By Stuart Eustice, Partner and Holly White, Lawyer

Mr McLeod was employed as an operations manager by Mainfreight Distribution Pty Ltd (employer) at a distribution warehouse. On 26 September 2014, while Mr McLeod was moving towards a forklift which needed to be moved, he stepped backwards, stumbling over a loaded pallet (pallet) and injuring his right knee.

Mr McLeod commenced an action in negligence claiming damages from his employer for personal injury. The trial judge accepted the scope of an employer’s duty to its employees extends to taking reasonable care to avoid exposing the employee to injury as a result of inadvertence. In order to assess the scope of the employer’s duty, one must identify the actual risk of reasonably foreseeable injury faced by an employee. The Court must then determine what response would have been made by a reasonable employer in respect of that risk.

The trial judge found the real cause of Mr McLeod’s injury was his own actions. Mr McLeod had a clear view of the pallet and the forklift prior to the incident and it was caused by a combination of him walking backwards and failing to keep a proper lookout. Mr McLeod’s claim was dismissed with the trial judge finding:

• the location of the pallet did not create any particular risk of injury to Mr McLeod;
• the injury was not reasonably foreseeable;
• there was no negligence in having a system which placed the pallet where it was at the time of the incident because Mr McLeod could walk around the pallets; and
• there was no negligence in parking the forklift where it was at the time of the incident.

Appeal

Mr McLeod appealed the trial judge’s decision on the grounds that her formulation of the relevant risk of injury was too narrow. He submitted that placement of a pallet upon the ground within the relevant area of the workplace created a reasonably foreseeable risk that workers might suffer injury by tripping over it.

The Court considered that were the pallets relocated elsewhere, the same remote risk that someone would step backwards without looking would have arisen and therefore the position of the pallets did not create a particular risk of the injury suffered by Mr McLeod.

The Court upheld the trial judge’s decision, highlighting that a pallet containing a load 60 centimetres high is not a small item, its presence on the floor was therefore obvious to anyone who looked and had in fact been noticed by Mr McLeod prior to the incident. Mr McLeod had given evidence that he did not turn around to look where he was going nor did he look down to see what might be behind him on the ground. He said that he had forgotten about the presence of the pallet.

This case confirms employers are not obliged to eliminate all risk in the workplace.