Coles Supermarket Australia Pty Ltd v Harris

(2018) 278 IR 219; [2018] ACTCA 25

ACT Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Breach of duty
4. › Standard of care
5. › Employer's duty to employee
6. › Precautions against risk of harm
7. › Whether safe use of device obvious to adult employee
8. › Whether probability of harm so low as to be determinative of breach
9. › Negligence calculus
10. › Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44
1. Tort
2. › Negligence
3. › Contributory negligence
4. › Employee's use of device provided by employer
5. › Whether employee knew or ought to have known of risk
6. › Whether risk of harm from method of use was obvious
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Failure of trial judge to make finding on material question
5. › Power of appellate court to determine factual question on evidence before trial judge

Quick Take

A numerically low rate of incidents involving workplace equipment, even if expressed as a tiny percentage of total uses, is not determinative of the question of breach under s 43(2) of the Civil Law (Wrongs) Act 2002 (ACT); the negligence calculus requires the probability to be weighed against other factors including the seriousness of harm and the burden of precautions. The fact that an employer has voluntarily assumed the burden of preparing training materials is relevant to demonstrate that the legal imposition of such a burden would not be unreasonably burdensome. The 'obviousness' of the safe use of a workplace device is a factual question to be assessed objectively in context, not by reference to expert ergonomic opinion.