JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALLIED PUMPS PTY LTD -v- HOOKER [2020] WASCA 72
CORAM: BUSS P
MURPHY JA
VAUGHAN JA
HEARD: 20 JANUARY 2020
DELIVERED : 5 MAY 2020
FILE NO/S: CACV 102 of 2018
BETWEEN: ALLIED PUMPS PTY LTD
Appellant
AND
MICHAEL JAMES HOOKER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: McCANN DCJ
Citation: HOOKER -v- ALLIED PUMPS PTY LTD [No 2] [2018] WADC 129
File Number : CIV 1141 of 2014
Catchwords:
Torts - Negligence - Common law - Workplace injury - Gas detector unit alarm accidentally activated in an office setting - Employee startled and suffered musculo‑skeletal injuries - Whether primary judge erred in finding that the employer had prior knowledge that the unit was faulty and that the fault was such that the alarm would sound when switched on - Whether the primary judge erred in finding that the risk of musculo‑skeletal injury was foreseeable - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Cross-appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | J R B Ley SC & D R Clyne |
| Respondent | : | M D Cuerden SC & T J Hammond |
Solicitors:
| Appellant | : | SRB Legal |
| Respondent | : | Slater & Gordon |
Case(s) referred to in decision(s):
Apostolic Church Australia Limited v Dixon [2018] WASCA 146
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Best Bar Pty Ltd v Warn [2019] WASCA 15
Carrier Airconditioning Pty Ltd v Duzevich [2001] WASCA 243
Chapman v Hearse (1961) 106 CLR 112
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Divjakoski v Boral Window Systems [2011] WASCA 134
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Hayward v George's Ltd [1966] VR 202
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
Hooker v Allied Pumps Pty Ltd [No 2] [2018] WADC 129
Jenkin v Dalrymple Shire Council [1993] QCA 142
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205
M R & R C Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
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- AGLC
- Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
- Case
- [2020] WASCA 72
- Decision Date
CaseChat Overview and Summary
The court was required to determine if the primary judge correctly found that the employer had prior knowledge of the defect in the gas detector unit and that the defect was such that the alarm would sound when switched on. Additionally, the court had to consider whether the primary judge was correct in finding that the risk of musculo-skeletal injury from the alarm going off was foreseeable. The case hinged on the facts of the case, particularly whether the employer knew or ought to have known about the defect in the gas detector unit and whether the risk of injury was reasonably foreseeable.
The court found that the primary judge was correct in determining that there was circumstantial evidence suggesting that someone in the employer's organisation had notice of the defect prior to the accident. The judge also found that the risk of musculo-skeletal injury from the alarm going off unexpectedly was reasonably foreseeable. The court reasoned that it was reasonably foreseeable that the faulty gas detector unit could be switched on by service personnel, and that an employee working in the Operations Room could react to the sounding of the alarm with a startle response, which could involve musculo-skeletal injury.
The court's decision was based on the fact that the gas detector unit was in an office environment where it was not expected to activate, and the alarm emitted an extremely loud and uncomfortable noise. The court found that the startle response could differ in a person exposed to the alarm in a benign office context compared to a sudden life-threatening emergency. As a result, the court upheld the primary judge's findings and concluded that the employer was liable for the injuries sustained by Mr. Hooker.
In conclusion, the court found in favour of Mr. Hooker and ordered Allied Pumps Pty Ltd to compensate him for the injuries he sustained due to the unexpected activation of the gas detector unit alarm. The court's decision was based on the fact that the employer had prior knowledge of the defect in the gas detector unit, and the risk of musculo-skeletal injury from the alarm going off unexpectedly was reasonably foreseeable.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As to that last‑mentioned finding, the judge said:[126]In cross‑examination [Mr Powell] was asked about a report he wrote about the accident on or about 14 May 2013 ... I quote the following:'Michael Hooker incident - 12 March 2012Open office shared by operation HSC and service personnel at timeDevice - normal. MSA Altair 4X Gas detector, according to the service manager [ie Mr Slack], the device was having problems at the time, the alarm was going off every time it was turned on. It was replaced under warranty on 13 March 2013 (sic 2012) (documentation from supplier confirms this).' (original emphasis)[126] Primary decision [102]. The judge continued:[127]Mr Powell agreed … that the passage I have emphasised refers to information given to him by Mr Slack, but he cannot recall when that occurred. Mr Slack did not specifically tell him when the alarm had been going off or when he found out about that either. I infer that it is possible that Mr Slack was speaking after the accident itself, and referencing the accident, bearing in mind the evidence about the alarm sounding two, three or more times, which would predicate it being switched on and off multiple times. But the use of the words 'every time' would suggest that Mr Slack was referring to multiple occasions, and not just the occasion when the accident occurred, some of which would necessarily have been prior to the accident after which the unit was immediately decommissioned. This provides circumstantial evidence that Mr Slack or someone else in the defendant's organisation had notice of the defect prior to the accident. (emphasis added)[127] Primary decision [103]. As to Mr Starcevich, the judge was not satisfied that he knew that the unit was defective when he first turned it on.[128] The judge found, in effect, that there was a foreseeable risk of musculo‑skeletal injury that an employee working in the Operations Room faced from the alarm of the faulty gas detector unit going off unexpectedly.[129][129] Primary decision [120],[123]. The judge at [120] referred to 'musculo‑skeletal injury of the whiplash kind', but it is doubtful that his Honour intended, by the use of the word 'whiplash', to add anything to the character of the injury, the risk of which he found to be foreseeable. At [123], he referred to 'some form of musculo‑skeletal injury'. In that regard, the judge found, in effect, that:1.It was reasonably foreseeable that the faulty gas detector unit could be switched on by service people who attended the Operations Room, for example, to check that it was charged and to carry out a daily 'bump test'.[130]2.It was reasonably foreseeable that (1) an employee working in the Operations Room could react to the sounding of the alarm with a startle response, and (2) such a startle response could involve, or be associated with, musculo‑skeletal injury, because:(a)Mr Hooker and the others who worked there had their backs to the central table and to the gas detector unit on the table.[131](b)The alarm emitted an extremely loud and uncomfortable noise, which was incommensurable with other unexpected noises such as the sounds of falling objects and slamming objects.[132](c)The alarm sound was completely alien to the office environment, was extremely unexpected and was not of a kind that might be swiftly rationalised by the mind of a hearer.[133](d)Whilst the Operations Room was not a place of silent and contemplative work, it was nevertheless not a place in which anyone would expect an alarm to activate.[134] (e)It was not to the point that the alarm was in fact designed to startle workers. That was because it was designed to do so in a specific context, namely a sudden life‑threatening emergency. In those circumstances the wearer was supposed to get a fright and immediately understand its significance, and the risk of resultant injury was justified compared to the risk of asphyxiation. On the other hand, the startle response might reasonably be expected to differ in a person who was exposed to the alarm in a benign office context (as occurred here).[135]