Australia: The surprising cost of a piercing noise – The appeal and damages

Startled by a loud noise – the appeal

In October 2018, Michael Hooker, a draughtsman employed by Allied Pumps in Welshpool was awarded damages of nearly $2M following an incident that had occurred at work when he was startled by the alarm of a faulty gas detection monitor.

His case was taken on appeal by the employer and on 5 May 2020, the Court of Appeal handed down its decision refusing the employer's appeal.

Quantum issues

Two features of this claim are of particular interest to damages lawyers. The first, and the one that we focused in a case summary published following the original decision of Judge McCann in the District Court, was the assessment of damages. It was just one of those cases where the level of trauma, namely turning around quickly in surprise at a loud noise, did not seem in any way proportionate to the consequences, which included a fusion of the lumbar spine, all of which resulting in years during which time Mr Hooker was unable to work at all.

However, the theory that underpins the awarding of damages is that you take the worker as you find him (or her) and therefore, if in a particular case the consequences appear to be entirely disproportionate to the injury, an award of damages on the basis of those consequences will still be appropriate if the court is convinced that this is what actually happened to the claimant.

Liability

The other issue likely to be of interest to damages lawyers, and no doubt others, including employers and insurers, is the fact that we are talking about a liability finding based on no more than a loud noise. Of course there is more to it than that, but first reactions can be an interesting guide to the evaluation of reasonableness, which is the concept at the heart of damages law. The proposition that an employer could be liable for $2m in damages for such consequences, when all that has happened is that a device that could easily fit into the palm of your hand was left on a table at a workplace, accidentally set off, and due to the loud noise emitted, startled those working in the room, would be a surprise to many.

In this case, the only feature of the judgment in the District Court that was taken on appeal was the decision on liability. Although it would be easy to form at least a superficial opinion that the quantum of damages seemed excessive, the decision of Judge McCann was properly based upon the expert medical evidence verifying the causal link between what appeared to be a relatively minor sudden physical movement and the profound physical limitations that ensued.

Foreseeability

The case before the Court of Appeal focused primarily on the issue of foreseeability. In broad terms, the proposition is that in order for a party to be liable for damages, it must be possible to say that the party should have foreseen the consequences of the act or omission that has caused the loss.

The question here was, what consequences would an employer need to foresee from circumstances in which a defective device was left on a table in a workspace and which could with minimal provocation, emit a sudden piercing noise? The argument of the employer was that surely it would not be expected that an employer would foresee the extremely severe physical consequences that had evidently affected Mr Hooker.

In his decision in the District Court, Judge McCann had expressed the opinion that "the magnitude and type of startle response evidenced by the plaintiff was reasonably foreseeable, as was the risk that he would suffer musculoskeletal harm of the whiplash kind".

Although the employer was prepared to concede that a startle response could be foreseen, it argued that there was no sufficient basis for the finding of the judge that musculoskeletal harm could be foreseen.

The Appeal

Despite some differences between on the one hand Murphy JA, and on the other, Buss P and Vaughan JA as to the means by which the conclusion might be reached, the decision of the Court of Appeal on this issue was that all that was necessary was for an employer to be able to foresee that some injury may be sustained as a result of such an incident occurring and that the precise nature or extent of the injury or mechanism by which it occurred was not the question. However, the Court of Appeal disagreed with the finding of Judge McCann that a musculoskeletal injury could be foreseen. Because of that conclusion, the employer's appeal on the question of the judge's finding on foreseeability was capable of being upheld save for a notice of contention filed in relation to the appeal on behalf of Mr Hooker which was to the effect that even if the judge had been incorrect in his conclusion that a musculoskeletal injury could be foreseen, all that was necessary to establish foreseeability was the ability to foresee some injury. With that, the Court of Appeal agreed.

The employer had raised a further ground of appeal that became relevant in the event of the decision of the Court of Appeal on the ground foreseeability, namely that even if an injury was foreseeable, the judge had erred in law in finding that the employer had breached its duty of care towards Mr Hooker. The essence of this ground of appeal was that if the only injury likely to result from such an incident was something very minor, then it would be unrealistic to expect the employer to have taken action to eliminate this risk.

The employer's argument was based in part on the decision of the Court of Appeal in Queensland in the case of Jenkin v Dalrymple Shire Council in which it was stated in the judgment of Pincus JA "if 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". A distinction however was drawn between the Dalrymple case and the case of Mr Hooker in that in the former, there was real question as to whether any alleviating action was possible, whereas in Mr Hooker's case, the court concluded without any difficulty that measures were available which would have alleviated the risk of this occurrence.

Ultimately therefore, the Court of Appeal had little difficulty in concluding against the employer on this issue, that in failing to do anything to prevent the risk that had been identified, the employer was in breach of its duty of care towards Mr Hooker.

That therefore concluded the appeal with the outcome largely unchanged, reminding us, if we needed to be reminded, that the degree to which the physical consequences of a minor trauma seem unlikely to a layman will be of little assistance in a dispute with respect to damages, if the relevant causal connection is accepted by medical experts.

Similarly, what might on one view be described as a risk of only very minor harm in the workplace, will nevertheless be regarded as involving a breach of the employer's duty of care if negligence can be identified, the harm could have been foreseen and something could without great difficulty or expense had been done to reduce the risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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