Allied Pumps Pty Ltd v Hooker

[2020] WASCA 72

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

Phillis v Daly (1988) 15 NSWLR 65

Raimodo v State of South Australia (1979) 23 ALR 513

Richards v State of Victoria [1969] VR 136

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330

Smart v Power [2019] WASCA 106

Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51

Taylor v Fisher [2018] WASCA 126

The Wagon Mound [No 2] [1967] AC 617

Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234

Turner v The State of South Australia (1982) 56 ALJR 439

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

Webb v The State of South Australia (1982) 43 ALR 465

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

BUSS P & VAUGHAN JA:

Introduction

1. We have the benefit of having read Murphy JA's reasons for decision.  We adopt his Honour's description of the primary decision, the grounds of appeal and the parties' arguments.  We also agree with Murphy JA that ground 1 should be dismissed for the reasons that his Honour gives; and that, given the point is conceded, the cross‑appeal on the assessment of damages succeeds.  We further agree that the appeal should be dismissed.  However, we come to that conclusion by a different pathway.

2. Once ground 1 is dismissed the following issues arise:

   1.Whether, in terms of ground 2, the primary judge erred in law in finding that there was a reasonably foreseeable risk of injury - the primary judge having found that there was a reasonably foreseeable risk that the appellant, Mr Hooker, would 'suffer musculo-skeletal harm of the whiplash kind'.[1]

   2.Whether, in terms of the notice of contention, the primary judge's decision should be upheld on the basis that it was reasonably foreseeable that Mr Hooker or a person of the relevant class including Mr Hooker might suffer injury of some kind as a result of a startle response to the sound of the alarm if the gas detector was turned on.

   3.If foreseeability of risk of injury is concluded in Mr Hooker's favour in accordance with the notice of contention (rather than by dismissal of ground 2), whether, having regard to ground 3 and the other matters raised by the employer in argument, there was a breach of the duty of care owed by the respondent (the employer) to Mr Hooker.

   [1] Primary decision [120]. See also at [123].

3. Initially the employer abandoned ground 3.[2]  However, it was abandoned on the basis that ground 2 was unsuccessful.[3]  Later senior counsel for the employer clarified that ground 3 was relied on in answer to the notice of contention rather than in answer to the conclusions of the primary judge.[4]  After the appeal hearing, with leave, the employer filed an amended reply to the notice of contention.  The amended reply developed the employer's submission that there was no breach of duty where all that was reasonably foreseeable was a minor injury.  The employer argued that the primary judge ought to have found that it was unnecessary for it to take any action in response to the risk of injury occurring; and, had his Honour so found, the primary judge would also have found that the employer did not breach the duty of care it owed to Mr Hooker.[5]

   [2] Appeal ts 15.

   [3] Appeal ts 33 - 34.

   [4] Appeal ts 34.

   [5] Appellant's amended reply to notice of contention dated 23 January 2020 pars 9 - 11.

The applicable legal principles

1. The primary judge found that the employer owed a duty to its employees, including Mr Hooker, to take reasonable care to avoid exposing the employees to unnecessary risk of injury.[6]  That formulation was not challenged on appeal.  It was consistent with authority.[7]  The duty includes an obligation to take reasonable steps to provide a safe place of work.[8]

   [6] Primary decision [111].

   [7] Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, 25; Turner v The State of South Australia (1982) 56 ALJR 439, 840, 843; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 307 ‑ 308; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12]. The primary judge referred to M R & R C Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110 [42]. See also at [155] ‑ [157], [163].

   [8] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 680.

2. The duty is that of a reasonably prudent employer.[9]  The employer must take into account the possibility of thoughtlessness, inadvertence or carelessness by its employees.[10]  It is said that the standard of care is not a low one.[11]  However, as is elaborated upon below, the duty is not to safeguard a worker completely from all perils.[12]

   [9] Hamilton v Nuroof (WA) Pty Ltd (25); Bankstown Foundry Pty Ltd v Braistina (307 - 308).

   [10] Czatyrko v Edith Cowan University [12].

   [11] O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, 230.

   [12] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [19].

3. The parties accepted that the question of breach was governed by the applicable principles under the general law rather than the statutory provisions of the Civil Liability Act 2002 (WA). Both referred to Mason J's classic formulation in Wyong Shire Council v Shirt:[13]

   In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.

   [13] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47.

4. Mason J described a risk of injury as being foreseeable if it was 'not far‑fetched or fanciful'.  Thus a risk of injury which was remote, in the sense that it was extremely unlikely to occur, may nevertheless constitute a foreseeable risk.[14]

   [14] Wyong Shire Council v Shirt (48).

5. In assessing whether a risk of injury is foreseeable, it is sufficient if the kind of injury is foreseen as a possible consequence of particular conduct.  It is not necessary to be able to foresee the particular injury.  Nor is it necessary that the precise sequence of events leading to injury be foreseen.  In short, it is not necessary that an injury of any particular severity, or the particular mechanism of any such injury, be foreseeable.[15]

   [15] Best Bar Pty Ltd v Warn [2019] WASCA 15 [42] ‑ [43] (referring to Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 390 and Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51 [46]).

6. The general law test of foreseeability has been described as 'undemanding'.[16]  Whether a risk is reasonably foreseeable is determined objectively.[17]

   [16] See eg M R & R C Smith Pty Ltd v Wyatt [No 2] [42]; Taylor v Fisher [2018] WASCA 126 [34]; Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205 [54]; Best Bar Pty Ltd v Warn [40].

   [17] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70].

7. As the previous passage from Wyong Shire Council v Shirt makes plain, reasonable foreseeability of risk of injury is not the end of the inquiry in assessing whether there has been a breach of duty.  The existence of a foreseeable risk of injury does not in itself dispose of the question of breach.[18]  As the previously quoted passage from Mason J's judgment goes on to explain:[19]

   The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

   [18] Wyong Shire Council v Shirt (48).

   [19] Wyong Shire Council v Shirt (47 - 48).

8. In this respect foreseeability of the risk of injury and the likelihood of that risk occurring are two different things.[20]

   [20] Wyong Shire Council v Shirt (47).

9. A number of propositions may then be drawn from the judgment of Gummow J in Roads and Traffic Authority of NSW v Dederer.  First, in assessing a reasonable response to a risk one must first accurately identify the relevant risk (ie the 'actual risk') of injury faced.[21]  Second, the question of breach must be assessed prospectively and not retrospectively.[22]  Third, the response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention.[23]  Hence why it is that an employer's duty is not to safeguard a worker completely from all perils.  The necessary evaluation is one of 'a contextual and balanced assessment of the reasonable response to a foreseeable risk'.[24]

   [21] Roads and Traffic Authority of NSW v Dederer [18], [59].

   [22] Roads and Traffic Authority of NSW v Dederer [18], [65].

   [23] Roads and Traffic Authority of NSW v Dederer [69]. See also Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [2].

   [24] Roads and Traffic Authority of NSW v Dederer [69].

10. Allied to that last proposition is the accepted position that mere failure to eliminate a reasonably foreseeable risk does not of itself establish negligence.[25]  Moreover, as the employer sought to emphasise in its post‑appeal hearing submissions,[26] in some circumstances reasonableness may require no response to a foreseeable risk.[27]  The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response.[28]

    [25] Taylor v Fisher [105].

    [26] Appellant's amended reply to notice of contention dated 23 January 2020 par 9 (referring to Phillis v Daly (1988) 15 NSWLR 65, 68; said to be a situation where 'the degree of probability of such [an accident] … was low, and the magnitude of the risk slight …'. Two things should be noted about that case. First, it was an occupier's liability case. Second, it was a case where 'aesthetic factors' had a place in the calculus of negligence and there was a question as to the effect which the available precautions would have on the visual amenities of the area).

    [27] Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36]; Mulligan v Coffs Harbour City Council [3]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [124]; M R & R C Smith Pty Ltd v Wyatt [No 2] [43], [162]; Best Bar Pty Ltd v Warn [40].

    [28] Thompson v Woolworths (Qld) Pty Ltd [36].

11. Factors to be considered in deciding whether an employer is in breach of a duty to take reasonable care have been said to include:[29]

    1.The degree of risk of an accident occurring.

    2.The degree of injury likely to result from such an accident.

    3.The nature and extent of the remedial action suggested to be taken.

    [29] Raimodo v State of South Australia (1979) 23 ALR 513, 518.

Nature of the challenge to the reasonable foreseeability finding

1. Whether a risk of injury is reasonably foreseeable, and the magnitude of that foreseeable risk, involves a factual judgment.[30]  So too does that part of the assessment of breach in which a trier of fact determines what a reasonable person in the position of the defendant would do by way of response to a reasonable risk.[31]  In written submissions Mr Hooker sought to emphasise that appellate restraint should be exercised since the questions under consideration were quintessentially factual findings of the primary judge.[32]

   [30] Wyong Shire Council v Shirt (48 ‑ 49); Richards v State of Victoria [1969] VR 136, 145 ‑ 146.

   [31] Mulligan v Coffs Harbour City Council [2].

   [32] Respondent's response to the appellant's amended reply to the respondent's notice of contention dated 28 January 2020 pars 11 - 12.

2. In some cases - perhaps not this one given the limited terms of the primary judge's findings on reasonable foreseeability of risk - it might be that the trial judge's advantage over this court has consequences for the review of such factual findings.  For example, in some cases a trial judge will have an advantage in assessing the magnitude of the risk and the probability of its occurrence by reason of having seen and heard all the evidence.  As to a finding of negligence, however, this court has recently stated:[33]

   Whether, on a given set of facts, negligence on the part of the defendant is established must be determined by an appellate court for itself, without the appellate restraint or deference that applies to discretionary decisions and to some evaluative decisions.  In other words, the standard of appellate review is one of correctness.  In deciding upon the correct conclusion, the appellate court gives weight to the primary judge's conclusion, but must reach, and give effect to, its own conclusion.  (citations omitted)

   [33] Lightfoot v Rockingham Wild Encounters Pty Ltd [57].

3. We would not depart from that statement.  In truth, however, no question arises in this appeal as to the appropriate standard for appellate review when concerned with a challenge to the effect that a trial judge erred in making a factual finding in relation to negligence.  Ground 2 does not allege that the primary judge erred in fact.  There is no PD 7.4 schedule in relation to the finding that there was a reasonably foreseeable risk of injury.  Rather, ground 2 alleges that the primary judge 'was wrong in law' in coming to the reasonable foreseeability finding.  The allegation on appeal is one that the primary judge made an error of law in concluding that there was a reasonably foreseeable risk of injury.

4. The alleged error of law does not appear with clarity from the ground of appeal as expressed.  Three suggested errors appear in the employer's written submissions.  First, that the primary judge misapplied the relevant principles (although correctly stating them).[34]  Second, that the primary judge applied a hindsight bias.[35]  Third, in effect, that the primary judge's conclusion was one that could not reasonably be made, ie there was no evidence for the finding.[36]  At the appeal hearing senior counsel for Mr Hooker acknowledged the latter two bases for challenge.[37]  The first contention can only be understood by reference to the latter two contentions and, in our view, provides no independent basis for challenge.

   [34] Appellant's submissions par 18 WAB 9.

   [35] Appellant's submissions pars 19 - 20 WAB 9.

   [36] Appellant's submissions pars 19, 22 - 23 WAB 9 - 10.

   [37] Appeal ts 57 (hindsight); Appeal ts 45, 49, 54 (no evidence).

Reasonable foreseeability of risk of injury

1. It is convenient to commence consideration of ground 2 by identifying the relevant risk of injury.

2. In oral submissions senior counsel for the employer identified the relevant risk of injury in the present case as being whether, if the gas detector was turned on, it would cause injury.[38]  That partly echoed the primary judge's approach.  The primary judge broke the issue down into two questions.[39]  First, was it reasonably foreseeable that someone would switch the gas detector on as it lay on the table in the Operations Room and thus activate the alarm?  Second, could 'personal injury' to someone be reasonably foreseen in those circumstances?  In developing his submissions senior counsel for the appellant seemingly focussed on the latter inquiry suggesting that the question was whether it was far‑fetched or fanciful to say that someone would suffer an injury simply by a noise.[40]

   [38] Appeal ts 32.

   [39] Primary decision [115].

   [40] Appeal ts 32.

3. There is, in our view, a danger in dissecting identification of the relevant risk of injury in the manner undertaken by the primary judge.  The relevant plea was that, knowing the gas detector was faulty, the employer negligently permitted it to be left in the Operations Room where it could be accessed instead of ensuring that it was decommissioned or safely secured elsewhere.[41]  On the alarm being triggered Mr Hooker claimed that he was startled, reactively turned sharply to his left, with his knees hitting the side of his desk, suffering pain in his neck and left shoulder as well as partly in his right shoulder.[42]  Mr Hooker was initially diagnosed with a soft tissue injury[43] and was found to have suffered a cervical injury.[44]

   [41] Primary decision [13]. The primary judge considered the question of negligence on this basis: primary decision [110].

   [42] Primary decision [2] - [3].

   [43] Primary decision [5].

   [44] Primary decision [144].

4. Accordingly, the relevant risk was that an employee working in the vicinity might suffer a personal injury as a result of the defective gas detector being left non-decommissioned on the table in the Operations Room.

5. Whether that risk was reasonably foreseeable fell to be considered having regard to the nature of the defect - one known to the employer given the primary judge's findings the subject of ground 1 - in circumstances where the table was not the usual storage place for such a gas detector[45] and the uncontradicted evidence of one of the employer's witnesses was that the table was 'basically' for the service technicians.[46]  The latter was of significance given the primary judge's unchallenged finding that servicemen, such as Mr Starcevich, had legitimate reasons to switch on a gas detector in the Operations Room; for example, to check whether it was charged or to carry out a bump test.[47]

   [45] Primary decision [105(ii)]. See also [33], [37], [50].

   [46] ts 732.

   [47] Primary decision [116].

1. The question of whether the risk was reasonably foreseeable was also to be assessed in the circumstances that:[48]

   1.Mr Hooker and the other employees working in the Operating Room were working with their backs to the table.

   2.The alarm emitted an extremely loud and uncomfortable noise - elsewhere described as a 'loud, piercing sound'.[49]

   3.The Operations Room was a 'benign' office environment - not being a place in which its occupants would expect the alarm to be activated - in which the sound of the alarm was 'completely alien' and constituted an 'extremely unexpected' noise.

   [48] Primary decision [105(i)], [119] - [120].

   [49] Primary decision [86].

2. The primary judge's reasoning on the question of reasonable foreseeability of risk of injury was relatively brief.  His Honour identified the two questions previously referred to (see [20] above) and then concluded that it would be reasonably foreseeable to an employer, knowing of the faulty alarm, that it might be triggered without warning.[50]  The primary judge then referred to the submissions for the employer but concluded that, in submitting that the presence of the faulty gas detector in the Operations Room did not present a reasonably foreseeable risk of injury, the employer did not address the hazard presented by the alarm if the gas detector was faulty.[51]  His Honour then referred to the relevant factual backdrop[52] and concluded that 'the magnitude and type of startle response evinced by [Mr Hooker] was reasonably foreseeable, as was the risk that he would suffer musculo‑skeletal harm of the whiplash kind'.[53]

   [50] Primary decision [116].

   [51] Primary decision [117] - [118].

   [52] Primary decision [119] - [120].  Those matters are referred to in [24] above.

   [53] Primary decision [120]. A similar conclusion is expressed at [122], although without reference to the musculo-skeletal injury being 'of the whiplash kind'.

3. The primary judge correctly directed himself that the question of 'whether reasonable care was exercised' had to be judged prospectively.[54]  So too the question whether a reasonable person in the employer's position would have foreseen that its conduct involved a risk of injury to an employee (the plaintiff being a member of that class) was to be resolved by looking forward from a time before the occurrence of the injury giving rise to the claim rather than looking back at what had in fact happened.[55]  There was, however, no express recognition on the part of the primary judge as to the necessity to approach the test of reasonable foreseeability as stated in Wyong Shire Council v Shirt without hindsight.

   [54] Primary decision [114].

   [55] Vairy v Wyong Shire Council [105]; Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [44]; Lightfoot v Rockingham Wild Encounters Pty Ltd [53].

4. There are, in our view, three aspects of the primary judge's reasons which - taken together - lead to the conclusion that his Honour erroneously applied hindsight reasoning in concluding the question of reasonable foreseeability of risk of injury in favour of Mr Hooker.

5. First, at [119(iv)] the primary judge refers to the reasonably expected startle response being quite different in a benign office context 'as occurred here'.  Standing alone that would be of no consequence.  It does indicate, however, that the primary judge was focussed on the circumstances of the particular injury.  Second, in his conclusion the primary judge finds that 'the magnitude and type of the startle response evinced by [Mr Hooker]' was reasonably foreseeable.  Again, his Honour is considering the question by what in fact happened rather than the foreseeable risk of injury.  Third, despite having earlier put the question in terms of whether 'personal injury' was reasonably foreseeable, the primary judge expresses his conclusion in terms that the risk that Mr Hooker would suffer 'musculo-skeletal harm of the whiplash kind' was reasonably foreseeable.  Accordingly, the general kind of injury initially posed (consistent with prospective analysis) has morphed into a very specific and particular type of injury (consistent with retrospective review).  In that regard it is significant that the injury so identified is that which was nominated in the post-incident medical evidence adduced before the primary judge[56] and is the injury that was found to be the substantive organic cause of Mr Hooker's physical symptoms.[57]

   [56] See eg Primary decision [245], [325], [606], [613], [615], [624] - [625].

   [57] Primary decision [628].

6. Viewed in this manner, the primary judge's analysis was too narrowly focussed on the circumstances of the actual injury suffered by Mr Hooker and the circumstances in which he, Mr Hooker, evinced a startle response of the magnitude and type in fact experienced.  In so doing the primary judge erroneously applied hindsight reasoning.  Ground 2 should be upheld on that basis.

7. It then becomes necessary to address Mr Hooker's notice of contention and consider whether it was reasonably foreseeable that Mr Hooker, or a person of the relevant class including Mr Hooker (ie a person working in the Operations Room), might suffer injury of some kind as a result of a startle response to the sound of the alarm if the gas detector was turned on.

8. The point raised by the notice of contention is obscured by its terminology and its insistence on inviting that the question of reasonable foreseeability be approached on two premises: first, that the gas detector was turned on causing the alarm to sound; second, that an injury might thereby be suffered as a result of a startle response.

9. For the reasons we have given we would not express the relevant risk of injury in those terms.  The relevant risk was that an employee working in the vicinity might suffer a personal injury as a result of the non‑decommissioned defective gas detector being left on the table in the Operations Room.  The risk arose from three factors.  First, the faulty nature of the gas detector (something known to the employer).  Second, the location of the gas detector - it was left unsecured in an environment where, if turned on, it would emit a loud, piercing and unexpected noise immediately behind a group of employees likely to be seated at their workstations in front of a computer.  Third, the possibility that someone might switch on the gas detector.

10. It is not necessary that the risk of the particular injury suffered by Mr Hooker be foreseeable.  Nor must the specific mechanism by which the injury is caused be foreseeable.  It was not necessary that a startle response of the magnitude and type experienced by Mr Hooker - leading to some musculo-skeletal injury - be foreseeable.  It was enough if some personal injury to Mr Hooker or one of his co‑workers was foreseeable in whatever manner that might occur.  Whether that was so must be considered prospectively and objectively.

11. Two things should be noted at the outset.  First, there was no challenge to the primary judge's finding that it was reasonably foreseeable that the defective gas detector might be switched on in the Operations Room.[58]  Nor could there be.  The gas detector was on a central table (away from the usual location at which such items were stored) to which service technicians had access.  Even putting aside the necessity for routine testing, the atypical location of the device, out of its case, was conducive to the prospect that a workman might turn it on.  Second, the employer accepted that it may be open to find that the sudden sounding of an alarm may startle someone.[59]  As a matter of common experience that concession was correctly made.  It was reasonably foreseeable that the defective gas detector, if switched on without warning in the office environment of the Operations Room, might by its loud, piercing and unexpected noise evoke a startle response from an employee absorbed in his or her work with his or her back to the device.  We agree with the submission on Mr Hooker's behalf that, if this be so, it is a small step to recognise that a sudden and reactive reflex movement associated with a startle response might result in injury.[60]

    [58] Primary decision [116].

    [59] Appellant's submissions par 21 WAB 9.

    [60] Respondent's submissions par 45 WAB 29.

12. Indeed, the employer's post-appeal hearing submissions made a further concession in this regard.  It was said:[61]

    In this case, the sounding of the alarm did not apply physical force to any part of [Mr Hooker's] body and, accordingly, the probability of [Mr Hooker] suffering any physical injury as a result of hearing the alarm was very low.  In fact, the only way in which [Mr Hooker] could reasonably have been expected to suffer any physical injury was as a result of his reaction to the alarm.  It could reasonably have been expected that, in moving as part of his startle response, he could have inadvertently struck parts of his body on objects in the Operations Room, thereby suffering injury.  However, any such injury, being bruising or perhaps a laceration, would have been relatively minor.  (emphasis added)

    [61] Appellant's amended reply to notice of contention dated 23 January 2020 par 10.

13. The intended force of the employer's submission goes to the magnitude and extent of the risk of injury when it comes to assessing whether there was a breach of duty.  The submission puts the risk of injury in terms of physical injury by collision.  It nevertheless provides a concession (in our view, one properly made for the reasons as given) that there was a reasonably foreseeable risk of personal injury to a class of persons including Mr Hooker.  That alone suffices to uphold the notice of contention, assuming that ground 3 does not provide an independent answer to the point raised by the notice of contention.  It matters not, should the employer be correct in its characterisation as recorded above, that the probability of Mr Hooker suffering any physical injury was low.  Even if the risk of personal injury from the defective gas detector being left on the table in the Operations Room was very unlikely to occur it was still foreseeable in the sense that it was not far-fetched and fanciful.

14. Accordingly, the employer's success on ground 2 is not immediately dispositive of the appeal.  Subject to consideration of ground 3 (as raised in answer to the notice of contention point) and the employer's other arguments to the effect that there was no breach of duty, we would uphold Mr Hooker's notice of contention.  There was a reasonably foreseeable risk of injury.

15. For the reasons we have given it is not necessary, in the context of ground 2 or the notice of contention, to come to a conclusion on whether, in the circumstances of the present case, a reasonable person in the employer's position would have foreseen that an employee in the position of Mr Hooker might experience a startle response of such a magnitude and type that he or she might suffer some form of musculo‑skeletal injury.  That said, the degree of likelihood of such a risk eventuating is relevant at the next stage of the breach inquiry: that of identifying the response of the reasonable employer to the risk of injury presented by leaving the defective gas detector on the table in the Operations Room where it could be accessed and switched on without warning.  It was in this context that the employer pressed the contention that the reasonably foreseeable risk of injury was limited to a relatively minor injury.  In substance, assuming that there was a reasonably foreseeable risk of injury, the employer sought to answer the notice of contention by denying that there was a breach of duty - in part raising the matters previously advanced within the rubric of ground 3.

16. We turn now to that question of breach of duty.

Breach of duty

1. The question whether there was a breach of duty requires consideration of the foreseeable risk, including the magnitude of the risk, the degree of the probability of its occurrence, and the nature of the injury likely to be caused in the event that the risk transpires.

2. In its post-appeal hearing submissions the employer sought to rely on the Queensland Court of Appeal decision in Jenkin v Dalrymple Shire Council.[62]  Reference was made to the following passage from the judgment of Pincus JA (with whom Shepherdson J agreed):[63]

   [I]f none but a minor injury could have been expected to occur, then a finding of reasonable foreseeability helps the appellant's case but little.  What the appellant had to show was that the magnitude of the risk was, in the whole circumstances, such as to require a reasonable employer to take alleviating action.

   [62] Jenkin v Dalrymple Shire Council [1993] QCA 142.

   [63] Jenkin v Dalrymple Shire Council (10).

3. As a statement of principle that passage is unexceptional.  Two things should be noted however.  First, the passage assumes - as did the employer's argument in relying on ground 3 in answer to the notice of contention - that only a minor injury could have been expected to occur.  Second, the statement cannot be divorced from the factual context in the case before the Queensland Court of Appeal.  The differing views of the members of the court as to the outcome of the claim are instructive so far as they are based on differing views as to the availability and expense of alleviating action.

4. In Jenkin v Dalrymple Shire Council an employer required an employee to take a journey over bumpy roads in the rear passenger compartment of a twin cab motor truck.  The employee suffered disruption of a lumbosacral disc and the fracture of the coccyx.  The injuries were suffered as a result of jarring of the spine flowing from the corrugated, uneven nature of the road surface.  There was some evidence that the vehicle had a hard suspension.

5. Fitzgerald P, who was in the minority, found that it was reasonably foreseeable that the employee might suffer at least minor injury (ie bruising, cuts or ligamentous damage) but said that the severity of the injuries as resulted was not foreseeable.[64]  Nevertheless, accepting that another more suitable vehicle was probably available in which the employee would not have been injured, Fitzgerald P was satisfied that the employer breached its duty.  While only comparatively minor injuries were reasonably foreseeable all that due care demanded was the use of the other available vehicle (or permitting the employee to travel in the front seat) which Fitzgerald P said 'would not have involved [the employer] in expense or significant inconvenience'.[65]

   [64] Jenkin v Dalrymple Shire Council (6).

   [65] Jenkin v Dalrymple Shire Council (7).

6. Pincus JA concluded that, at trial, it was not the employee's case that there were other, safer, vehicles available.[66]  Pincus JA considered that the employee could only succeed on the basis that the travel arrangements should have seemed to the employer to be so generally fraught with risk as to make it reasonable to keep passengers out of the vehicle on long trips on rough roads.[67]  However, his Honour concluded that the trial judge was entitled to consider the matter on the basis that the occurrence of a significant spinal injury to a person travelling in the employee's circumstances was a quite unexpected event.[68]  On that basis the negligence claim failed.

   [66] Jenkin v Dalrymple Shire Council (15).

   [67] Jenkin v Dalrymple Shire Council (13 - 14).

   [68] Jenkin v Dalrymple Shire Council (15 - 16).

7. Shepherdson J, as well as agreeing with Pincus JA, observed separately that the employee had failed to prove that the employer had unreasonably failed to take an alternative measure in the form of providing another more suitable vehicle.[69]  His Honour found it was not clear whether another more suitable vehicle - one which would significantly reduce or eliminate the risk of the type of injury in fact suffered - was readily available for the journey.[70]

   [69] Jenkin v Dalrymple Shire Council (20).

   [70] Jenkin v Dalrymple Shire Council (21).

8. Accordingly, the differing views taken as to the case run at trial, and the availability of alleviating action which could be taken without significant expense, difficulty or inconvenience, were determinative of the case and explained the differing results for the majority (Pincus JA and Shepherson J) and the minority (Fitzgerald P).

9. The present case is distinguishable on its facts from those which controlled the result in Jenkin v Dalrymple Shire Council. Let it be assumed, consistent with the employer's contention as recorded in its submissions reproduced at [35] above, that the reasonably foreseeable risk of injury to Mr Hooker (or some other employee in the Operations Room) was of no more than a relatively minor personal injury such as bruising or lacerations. This was not a case, such as Jenkin v Dalrymple Shire Council, where alleviating action was unavailable - or even one where the identified measures to minimise the risk of injury involved significant expense, difficulty or inconvenience.

10. The primary judge identified two measures that the employer could have taken:[71]

    1.'Tagging out' the defective gas detector - this involved placing a tag on the device signifying that it was out of operation.  There was evidence that the employer had a tag-out system;[72] but the primary judge was not satisfied that the defective gas detector was tagged out at any stage.[73]

    2.Placing the defective gas detector in an inaccessible place.

    [71] Primary decision [122].

    [72] Primary decision [104].

    [73] Primary decision [105(iii)].

11. In support of ground 3 - which in its terms asserted that the primary judge was wrong in law in finding that there was a breach of duty - the employer argued against the availability of both measures.  The employer submitted that as a matter of common sense it was not a necessary conclusion that 'tagging out' the device would have made any difference.[74]  That goes to causation rather than breach of duty.  As to putting the defective gas detector in an inaccessible place, the employer argued that the finding was not based on plausible evidence and provided no reasonable conclusion without better evidence of whether it was practicable.[75]  The device measured 11.5 cm x 7.6 cm x 3.5 cm and weighed 224 g.[76]  It was designed to be worn on the person.[77]  There is no merit in the employer's suggestion that such a small object could not be placed in an inaccessible place somewhere within the 'large scale industrial complex' operated by the employer.[78]  For example, there was evidence that the defective gas detector could have been located and stored in a storeroom area outside the Operations Room.[79]  The primary judge's finding that placing the device in an inaccessible place was an available measure to minimise the risk of harm was reasonably open on the evidence.

    [74] Appellant's submissions par 29 WAB 11.

    [75] Appellant's submissions par 30 WAB 12.

    [76] Primary decision [32(i)].

    [77] Primary decision [32(i)], [117].

    [78] The employer's own description: Appellant's submissions par 30 WAB 12. See also Primary decision [35].

    [79] See eg ts 105 - 106, 345, 460, 467.

12. The employer fails in its challenge to the primary judge's finding that there were available alleviating measures.

13. That failure presents a substantial difficulty for the employer's additional answer to the notice of contention insofar as the employer contended that there was no breach of duty.  There were available alleviating measures.  Having regard to the nature of those measures, as identified by the primary judge, they were measures that could have been taken without expense, difficulty or inconvenience.  Tagging out the device only required that a note be attached to the defective gas detector signifying that it was out of operation.  Placing the device in an inaccessible place only required relocation.

14. In answering the employer's post-appeal hearing submissions Mr Hooker referred to the analysis of Gibbs CJ in Turner v The State of South Australia:[80]

    [T]he degree of risk of injury occurring was not shown to be great, and the way of avoiding injury should have been obvious enough to any employee.  On the other hand the remedial action suggested involved little or no difficulty or expense.  Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.  Not without hesitation I have come to the conclusion that the respondent was negligent.  (emphasis added)

    [80] Turner v The State of South Australia (840).

1. The present case was not one where the risk of injury was or ought to have been obvious to all employees in the Operations Room.  Any appreciation that there was a risk of injury was dependent on knowledge of the defective status of the gas detector.  An employee unaware of the presence of the gas detector on the table, or its defect, would have no occasion to consider the available means of avoiding injury.  Thus this was not a case in which it could be argued that the foreseeable risk was so obvious, and the likelihood that an employee would fail to observe and avoid the risk so remote, as reasonably not to require a response by the employer at all.[81] 

   [81] cf Thompson v Woolworths (Qld) Pty Ltd [36]; Taylor v Fisher [107]; Best Bar Pty Ltd v Warn [40].

2. Two things should be noted as to the passage relied on.  First, the passage occurs as part of Gibbs CJ's reasoning process in arriving at a conclusion on whether, on the facts of the case before him, an employer acted unreasonably in failing to employ a particular system of work which would have averted the possibility that an employee might have suffered injury.  Second, we read Gibbs CJ's reference to 'in general' not as stating a principle of general application.  Rather, it identifies the outcome that is most commonly arrived at when assessing negligence in an instance where an alleviating measure involves little difficulty or expense.  Care must be taken not to elevate such a statement - one acknowledging, as a matter of fact, the typical outcome where certain factual ingredients are present - to the status of a binding principle of law.  It should, however, be observed that in this particular instance there are similar statements of acknowledgement in other authorities.[82]  There are also occasions where the lack of expense and difficulty associated with alleviating measures has proven determinative in finding negligence.[83]

   [82] See eg The Wagon Mound [No 2] [1967] AC 617, 643 ‑ 644; Wyong Shire Council v Shirt (46).

   [83] See eg Bankstown Foundry Pty Ltd v Braistina (310); Carrier Airconditioning Pty Ltd v Duzevich [2001] WASCA 243 [51].

3. Critical to the employer's contention that there was no breach of duty was its insistence that the reasonably foreseeable risk of injury was confined to an injury that would have been relatively minor - bruising or perhaps a laceration.

4. We do not accept that contention. Having already come to the conclusions we express at [34] - [35] above, we agree with Murphy JA, for the reasons his Honour gives at [123] - [124] below, that in the circumstances - viewed prospectively and objectively - it was not far‑fetched or fanciful that an employee in the position of Mr Hooker might, on being startled by the alarm sounding due to the defective gas detector being switched on in the Operations Room, suffer some kind of neck or back injury. We agree that, as a matter of common experience, a sudden twisting movement due to a startle response may lead to some bodily injury to the neck or back.

5. While in this sense reasonably foreseeable, we consider - in terms of the second stage of the two-step process in Wyong Shire Council v Shirt - that the risk of such an injury was slight.  A risk may be reasonably foreseeable although unexpected.  In our view - one that, like Murphy JA's foreseeability conclusion, is grounded in our understanding of common experience - it would be a rare and infrequent occurrence for the startle response to result in bodily injury.  While it is not uncommon that a sudden and rapid twisting of the neck may lead to some type of neck or back injury it is unusual that the startle response would be of such a degree as to cause such a sudden and rapid twisting.  In reaching this conclusion we do not rely on the medical evidence referred to on behalf of Mr Hooker in written and oral submissions.[84]  It was not shown that the employer had or that a reasonable person in the position of the employer would have had such an expert understanding of the startle response and its possible implications in terms of an extension-rotation injury.[85]  This material was not something that can properly be taken into account.  In any case the medical evidence referred to did not address the frequency with which the startle response may provoke such instantaneous movement.

   [84] Respondent's submissions par 46 WAB 29 - 30; Respondent's response to the appellant's amended reply to the respondent's notice of contention dated 28 January 2020 par 16; Appeal ts 48 - 50.  See also ts 390 - 391, 431 - 433, 591 - 592.

   [85] Indeed, in the post-appeal hearing submissions Mr Hooker apparently concedes that the medical knowledge may not be attributable to the employer: Respondent's response to the appellant's amended reply to the respondent's notice of contention dated 28 January 2020 par 16.

6. In addition to the degree of probability of injury, also relevant is the magnitude of the injury likely to result.  The primary judge made no attempt to assess the magnitude of the risk in terms of offering a conclusion as to the seriousness of the injury that might result from the risk.  His Honour did no more than refer to an injury consisting of musculo‑skeletal harm of the whiplash kind.  There are two difficulties with that finding.  First, for reasons already given, the finding is affected by hindsight bias.  It cannot be relied on.  Second, it does not address the degree of seriousness of the injury.

7. We are unable to accept, assessed from the viewpoint of our understanding of common experience, that the severity of the actual injury suffered by Mr Hooker was foreseeable.  But that is not the relevant issue at this stage in the assessment of whether there was a breach of duty.  Rather, the issue is the nature of the injury likely to result in the event that the risk materialises.  Viewed prospectively and objectively, the range of possible bodily injury to the neck or back due to the startle response provoking a sudden and rapid twisting of the neck extended to some form of soft tissue injury.  In that sense the risk, which was slight, was of an injury that was potentially non-trivial, and might even in some instances have permanent consequences, but ordinarily would be expected to be of relatively minor severity.

8. Leaving the defective gas detector on the table in the Operations Room presented only a slight risk of a non-trivial injury to an employee in the position of Mr Hooker.  Nonetheless, we are not persuaded by the employer's submission that the primary judge ought to have found that it was not necessary for the employer to take any action in response to the risk of injury occurring.[86]  We do not accept that the magnitude of the risk of non-trivial injury was so small, and the probability of it occurring so remote, that there was no reason to attach any degree of significance to the risk - even given our conclusions as to the probability and likely nature of the potential injury.  The primary judge held that there were available alleviating measures that could have minimised the risk of harm.  The challenge to that finding was without merit.  The available alleviating measures were reasonably practicable in the sense that they were reasonably likely to eliminate the risk of injury without any expense, difficulty or inconvenience.  Moreover, doing so would have been consistent with maintaining a productive workplace by avoiding the potential distraction of the alarm.

   [86] Appellant's amended reply to notice of contention dated 23 January 2020 par 11.

9. The circumstances were such that the employer was not entitled to ignore the risk of injury.  A reasonable person in the employer's position would have responded to the risk by taking one or both of the identified alleviating measures: the reasonable response to the relevant risk was to minimise or eliminate the risk by tagging out the defective gas detector or placing it in an inaccessible place.  Thus this was not a

case where the employer acted reasonably by not taking any action at all in response to the risk of injury occurring.[87]  To the contrary, the employer failed to take reasonable steps to provide a safe place of work and thereby breached its duty of care to Mr Hooker to take reasonable care to avoid exposing him to unnecessary risk of injury.

[87] Carrier Air Conditioning v Duzevich [48].

Conclusion

1. While we would uphold ground 2, we would dismiss the appeal.  Mr Hooker's notice of contention should be upheld: there was a reasonably foreseeable risk of injury.  The two additional matters raised by the employer in answer to the notice of contention - ground 3 and the employer's responsive contention that there was no breach of duty - both fail.  Accordingly, the primary judge's finding of negligence is sustained for the different reasons we have expressed.

MURPHY JA:

Introduction

1. This appeal is against the decision of McCann DCJ in Hooker v Allied Pumps Pty Ltd [No 2] (primary decision).[88]  The primary decision concerned a claim by the respondent (Mr Hooker) against the appellant (the employer) for damages for personal injury caused by an accident in the course of Mr Hooker's employment with the employer.[89]

   [88] Hooker v Allied Pumps Pty Ltd [No 2] [2018] WADC 129.

   [89] Primary decision [1].

2. The accident occurred at around 2.00 pm on 12 March 2012.  Mr Hooker was seated, working at his desk in an open plan office in Welshpool, known as the Operations Room.  Another employee of the employer, Mr Starcevich, switched on a 'gas detector unit' that was on a table behind Mr Hooker.  The gas detector unit was a device used by the employer's service technicians working off‑site in enclosed spaces to detect hazardous airborne substances.  The unit was designed to sound an alarm if it detected hazardous substances in the air.[90]  In this case, the unit on the table behind Mr Hooker was defective, and the alarm went off when the device was switched on.  Mr Hooker was

startled by the alarm and reacted by turning sharply to his left to identify the source of the noise.  His knees hit the side of his desk.  He felt pain to his neck and left shoulder, and partly in his right shoulder.[91]

[90] Primary decision [32(i)].

[91] Primary decision [2] - [3].

1. As a result of the accident, Mr Hooker suffered, amongst other things, a cervical injury comprising an acute exacerbation of degenerative change at the C4/5 level, and low grade left C5/6 facet joint inflammation.[92]

   [92] Primary decision [144].

2. Mr Hooker claimed that his injury was caused by the employer's negligence, breach of contract and breach of statutory duty on the alternative bases that:[93]

   1.The employer's management knew or ought to have known that the gas detector was faulty and negligently permitted it to be left in the Operations Room where it could be accessed, instead of ensuring that it was decommissioned and/or safely secured elsewhere.

   2.Alternatively, the employer was vicariously liable for Mr Starcevich's negligence in that he switched the gas detector on and thus set off the alarm when he knew or ought to have known that it was unsafe to do so.

   [93] Primary decision [12] - [14].

3. The judge found that the employer was liable on the first basis alleged by Mr Hooker, and that it was not necessary to consider Mr Hooker's case on the second basis.[94] 

   [94] Primary decision [123] - [124].

4. The employer appeals against the findings of negligence.  In addition to his answer to the appeal, Mr Hooker also relies on a notice of contention.

5. Mr Hooker also filed a cross‑appeal on a discrete point in the assessment of damages.  Mr Hooker alleged that the judge erroneously used a figure in his calculations, and that use of the correct figure would have resulted in the award being increased by (approximately) $47,000.  This point is conceded by the employer.

Primary decision

The gas detector unit

1. The judge found, in effect, that:[95]

   1.The gas detector unit in question measured 11.5 cm x 7.6 cm x 3.5 cm and weighed 224 g.  It was designed to be worn by personnel in enclosed spaces where there was a risk of hazardous airborne substances.  The device was designed to activate three alarms if it detected such substances: an aural alarm at 95 decibels (which sounded like a domestic or automotive security alarm), a visual alarm (the green LED fascia changed to red) and a physical alarm (the unit vibrated).

   2.The gas detector was given a certificate of calibration by the manufacturer in Pittsburgh, USA on 2 July 2011.  It is essential that the calibration be maintained.  To that end, each unit had to be subjected to a daily test (known as a 'bump test') prior to use and if necessary, any anomaly corrected.

   3.The unit was capable of automatically detecting its own faults and displaying error codes. 

   4.The unit was designed to activate all three alarms in the event of a defective mainboard.  In such a case there could be no mistaking the need to take the unit out of service immediately.

   5.The gas detector was ordinarily kept in the Operations Room in a factory‑supplied case with all of its accessories, such as its charger and gas sample canister (for calibration).

   6.On 13 March 2012, the gas detector unit had a defective mainboard, and MSA (the Australian supplier of the unit) agreed to replace it under warranty.

Custody and maintenance of the gas detector unit

[95] Primary decision [32] - [34].  Mr Perera was the employer's 'Projects Coordinator' and 'Safety Coordinator', and an 'Employee Safety and Health Representative'.

1. The gas detector unit was usually stored, in its case, on a shelf above Mr Perera's workstation.[96]

   [96] Primary decision [37], [49] ‑ [50], [105(ii)].

2. Although the unit was usually stored above Mr Perera's workstation, it was Mr Slack, the service manager of the employer, who had responsibility for the custody and maintenance of the gas detector unit.[97] 

   [97] Primary decision [107].

3. The finding that Mr Slack was the person in the employer's organisation responsible for the custody and maintenance of the gas detector unit was based on:

   (a)the judge's acceptance of Mr Hooker's evidence that if a contractor or employee of the employer needed a gas detector unit, they were required to get it from Mr Slack and return it to him afterwards;[98]

   (b)the judge's acceptance of the evidence of other witnesses to the effect that Mr Slack had the responsibility for the custody and maintenance of gas detector units;[99] and

   (c)the judge's rejection of Mr Slack's oral evidence to the contrary, based on his assessment of Mr Slack's credibility.[100]

   [98] Primary decision [37], [107].

   [99] Primary decision [107], see also [50].

   [100] Primary decision [76], [107] read with [71], [73].

4. As the person responsible for the custody and maintenance of the gas detector unit, Mr Slack was the person responsible for receiving notification of defects in a gas detector unit and for arranging to have the defective unit repaired.[101]

The sounding of the alarm and the accident

[101] Primary decision [107].

1. The judge made the following findings:

   1.At approximately 2.00 pm on 12 March 2012, Mr Hooker, together with other staff, including Mr Perera, Mr Slack and Mr Kaciuba (not called as a witness) were working at their desks in the Operations Room with their backs towards the central table.[102] 

   [102] Primary decision [105(i)].

   2.The Operations Room was approximately 10 m by 6 m, with work stations along the sides.  It was part of a larger industrial complex.  There was a large table in the middle of the room.[103]

   [103] Primary decision [35].

   3.The gas detector unit was lying on the central table in the Operations Room.[104]   It was not in its case nor usual place of storage above Mr Perera's work station.[105]

   4.Mr Starcevich, one of the employer's service technicians, came into the Operations Room and went to the table.[106]  No one paid him any attention.[107]

   5.Mr Starcevich switched on the gas detector unit and this caused the alarm to go off.[108] 

   6.The alarm emitted a loud piercing sound.[109]

   7.This startled Mr Hooker who reactively turned sharply to his left to identify the source of the noise.  His knees hit the side of his desk.  He felt pain to his neck and left shoulder, and partly in his right shoulder.[110]

   8.The alarm when it first went off also startled Mr Starcevich.[111]

   10.After the alarm first sounded, Mr Starcevich activated it at least once more as a 'prank'.[112]

   11.Mr Slack was not startled by the alarm going off as it was not such a surprise to him.[113]

The gas detector unit was faulty

[104] Primary decision [105(ii)].

[105] Primary decision [37], [49] ‑ [50], [105(ii)].

[106] Primary decision [105(i)].

[107] Primary decision [105(i)], [105(iii)].

[108] Primary decision [2].

[109] Primary decision [86].

[110] Primary decision [2] - [3].

[111] Primary decision [105(iv)] read with [57] - [58], [95].

[112] Primary decision [105(iv)] - [105(v)].

[113] Primary decision [75].

1. The judge found, in effect, that:

   1.The gas detector unit had a defective mainboard, when it was in for repairs on 13 March 2012 (the day after the accident).[114]

   2.As at 12 March 2012 (the date of the accident), the gas detector unit was not in its case or usual place of storage.  It was defective and was awaiting collection for off‑site repairs.[115]

   3.It was more probable than not that the fault as at 12 March 2012 involved the mainboard, as it would have been an 'improbable coincidence' that the fault for which the unit was left out for collection and repair on 12 March 2012 was other than the mainboard fault which was found the next day when it was in for repair.[116]

   4.The fault in the mainboard was such that whenever the gas detector unit was switched on, the alarm would sound.[117]

   5.Although the gas detector unit was faulty and was left out for repair on 12 March 2012, it had not been 'tagged out' - a process which would signify that it was out of operation.[118]

The employer's knowledge that the gas detector unit was faulty

[114] Primary decision [34].

[115] Primary decision [105(ii)].

[116] Primary decision [107].

[117] Primary decision [107]. See also [32(iii)].

[118] Primary decision [105(iii)].

1. The judge found, in effect, that prior to the accident on 12 March 2012, Mr Slack knew that the gas detector unit was faulty, in that the alarm would sound when it was switched on.  Although the judge's reasons on this topic are, with respect, somewhat lacking in clarity, it appears from a consideration of the primary decision as a whole that the finding of knowledge was made having regard to the following matters.

2. First, it appears that the judge drew an inference that Mr Slack was likely to have had knowledge of the relevant fault from the following matters:

   1.On 12 March 2012, prior to the accident, the gas detector unit was in fact faulty, in that the alarm sounded when the unit was switched on.[119]

   2.Mr Slack was the person responsible for the custody and maintenance of, and for arranging repairs to, the gas detector unit, and was the person to whom defects in the unit were reported.[120]

   3.On 12 March 2012, the gas detector unit was not stored away in its case in its usual place of storage, but was sitting on the table in the Operations Room, to the (admitted) knowledge of Mr Slack.[121]

   4.The gas detector unit was on the table because arrangements had been made for it to be collected for repair.[122]

   5.Mr Slack, unlike others in the room on that day, was not surprised to hear the alarm go off when Mr Starcevich switched on the gas detector unit.[123]

   6.It was Mr Slack who had made the arrangements for the unit to be collected for repair.[124]

   [119] Primary decision [105(ii)], [107].

   [120] Primary decision [107].

   [121] Primary decision [33], [105(ii)], [108].

   [122] Primary decision [105(ii)].

   [123] Primary decision [75].

   [124] Primary decision [107].

1. Secondly, the judge relied on Mr Powell's report dated 14 May 2013 about the accident.  Mr Powell was the employer's 'Human Resources Health, Safety, Environment and Quality Manager'.  His Honour found that Mr Powell stated in effect that according to Mr Slack, the alarm was having problems at the time of the accident on 12 March 2012, as it had gone off on earlier occasions when the unit had been turned on.[125]

   [125] Primary decision [103].

2. 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 2012

   Open office shared by operation HSC and service personnel at time

   Device - 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].

3. 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].

4. As to Mr Starcevich, the judge was not satisfied that he knew that the unit was defective when he first turned it on.[128]

Foreseeable risk of injury

[128] Primary decision [109], [124].

1. 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'.

2. 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]

Breach - failure to take measures to minimise risk of injury

[130] Primary decision [32(ii)], [116].

[131] Primary decision [119(i)].

[132] Primary decision [119(ii)].

[133] Primary decision [119(iii)].

[134] Primary decision [46], [120].

[135] Primary decision [119(iv)].

1. The judge found that, as a matter of common sense, many possible measures could have been taken by the employer to minimise the risk of harm.  These included:[136]

   1.tagging out the defective unit; and

   2.placing it in an inaccessible place.

   [136] Primary decision [122].

2. Accordingly, the judge found the employer to be negligent.  The judge summarised his findings as follows:[137]

   [The employer] breached its duty of care to [Mr Hooker] and is liable for the injuries thereby caused.  In short, someone in a position of responsibility left a defective alarm in an office environment where it could foreseeably be activated without warning to others and physically startle them enough to provoke some form of musculo‑skeletal injury.

   [137] Primary decision [123].

Grounds of appeal and notice of contention

Grounds of appeal

1. Ground 1 alleged, in effect, that the judge erred in law and in fact in finding that the employer had prior knowledge:

   (a)that the gas detector unit was faulty; and

   (b)that the particular fault was such that it would cause the alarm on the gas detector unit to sound.

2. Ground 2 alleged that the judge erred in law in finding that there was a reasonably foreseeable risk of injury in the circumstances of the case.

3. Ground 3 alleged that the judge erred in law in finding that the employer breached its duty of care to Mr Hooker.

4. In oral submissions, senior counsel for the employer abandoned ground 3 as a ground of appeal.  He informed the court that the matters in ground 3 would only be relied on by the employer in answer to Mr Hooker's notice of contention - which itself was predicated on the employer succeeding on ground 2.[138]

Notice of contention

[138] Appeal ts 32 - 33.

1. By his notice of contention, Mr Hooker contended, in effect, that even if the judge erred (as alleged by ground 2 of the appeal) in finding that the risk of musculo‑skeletal injury was reasonably foreseeable, then the judge's conclusion that the risk was reasonably foreseeable should be upheld on the basis that it was reasonably foreseeable that Mr Hooker (or a person in the relevant class including him) 'might suffer injury of some kind as a result of a startle response [to the alarm sounding] … whether such startle response was of a magnitude or type evinced by [Mr Hooker] or not'.

Ground 1 - parties' submissions and disposition

Parties' submissions ground 1

1. The employer contended that there was no reasonable evidentiary basis for finding that the employer had knowledge that the gas detector unit was faulty and, in particular, that it was faulty in that the alarm would sound when it was switched on.  In that regard, the employer referred to Jones v Dunkel,[139] and submitted:

   [Mr Hooker] must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.

   [139] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 304 - 305; appellant's written submissions, par 2; WB 5.

2. Although the employer's written submissions appeared to challenge some of the primary facts as found by the judge as opposed to the employer's knowledge of those facts,[140] in oral submissions, senior counsel for the employer confirmed that ground 1 was confined to the question of the employer's knowledge.  Senior counsel said that the employer did not challenge the underlying findings of fact as to the existence of the fault in the gas detector unit.  He also said that the employer did not challenge the fact that the gas detector unit was faulty and awaiting collection, but, rather, challenged the finding that Mr Slack knew of those facts.[141]

   [140] See, eg, pars 10(a) and 11 of the appellant's written submissions; WB 7.

   [141] Appeal ts 16 ‑ 18, 19 ‑ 20.

3. It should also be observed that the employer filed (belatedly) a Practice Direction 7.4 schedule (Appellant's Schedule), by which it challenged (broadly consistently with its first ground) a finding of fact to the effect that someone in the employer's organisation had notice of the defect in the unit prior to the accident.[142]  In this regard, the employer effectively relied on the arguments otherwise raised in its submissions in relation to ground 1 more generally.[143]

   [142] WB 16.

   [143] See 'Evidence against' in Appellant's Schedule, WB 16.

4. The employer submitted, in effect, that:

   1.No witness gave direct evidence of knowledge that the gas detector unit was faulty prior to the incident.[144]

   2.Mr Slack denied knowledge of any prior fault, and of any responsibility for the faulty unit.[145]

   3.There were a variety of reasons why, on Mr Slack's understanding, the gas detector unit may have been left on the table on 12 March 2012, apart from collection for repairs.  For example, it could have been there because someone had not put it away.[146]

   4.The finding that Mr Slack was responsible for the custody, or even the custody and maintenance, of the gas detector unit would not ground an inference of the requisite knowledge.[147]

   5.More generally, none of the findings summarised in [79] above, collectively or individually, could reasonably sustain a finding that Mr Slack had the requisite knowledge.[148]

   6.The judge could not have relied on the report written by Mr Powell on 14 March 2013, in that the words 'every time' in that report were equally consistent with the multiple times that the alarm went off on the day of the accident when Mr Starcevich switched it on.[149]

   [144] Appellant's written submissions, par 5; WB 6; Appellant's Schedule, WB 16.

   [145] Appellant's written submissions, par 14; WB 8; appeal ts 22; Appellant's Schedule, WB 16.

   [146] Appellant's written submissions, par 6; WB 6; appeal ts 19 - 20, 24.

   [147] Appeal ts 19, 21, 24.

   [148] Appeal ts 27 - 29.

   [149] Appellant's written submissions, par 5; WB 6; appeal ts 29 - 31; Appellant's Schedule, WB 16.

5. Mr Hooker submitted, in substance, that the judge's findings on knowledge were reasonably open on the unchallenged findings of primary fact, which included credit‑based findings of primary fact.[150]

Disposition ground 1

[150] Respondent's submissions, pars 15 - 35; WB 21 - 26.

1. The essential question raised by ground 1 is whether the employer had knowledge of the fact that (1) the gas detector unit was faulty prior to the accident, and (2) that the fault was of a nature which resulted in the alarm sounding when the unit was switched on.  

2. The basis for the judge's findings on knowledge have been set out in [79] ‑ [80] above.

3. On the unchallenged findings of primary fact referred to in points 1 to 5 of [79] above, it was reasonably open to the judge to infer that the employer, through Mr Slack, knew that the unit was faulty in that the alarm sounded when it was switched on. 

4. Once it is accepted (as it should be, given the credibility findings involved[151]) that it was open to the judge to find that Mr Slack was responsible for the custody and maintenance of the gas detector unit, then the fact that he was the responsible person, coupled with the fact that the unit was defective and had been left out for repair, is capable of sustaining the inference that it was Mr Slack who knew of the relevant fault and had arranged for repairs to the unit.

   [151] See, eg, Smart v Power [2019] WASCA 106 [104].

5. The employer's arguments (see [96] above) to the contrary cannot be accepted.  Although no witness had given direct evidence that Mr Slack knew of the previous fault, the finding that he had the relevant knowledge was open, on the unchallenged findings of fact, as a matter of inference.  Further, while Mr Slack denied any prior knowledge of, or responsibility for, the defective unit, the judge was not bound to accept his evidence.  His Honour plainly rejected it.  On the unchallenged findings referred to in points 1 to 5 of [79] above, it was open to the judge to infer that it was Mr Slack who had arranged for the unit to be repaired, and that it was not (on his understanding) out of its case on the table for some other reason.

6. Further, the judge's construction of Mr Powell's report was open on the face of the document read as a whole.  His Honour gave reasons for reading it that way (see [82] above), and his reasoning does not bespeak error.  In any event, the report into the accident cannot be read in a vacuum, and the judge was best placed to consider the meaning and effect of the report in the context of his assessment of the evidence at trial as a whole, including Mr Powell's oral evidence.[152]  I am not persuaded that the judge's construction of Mr Powell's report as to the accident was wrong. 

   [152] As to which, see ts 770.

7. For these reasons, the employer's challenge to the findings of knowledge should not be accepted.  Ground 1 should accordingly be dismissed.

Ground 2 - parties' submissions and disposition

Parties' submissions ground 2

1. The employer submitted that whilst the judge correctly referred to the relevant principles in relation to breach of duty, his Honour nevertheless failed to apply those principles, particularly in relation to foreseeability of injury.[153]

   [153] Appellant's written submissions, pars 17 - 18; WB 8 - 9; citing Taylor v Fisher [2018] WASCA 126 [32] ‑ [33].

2. The employer submitted that the judge identified the foreseeable risk, being the magnitude and type of startle response evinced by Mr Hooker, and the risk that he would suffer musculo-skeletal harm of the whiplash kind.[154]  It submitted that (1) this was wrong, as a matter of common sense, (2) in order to reach that conclusion, the judge must necessarily have applied a hindsight bias, working backwards from the fact of injury, (3) the risk of such injury was far‑fetched and fanciful, and (4) the lack of foreseeability of the injury can be judged by reference to the fact that when the alarm sounded, no one else in the room with their backs to the table suffered such harm.[155]

   [154] Citing primary decision [120].

   [155] Appellant's written submissions, pars 19 - 23; WB 9 - 10.

3. The employer also referred to the principle that in this context, the standard of appellate review is one of correctness and that in deciding upon the correct conclusion, the appellate court gives weight to the primary judge's conclusion, but must reach, and give effect to, its own conclusion.[156]

   [156] Appellant's written submissions, par 24; WB 10; citing Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205 [57].

4. Mr Hooker submitted that it is not necessary that the particular injury or its severity, or the mechanism or sequence of events causing the injury be foreseeable, as it is sufficient that the injury is one of a class or kind that the defendant should have foreseen in a general way.[157]

   [157] Respondent's written submissions, par 37; WB 27; citing Chapman v Hearse (1961) 106 CLR 112, 120 ‑ 121; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87]; Divjakoski v Boral Window Systems [2011] WASCA 134 [71]; Lightfoot [49]; Best Bar Pty Ltd v Warn [2019] WASCA 15 [42] - [43].

5. Mr Hooker submitted, in effect, that the judge correctly found, for the reasons that he gave, that a personal injury to someone was reasonably foreseeable in the circumstances of this case.[158]

   [158] Respondent's written submissions, pars 41 - 42; WB 28 - 29.

6. Mr Hooker submitted that ground 2 does not identify the nature of the error alleged.[159]  Mr Hooker submitted that the employer only challenges the judge's ultimate expression of the conclusion on the risk of injury being reasonably foreseeable.  He submitted that the employer does not identify why that conclusion was wrong.[160]

   [159] Respondent's written submissions, pars 43 - 44; WB 29.

   [160] Respondent's written submissions, pars 47 - 48; WB 30.

7. Mr Hooker submitted that the employer accepted that it may be open to find that a sudden sounding of an alarm may startle someone, and he submitted that it was then only a small step to recognise that being startled may lead to movement causing injury.[161]  Mr Hooker also submitted that there was expert medical evidence on the startle response and its potential to cause injury.[162]

   [161] Respondent's written submissions, par 45; WB 29.

   [162] Respondent's written submissions, par 46; WB 29 - 30.  See the evidence at GB 17 and ts 571.

8. Mr Hooker submitted that the fact that four of the others in the Operations Room at the time were uninjured says nothing of the foreseeability of injury.[163] 

Disposition ground 2

[163] Respondent's written submissions, par 50; WB 30.

1. The judge found (without dispute in this appeal) that the employer owed a duty to its employees to take reasonable care to avoid exposing its employees to unnecessary risk of injury.[164]  The duty includes an obligation 'to take reasonable steps to provide … a safe place of work'.[165]

   [164] Primary decision [110].

   [165] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 680. See also, generally, M R & R C Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110 [42], [155] ‑ [157].

2. Also, the parties to this appeal accepted that the Civil Liability Act 2002 (WA) had no application, and that the question of breach of duty was to be determined by the application of common law principles, as outlined in Wyong Shire Council v Shirt.[166]  It is convenient to recall the following (well‑known) passages from that case in the judgment of Mason J:[167]

   [T]he general proposition [is] that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things.  I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.  A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone (42), may nevertheless be plainly foreseeable.  Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.  Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.  In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man's response cans for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

   The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far-fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.  (emphasis added)

   [166] Wyong Shire Council v Shirt (1980) 146 CLR 40.

   [167] Shirt (47 - 48).

1. For the reasons which follow, I am not persuaded that the judge erred in his conclusion, or that the conclusion he reached could only be explicable through hindsight reasoning.

2. Reasonable foreseeability is determined objectively.[168]  Regard is had not only to what the defendant knew, but also what a reasonable person in the defendant's position ought reasonably to have known, or ought to have found out.[169]

   [168] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70].

   [169] Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [163]; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [186] ‑ [187]; Shaw v Thomas [2010] NSWCA 169 [46].

3. In considering the question of foreseeability in this case, it should be observed at the outset that the employer did not challenge the judge's findings of fact as to (1) the relevant working environment (a 'benign' office context) in which the alarm was sounded, (2) the unexpectedness of the alarm going off, and (3) the nature and intensity of the alarm.[170]

   [170] The findings are set out in (a) ‑ (e) of [85.2] above.

4. In those circumstances, it was reasonably foreseeable that a defective unit which sounded the alarm when the unit was turned on could provoke a startle reaction in employees working at their desks, if the unit was left in a place where it might be turned on behind their backs, without warning.

5. The employer also did not challenge the finding to the effect that the central table was a place to which service technicians had access and who, upon finding a gas detector unit, might switch it on for routine testing.[171]

   [171] See the finding at [85.1] above.

6. In my view, it follows that, looking at the matter prospectively[172] (1) it was reasonably foreseeable that Mr Hooker, as a member of the class of persons working at their desks on 12 March 2012, might be startled by the faulty gas detector unit being activated, and (2) it was reasonably foreseeable that it might be activated. 

   [172] See Apostolic Church Australia Limited v Dixon [2018] WASCA 146 [61] and the cases there cited in fn 92.

7. The next question, which is really the critical question for the purposes of ground 2,[173] is whether it was reasonably foreseeable that an employee's startle response in those circumstances could result in some form of musculo‑skeletal injury.[174]  So expressed, the point at issue is of very narrow compass.  It is not a case where the risk of injury depends upon 'the outcome of a complex of unpredictable events'.[175]

   [173] The employer accepted that 'it may be open to find that the sudden sounding of an alarm may startle someone':  appellant's submissions, par 21; WB 9.

   [174] 'Musculo‑skeletal' relates to the muscles and the bones (skeleton):  Butterworth's Medical Dictionary (2nd Ed), page 1118.

   [175] cf Webb v The State of South Australia (1982) 43 ALR 465, 466.

8. Although a finding of negligence is conventionally described as a finding of fact, it also involves a 'normative' or a 'value' judgment.[176]  In that context, foreseeability of a risk may be a question on which minds may well differ.[177]

   [176] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [49], [87].

   [177] Shirt (48 - 49).

9. On balance, the judge's conclusion was properly open.  It seems to me that, in this context, an employee who was startled may well turn around quickly to see the source of the alarm and to seek intuitively (if not necessarily rationally at least in hindsight) an understanding of what, if anything, needed to be done in response to the alarm being sounded.  An employee working at their desk would have no opportunity to pivot on their feet to see the source of the alarm.  An employee so startled could well, reflexively, suddenly and rapidly twist their neck around whilst remaining seated.  It is common experience that sudden and rapid twisting of the neck may lead to some kind of neck or back injury which could be described as musculo‑skeletal.[178]  I would not see this potential response with this potential effect as either far‑fetched or fanciful.  In doing so, I also take into account that the standard of care is not a low one in the employment context.[179]  Whilst I accept that the absence of a similar reaction from other staff at the time may provide some evidentiary basis for assessing the foreseeability of the risk of injury prospectively, not much can be gained from that evidence.  The happening of the accident is equally of some evidentiary value (albeit also not of great weight) as to the potentiality of the defective gas detector unit to cause injury in this particular workplace - removed from the off‑site working environment in which it is designed to operate.[180]

   [178] Even though it has no precedential significance, it may be noted that it has been accepted that an employee who was 'thumped on the back boisterously' (so the startle response was triggered by the sense of touch, rather than the sense of hearing) could or would have caused the employee to twist sharply and be productive of some bodily injury to the employee:  Hayward v George's Ltd [1966] VR 202, 205 ‑ 210.

   [179] O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, 230.

   [180] cf Webb (466 - 467).

10. My conclusion in this regard is based on my understanding of common experience.  The medical evidence referred to by Mr Hooker in his submissions is of no assistance, as it was not shown that the employer, or a reasonable person in its position, would have known of the medical evidence or ought reasonably, in all the circumstances, to have found it out.

11. It follows that, in my view, ground 2 should be dismissed.  As noted earlier, the employer no longer contends that if the risk of musculo‑skeletal injury was reasonably foreseeable, the judge erred in concluding that a reasonable response to the risk would have been to 'tag out' the defective unit (so as to show that it was not properly in operation), or to store it elsewhere than in a place where it could be picked up and activated behind the backs of office workers at their desks.  It follows, also, that it is unnecessary to address the notice of contention. 

Conclusion

1. For these reasons, the appeal should be dismissed, and the cross‑appeal should be allowed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

5 MAY 2020