr Cavanagh’s duties was to operate a ‘leveller’ on the back of tractor, which smooths the sand on the track making it safe for use. In order to complete this task, Mr Cavanagh needed to turn his head and upper body frequently in order to see the leveller from his position on the tractor. Mr Cavanagh  claimed that this was how he obtained his injury.

An occupational therapist gave the opinion that the injury was foreseeable and could have been prevented by the employer taking reasonable steps. This was based on the assumption that Mr Cavanagh was turning his head every few seconds. However, during cross examination in the District Court, Mr Cavanagh provided conflicting testimony regarding the frequency of these turns, and the degree to which he needed to turn his body.

Judge Russell found that there was no evidence that turning in such a manner once every minute would lead to a foreseeable risk of musculoskeletal injury, and as a result, there was no duty upon the employer to take precautions against that risk.

Insufficient reasons

The Court of Appeal found that Judge Russell did not make a ruling regarding the amount of times the Mr Cavanagh turned his head each minute. Rather, following the Mr Cavanagh’s conflicting testimony, Judge Russell operated under the assumption this only occurred once per minute, which was described as the ‘upper limit’ of Mr Cavanagh’s estimations.

While it is possible to decide a case without making a finding as to the primary facts in the dispute, in this case the frequency in which Mr Cavanagh turned his head was a significant part of the dispute. The primary judgement failed to consider Mr Cavanagh’s testimony that his ‘attention was predominantly directed to the rear’. Additionally, there was no reasoning for why the testimony (explaining that Mr Cavanagh turned his head more frequently than once a minute) was rejected in favour of the testimony that was least favourable to his case.

Accordingly, judgement for Manning Valley Race Club could not be sustained because the judgement did not adequately consider and engage with the principal issue of the trial.

Retrial unnecessary

Manning Valley Race Club claimed a retrial was warranted. This was rejected by the Court of Appeal as the submissions were general in nature stating that the Court would have to draw conclusions as to what was and wasn’t said in the primary trial, which would be inappropriate due to information missing from the transcript.

It was accepted by the Court of Appeal that Mr Cavanagh’s role entailed repeated sustained twisting of his neck.. It is plainly foreseeable that a person who operates a machine in this manner may aggravate or exacerbate a cervical spine condition. Further, there was the potential for this harm to be serious and incapacitating.

The Court of Appeal highlighted that if the primary judge had read the occupational therapist’s report fairly, it would have been found that the risk of injury was foreseeable due to the repetitive nature of the movement, not due to the precise frequency of the movement.

Duty of employer

The Court held that it was not reasonable for Manning Valley Race Club to take no steps to prevent harm in these circumstances. There were simple precautions that could have been taken to prevent a person having to repeatedly look behind them to operate the leveller. This could have included the installation of a mirror, swivel seat or rear-view camera.

Given that there was a foreseeable risk of harm, and Manning Valley Race Club did not take reasonable steps to prevent harm to Mr Cavanagh, it was found that the employer had breached their duty of care. The Court allowed the appeal and set the original judgement and orders aside, in favour of a finding for Mr Cavanagh.

Conclusion

This case reaffirms the importance of employers taking reasonable steps to prevent reasonably foreseeable harm of employees and provides a specific example of a reasonable step that must be taken by an employer.

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