Which case won?

casea
The case for the employee
  • The workstation provided to me by my employer forced me to use my arms in a twisted and awkward posture. This and the repetitive nature of my work led to my injuries.
  • The injuries I suffered after years of working for the employer were reasonably foreseeable by my employer.
  • My employer, acting reasonably, should have provided me with proper training on how to use the work system in a relaxed and correct manner, so as to reduce the risk of injury, rather than simply making suggestions about how to use the equipment.
  • My employer, acting reasonably, should also have properly supervised and monitored my use of the work system to ensure that correct behaviours were being followed.
  • The court should find that my employer was negligent, because it did not ensure that I used the equipment in a way that would reduce the risk of injury.
caseb
The case for the employer
  • We told the employee to adopt a relaxed posture when using the workplace system.
  • We told her to sit in the most comfortable way when using the equipment.
  • We told her to move the keyboard to a higher position, so that she would not be leaning down to the right.
  • It is not our fault that the employee used the equipment in a way that led to her injuries, since we told her not to have the keyboard below elbow height, but she ignored us and kept positioning it in this position.
  • The court should find that we were not negligent, because we told her how to use the equipment to reduce the risk of injury.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
a56%
b44%

Expert commentary on the court's decision

Grant AveryDirector
“Simply telling an employee how to do something was not enough. The employer should
have provided thorough training and supervision to ensure the instructions were followed and the risk of injury was mitigated.”
Successive courts reach different conclusions regarding employer’s negligence

The employee, Mrs Abalos, initially won at trial in 1987, when the court found that the employer, Australia Post, had acted negligently by not ensuring that she used a postal coding machine in a way that would minimise her risk of injury.

All the expert witnesses agreed that it was the excessive use of the relevant muscles which led to the employee’s injuries. The trial judge found that the “tennis elbow” in the employee’s right arm was caused by her work for the employer.

The judge concluded that the employee’s injuries were caused by the low position of the keyboard on her right-hand side and the failure of the employer to provide adequate training and supervision to ensure that workers did not adopt a bad posture while using the equipment.

The “reasonable man test” and what employers need to consider

The “reasonable man test” is a legal principle used to establish whether or not a breach of a duty of care exists. If a breach does exist, it is then up to the court to consider to how a reasonable man might negate that risk.

If the employer had acted reasonably, it would have considered:

• The magnitude of the risk;
• The degree of the probability of its occurrence;
• The expense, difficulty or inconvenience of taking alleviating action; and
• Any other conflicting responsibilities they may have.

The third of these points was the most significant consideration for Australia Post.

Simply telling an employee how to do something was not enough. The employer should have provided thorough training and supervision to ensure the instructions were followed and the risk of injury was mitigated.

Court of Appeal of the Supreme Court – employee loses her case

After this determination, the case then made its way to the Court of Appeal of the Supreme Court, where Australia Post appealed the original decision and won.

The full bench held that the trial judge had “mixed up” matters of causation and foreseeability. The Court of Appeal held that the system of work itself caused the injury and that there “…was no causal link between the plaintiff’s injury and the lack of training or supervision.”

Note that the employee was not asserting that Australia Post had acted negligently by providing a work system which could have been designed better. This was not a question for the court to consider.

The question was only whether Australia Post was negligent because it did not supervise Mrs Abalos to make sure she used the work system in a way that would significantly reduce her risk of injury.

High Court overturns decision of Court of Appeal

In the case Abalos v Australian Postal Commission [1990] HCA 47, the High Court overturned the Court of Appeal’s decision. According to the High Court:

The question on the foreseeability issue was not whether the omission to provide proper supervision gave rise to a foreseeable risk of injury. It was whether the conduct of the defendant in requiring the plaintiff to work in this system gave rise to a reasonably foreseeable risk of injury.

The High Court determined that by requiring Mrs Abalos to work in its system, Australia Post did indeed create a reasonably foreseeable risk of injury. In those circumstances, the question to be determined was whether the injury suffered by Mrs Abalos was reasonably avoidable and whether in all the circumstances the failure by Australia Post to eliminate the risk was unreasonable.

The court stated: “…the system gave rise to a reasonably foreseeable risk of injury. That risk could have been avoided by redesigning the system. But… it could also have been avoided by proper supervision.”

Important lesson for employers – the buck stops with you

The lesson to be learnt from this case is a very important one for all employers.

The Abalos case made it clear that in providing a safe system of work, it is not enough for an employer to simply provide employees with appropriate equipment and safety training. The onus on the employer extends further; it must also provide the supervision necessary to ensure that the safe behaviour is enforced.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information.
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