All in good fun: Company vicariously liable for injury resulting from skylarking supervisor

Enjoying the company of your colleagues is something most people hope to find in the workplace. It can make work much more enjoyable and lead to lasting friendships. However, fun in the workplace can cross a line when it takes the form of dangerous skylarking or roughhousing.

Dangerous behaviour by colleagues can pose a serious risk to work health and safety and can breach the obligations that an employer owes to its workers and employees owe to each other. Where accidents and injuries occur, the results can be life altering for workers and very costly for employers, as demonstrated in the recent decision of Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group [2020] NSWDC 371.

In that case, the worker concerned was a construction labourer employed through a labour hire firm. He was sent to work at a site under the direction and control of TRN Group (the Company) in Airds, NSW.

After lunch one day in April 2016, the worker was returning to his duties when the site supervisor, in an act of skylarking, wrapped the worker in a bear hug. The two lost their balance and fell. The supervisor landed with his weight on the worker’s leg and ankle.

The worker felt immediate pain and was assisted to a lounge on site where first aid was administered. The worker’s condition worsened and the supervisor drove him to hospital. At the hospital, the worker, who was in extreme pain, was given pain killers and his ankle was x-rayed.

After the x-ray, while they were waiting for the results, the supervisor provided the worker with a completed incident report. The supervisor told the worker they should record that the incident was an accident so they wouldn’t get in trouble. The supervisor read the contents of the incident report to the worker – he had written that the fall was the result of the supervisor tripping and grabbing hold of the worker in an attempt to break his fall. The worker signed the incident report, even though its contents was untrue.

The hospital x-rays showed that the worker had broken his ankle in the fall. He subsequently required three surgeries and underwent physiotherapy and rehabilitation. However, he was unable to return to his pre-injury condition or to his pre-injury role in the construction industry. During the course of his rehabilitation, he was advised by a rehabilitation provider to pursue employment in other industries. After a period of workers compensation payments, followed by light duties, the worker eventually gained employment in the security industry as an alarm monitor, a primarily sedentary role.

Despite the surgeries and other treatments, the worker never fully recovered from his injury and continued to suffer pain and restricted movement in his ankle. He eventually returned to the gym, but was forced to modify his exercises to account for his injury. The worker also suffered from significant scarring and scar sensitivity.

As a result of his injury and the ongoing impact it had on his career and his life, the worker brought a claim in negligence against the Company alleging that it had breached its duty of care to him in the workplace.

The worker argued that the Company had a duty to provide competent staff, a safe system of work and adequate supervision. The worker claimed that the Company failed in this duty because it knew about the supervisor’s skylarking behaviour and failed to properly train or discipline the supervisor for his conduct.

The Court ultimately found in favour of the worker noting,

"It is well settled that an employer’s duty includes the removal of a source of danger to an employee posed by another employee who through his or her habitual conduct, poses a source of danger through skylarking or horseplay." (at [248], references removed)

The Court found that the Company had actual knowledge of the risk of the supervisor’s skylarking because he had been involved in similar conduct with the worker in the past, and was the instigator of such conduct. Further, the supervisor was the Company’s representative on the site and therefore his knowledge was the Company’s knowledge.

The Court found the Company vicariously liable for the worker’s injury because the skylarking conduct that caused the injury was instigated by the Company’s own supervisor, and the conduct was thereby impliedly authorised by the Company.

The Court order the Company to pay $662,102.00 in damages to the worker for non-economic loss, past and future economic loss, past and future superannuation, and past and future out-of-pocket expenses.

Lessons for employers

Employers have a duty of care to provide competent staff, a safe system of work and adequate supervision in the workplace. This includes ensuring that supervisors understand appropriate standards of conduct in the workplace, both from themselves and from other workers.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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