School not liable for cleaner’s after-hours injury

A cleaner (CD) who was employed by a third party cleaning company and who worked at a government school in NSW has unsuccessfully sued both her employer and the State of NSW in relation to an injury she sustained falling over a box.

The cleaning company was sued for the workplace injury. The State of NSW was sued:

• as the occupier of the school; and
• for being vicariously liable for the acts of its staff in relation to the injury.

The facts

In 2005 CD was cleaning a classroom when she fell and injured her right knee. She was walking through a classroom which was being used to store items for a fete to be held later that month and was alone at the time.

CD contended that the room was hazardously cluttered with boxes, that the clutter was the reason she had fallen and that the boxes should have been removed by either her employer or the State as a part of their duty of care to provide her with a safe working environment.

The original decision

The case was first heard in the District Court. CD argued that:

• her employer was required by law to provide a safe place and system of work and they had failed in this obligation; and
• the State was liable for not removing the boxes when they created a tripping hazard.

The primary judge held that neither the State nor CD’s employer were negligent, nor had they breached their duty of care.

It was further held that CD had caused her own injury by failing to navigate her way around a protruding box in the classroom.

On appeal to the Supreme Court: the employer’s liability

In the Supreme Court the judges unanimously agreed with the findings of the District Court – that CD had caused her own fall by not taking reasonable care of herself.

The Court reiterated that the employer owed a non-delegable duty of care to provide a safe place and system of work, and that this duty included taking steps to avoid the risk of injury to workers in the workplace. However, it was held that this duty was not breached because:

• cleaning a classroom is not an inherently dangerous activity;
• the employer had a practice of sending a supervisor to visit the school monthly to ensure the workplace was safe for workers, and the Court found this to be sufficient; and
• the box was only in the classroom on this particular day for temporary storage, and therefore the employer could not have been aware of its existence and a possible need to remove it unless specifically informed by someone.

Therefore it was held that the employer was not required to take precautions to avoid the risk of injury in those particular circumstances. The Court heard evidence that CD had navigated around the box successfully five times before without falling and injuring herself.

This was found to be evidence that in the sixth case, CD had merely misjudged where the box was and had caused her own injury.

The State’s liability as the occupier of the school

CD contended that the State was liable for a breach of duty of care by failing to remove the hazardous boxes. The Court found that the State had not breached this duty, irrespective of whether or not the stacked boxes constituted a tripping hazard.

CD also contended that the State was vicariously liable for the actions of its employees in their failure to safely stack the boxes in a way that would leave a clear and unobstructed pathway through the classroom. The Court dismissed the claim stating that even if the State had instructed its employees (i.e. the teachers or groundsmen) to stack the items in the classroom in a certain way, this would not have avoided the risk of injury.

The State owed a duty to CD to remove obvious and foreseeable risks from the workplace that would cause significant injury. CD had to initially prove that the risk of tripping over the box was ‘not insignificant’ and, secondly, that a reasonable person in the position of the State would have taken precautions not merely to address the risk of stacked boxes causing injury, but also to address similar risks.

The Court of Appeal found that the State:

• did not have a duty to remove all tripping hazards from the workplace;
• could reasonably assume that adults in the workplace would take reasonable care for their own safety and not expect premises to be free from obvious hazards; and
• acted reasonably in not removing the boxes from the classroom as a reasonable person in the State’s position could expect individuals to navigate around them without injury, as CD did on five other occasions.

Therefore, the Court found that the State was not liable for the injury of CD.

A reminder for schools

This case demonstrates that a hazard-free or risk-free environment is not a realistic expectation for a school. There will always be tripping hazards, for example just the existence of stairs can be a tripping hazard. The important message for schools is that effective risk assessments and a system of rating risks can ensure that a school is removing risks that may result in liability if injury occurs.

Schools may, when engaging contractors and sub-contractors, be jointly responsible for the health and safety of the workers with the other employers.

Schools should be aware that where responsibility for the safety of third-party workers is shared with their employer, a review of the nature of the activity or work to be performed should be completed to determine whether or not the school has the potential to control all or some of the aspects of the work.

As this case study shows, a risk must be ‘not insignificant’ and something that a reasonable person in the school’s position would have taken precautions to prevent in order for the school to be compelled to act. This is where risk assessment and ratings can identify risk areas that need to be addressed and others that can simply be left to the reasonable care of individuals to navigate.