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The Supreme Court of Victoria recently awarded an injured worker damages of $688,000 for pain and suffering and economic loss, for an injury where the employer knew of a trip hazard and took no steps to remove it.

The case of Kalos v Goodyear & Dunlop Tyres (Aust) Pty Ltd & Anor [2016] VSC 715 involved a customer service representative who tripped and fell on a metal plate protruding from the floor of a corridor at work. The injury to her right shoulder was considered serious on the grounds that the Plaintiff:

  • required surgical intervention on two occasions and a manipulation
  • required extensive ongoing conservative management
  • continued to suffer pain, restriction of movement and dysfunction affecting the right shoulder
  • was incapacitated from her pre-injury employment and from a range of domestic activities
  • continued to require painkilling analgesic medication, and
  • suffered anxiety and depression.

The issue before the Court was whether there was any negligence on the part of the employer, Goodyear & Dunlop Tyres Australia Pty Ltd.

The Plaintiff's case was based on three main arguments:

  • The employer knew a screw in the metal plate was missing, as it had been previously reported, and that caused the metal to become loose.
  • Three days before the incident in question, the employer removed a pair of doors from the corridor. The Plaintiff argued that the employer failed to remove the plate when removing the doors.
  • The employer did not have an adequate system in place for inspecting and maintaining the floor or for identifying hazards.

The Court's findings on negligence

The Court accepted that the employer knew about the protruding metal plate. It was found that an employer witness, to whom the protruding plate had been reported, was a witness of truth and her evidence that the employer, vicariously, had knowledge of the protruding plate was also accepted.

The Court was also made aware that the plate was covered with tape in the days after the incident occurred and later removed. It accepted this as evidence that the protrusion was the cause of the Plaintiff's injury.

The Court held that the employer was negligent in failing to remove the plate when it knew of its existence. Also, the cost of removal was quite low and could have easily been attended to by the employer.

On the issue of inspection and maintenance, the Court found that "an employer acting reasonably would have implemented at the premises a system for regular inspection and maintenance of the floor". Therefore, the employer was found to have been negligent in having a system that catered for the "reactive repair of faults in the floor after they became obvious, and not to implement a complementary proactive system of inspection and maintenance of the floor"—although the Court could not definitively conclude that this negligence caused the injury.

The Court ultimately awarded damages in the sum of $688,000, consisting of:

  • $250,000 for pain and suffering damages
  • $230,000 for past loss of earnings, and
  • $208,000 for future loss of earning capacity. 

Implications for employers

When considering whether an adverse finding in negligence may be made in trip and slip incidents, a self–insurer should establish early on whether it has taken all reasonable steps to eliminate the risks or hazards in the workplace, especially if those risks were previously brought to its attention. Importantly, early document identification and witness interviewing would assist the self-insurer to make an early assessment of the potential risks of running a trial to hearing.

An employer should also have a proactive system of inspection and maintenance in place to avoid incidents occurring in the first place.

The sum awarded for pain and suffering is also informative, providing a comparable verdict for operated shoulders.

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