Blunt and to the point
SMYBB PTY LTD v Stephen Young: Blunt but to the point
By Dominic Cook and Belinda Zilavec, Wisewould Mahony Lawyers
The Victorian Court of Appeal recently set aside the verdict of the trial judge in Stephen Young v SMYBB PTY and entered a judgement in favour of the employer. The worker, who was injured in the course of his employment, alleged negligence, and breach of statutory duty on part of the employer but failed to produce evidence linking the breach to the injury. The decision provides a costly reminder to lawyers that in tort cases, proving foreseeability of risk does not go far enough as to prove liability. Causation is a important part of the puzzle.
A summary of the facts and decisions follows.
The worker was employed as a process worker at the employee’s wine packaging company where he worked with a machine that removed wine bottles from pallets. This included the use of a duck knife to cut plastic straps from the pallets of bottles before they were processed by the machine. Through use, the edge of the blade of the knife gradually blunted. When the cutting edge became blunt the worker would open the knife and rotate the blade to expose a new cutting edge. This process could be done three times, before needing to be replaced with a new blade.
During his shift on 6 April 2016, the worker noticed that the blade of his duck knife was not as sharp as it should be and on April 7, 2016, whilst using the duck knife to cut plastic wrapping, he suffered injuries to his right shoulder rotator cuff and injuries causing right elbow epicondylitis. At this point the knife had become very blunt, however, the worker did not inspect the condition of the blade during his shift, nor did he ask for a replacement blade.
The worker ceased employment shortly after the incident and underwent surgeries to his shoulder and elbow in 2017 and 2019. In October 2019 the worker issued proceedings against the employer for negligence and breach of statutory duty, namely, reg 1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007. The regulations provide that an employer must identify any task undertaken by an employee that involves hazardous manual handling, they must reduce or eliminate the risk of a musculoskeletal disorder developing as a result of the hazardous manual handling, and further review and revise the measures they have implemented to control the risk. Hazardous manual handling is defined by reg 1.1.5 of the Occupational Health and Safety Regulations 2007 as being repetitive or sustained application of force, awkward posture, or movement.
The worker asserted that the employer breached their obligations as they failed to provide adequate training as to how and when to rotate the blades, the employer should have provided easier access to replacement blades and the employer should have implemented a system of fixed rotations.
At first instance, the worker failed to prove negligence of the employer however succeeded in his claim for breach of statutory duty with the trial judge concluding that:
- the worker’s claim for breach of statutory duty was made out because the employer had breached reg 1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007 and the injury suffered by the worker was a musculoskeletal disorder that was caused by the intrinsic risks of the hazardous manual handling task in which he was engaged at the time of the incident.
The employer appealed against the finding, submitting that the trial judge erred in his reasons that, in an action for breach of a statutory duty imposed on the employer by reg 3.1.1, 3.1.2 and 3.1.3 Occupational Health and Safety Regulations 2007, the worker would be entitled to damages simply by proving that the employer breached its statutory duty and that the injury suffered satisfied the definition of musculoskeletal disorder. The worker conceded the trial judge had made an error on this point and the Court agreed. As always, in a breach of statutory duty claim, the worker has the burden of proving the casual connection between the breach and the injury suffered and the worker, in this case, had not presented any evidence in support. The worker should have called evidence to show how implementing a system of fixed rotations on a weekly or fortnightly basis would have reduced the risk of injury.
The Court further accepted the employer’s submissions in relation to the findings of breach rejecting the measures submitted by the worker. The Court found that:
- The worker knew what to do, and further training would not have made a difference;
- The worker did not show how implementing a system of fixed rotations would have removed or lessened the risk of injury; and
- Accepted the findings of the trial judge noting the evidence did not go far enough to show that a new blade was needed when the injury occurred, therefore the location of the new blades was irrelevant.
However, the worker sought to advance an alternate case against the employer during the appeal, submitting that the employer should not only have trained or instructed the worker to rotate or replace the blades as appropriate but to specifically warn him that a failure to do so could lead to personal injury. The Court was quick to dismiss the claim noting that this case was not run at trial and could not be run for the first time on appeal.
The case at trial had proceeded on the assumption that the use of a blunt duck knife had the potential to cause injury, and the Court found this did not go far enough to prove causation, nor could it go far enough to prove the worker was unaware of the risk of injury if he continued to use a blunt knife. Had the worker, and the Court stressed this point, ran a failure to warn case at trial as a claim to prove causation and presented evidence to support this claim, the worker may have very well succeeded at trial.
These are not new concepts for the law of torts however the decision serves as a costly reminder for lawyers.
