By Mark Civitella, Partner and Zilke Wright, Lawyer

In Kremer v Sandfire Resources NL [2020] WADC 30 the District Court of Western Australia recently dismissed a claim for damages by an employee who suffered an injury when he fell and was injured while participating in a Melbourne Cup function held by his employer.

Background Facts

The plaintiff, Mr Kremer, was a 42 year old senior underground geological technician. He was injured when he stumbled and fell to the ground during a relay race during a Melbourne Cup Function. The function took place in a designated recreational zone at a mine site where the defendant was owner and occupier. As part of the function, a number of team-based activities were held. The plaintiff alleged that another employee, on another team, Mr Santos, tripped him from behind during a relay race in which participants raced each other across a rectangular cricket pitch with a wooden ‘hobby horse’ between their legs. The plaintiff fell onto his outstretched right arm and suffered injuries to his right shoulder and arm.

The plaintiff sued the defendant for breach of duty alleging that the defendant had failed in its duty as his employer to supervise the function and race and/or conduct a risk assessment. The plaintiff also argued that the defendant was vicariously liable for the actions of its employee Mr Santos.

The defendant denied that the plaintiff was tripped by Mr Santos and argued that the plaintiff had either fallen over his own feet or over his hobby horse.

Standard of Care

The District Court was required to determine the question of liability and more specifically, the question of whether the plaintiff was intentionally tripped by Mr Santos, such that questions of breach of duty on the part of the defendant as Mr Santos’ employer would be enlivened. His Honour Judge Troy ultimately found that the weight of evidence did not support a finding that that the plaintiff had been tripped but went on to address some of the arguments made by the plaintiff in obiter dictum.

In relation to the duty of care owed by the defendant, His Honour considered the plaintiff’s arguments at trial that the defendant, as organiser and supervisor of the function, should have known that employees would be running as fast as they could and that their risk of injury was heightened by reason of:

• competitive rivalry that had been encouraged between the teams including allowance of ‘trash talk’ and jostling;
• a failure to enforce rules of the race; and
• the fact that the race was to determine last place in the competition.

It had been suggested by witnesses to the race that there had been some light-hearted jostling and joking between the plaintiff and Mr Santos briefly before the race.

Troy DCJ emphasised that it was not an employer’s duty to safeguard a worker completely from all perils and rather the necessary evaluation was one of ‘a contextual and balanced assessment of the reasonable response to a foreseeable risk’.[i] His Honour concluded that the nature of the Melbourne Cup events were light-hearted recreational activities. He did not consider that the fact that an atmosphere of departmental rivalry had been encouraged necessarily enhanced the risk of injury. His Honour found that the light-hearted or jovial environment of the function did not suggest that there was any requirement on the defendant to specifically instruct participants not to make physical contact with each other whilst running and the nature of the event did not require a formal risk assessment process. In concluding that a reasonable employer conducting the function would not have done more than what the defendant had done, his Honour referred to cases involving an obvious risk before concluding that:

“No amount of training or supervision would have prevented one participant in this race accidentally tripping or entangling with another participant so as to cause him to fall.”[ii]

Vicarious Liability Argument

His Honour considered the plaintiff’s argument that, if it had been found that the plaintiff had been deliberately tripped, the defendant would have been vicariously liable for the actions of its employee. Troy DCJ noted that the fact that employment affords an opportunity for the commission of a wrongful act, in the sense that the employment at the mine site afforded Mr Santos the ability to trip the plaintiff, was not of itself sufficient to attract vicarious liability. His Honour considered the employment was entirely unconnected with the alleged wrongful act as both the plaintiff and Mr Santos were off-duty employees who had chosen to participate in a light-hearted recreational event.  There were no features of authority, power, trust, control or intimacy between the plaintiff and his colleague and there was no suggestion that Mr Santos in any way took advantage of his position in relation to the plaintiff such that it could be said that a wrongful act was committed in the course of his employment so as to render the defendant vicariously liable.

Concluding thoughts

The obiter comments of Troy DCJ importantly highlight that the duty incumbent on employers is not to safeguard an employee completely from all perils. The decision in Kremer offers a reminder to carefully consider the nature of the event in which it is alleged that supervision by the employer should have occurred. Consideration should be given to the question of whether the event/happening is of such a nature as to create a duty to offer specific instructions or to perform risk assessment generally or if it is a case of an obvious risk. In this case, the Court took into consideration the lighthearted nature of the function and events generally as well as the particular risks involved which could not have been prevented by the employer.

The decision emphasises that it will take more than merely being present due to the employment for any wrongful conduct on the part of an employee to be seen to be sufficiently ‘connected to’ the employment such as to ground a finding that an employer is vicariously liable for the actions of an employee.

[i] Allied Pumps Pty Ltd v Hooker [2020] WASCA 72, [12].

[ii] Kremer v Sandfire Resources NL [2020] WADC 30, [111].