The Facts
Woman commences employment for large organisation
In 1974 a woman secured an office job in a large Australian organisation. Her duties required her to perform typing work on a coding machine.
She was provided with a metal chair that had a padded seat, a backrest and a left-sided armrest, but not a right-sided armrest. The employee’s keyboard was positioned at lower than elbow height on her right-hand side, thereby causing the woman’s posture to bend to the right.
The employee had been trained to perform around 10,000 keystrokes per hour. She worked at her own speed and her job was very repetitive.
The employee had an option of moving the keyboard to a higher position and her employer had told her to do this, but she ignored her employer’s instructions and kept using the keyboard in a way which ultimately led to the injuries.
Employee diagnosed with tennis elbow and suffers intermittent pain
In late 1977 the woman was diagnosed with having lateral epicondylitis, also known as “tennis elbow”, in both of her arms. For a time, she also suffered from medial epicondylitis, or “golfer’s elbow”.
The woman suffered ongoing intermittent pain in both arms, with the pain being more pronounced in her right arm.
The woman sued her employer, claiming that it had been negligent by structuring her work in a way that exposed her to the risk of injury, which in fact eventuated.
Expert commentary on the court's decision
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 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.