Employer not liable for accidental stabbing
by Aaron Clark
In the following alert, Senior Associate Aaron Clark discusses the recent decision of Umberto Polizzi v Hervey Bay Boat Club Inc (M1411/13) in which a bar attendant sustained a penetrating wound to his abdomen by trying to prevent the fall of a wine glass with his stomach.
On 17 March 2012, Mr Umberto Osvaldo Polizzi (the Plaintiff) was working as a bar attendant at the Hervey Bay Boat Club (the employer). The Plaintiff, during the course of preparing a wine bucket, bent down to the servery fridge and took out a chilled wine glass. The Plaintiff transferred the glass from his right to his left hand and in trying to place the glass in the bucket of ice, the glass slipped from the Plaintiff’s grasp and he instinctively moved his stomach forward to break the fall of the glass. A glass shard approximately 12 mm at the base with a tapered razor sharp end penetrated the Plaintiff’s stomach causing injury.
The Plaintiff in this case argued the employer knew or ought to have known that glasses were breaking on a daily basis making the risk foreseeable and not insignificant. The Plaintiff’s case was that there were a number of reasonable countermeasures available to the employer, arguing that:
- the employer should not have chilled their wine glasses which would have removed the risk of condensation forming on the glass;
- the employer should have placed rubber matting on the benches;
- a directive should have been given not to try to catch falling glasses; and
- the employer should have used toughened or tempered glass or alternative, polycarbonate drinkware to ordinary annealed glassware.
The Court did not accept the Plaintiff’s evidence that 15 wine glasses on average would break each day, or that wine glasses would slip from the Plaintiff’s grasp 2-3 times per week. Instead, the Court preferred the evidence of the Defendant that there were on average five wine glass breakages per week and also noted that the same wine glasses had been in use for the past 17 years without incident. The Court found there was insufficient evidence the employer should have been alerted to a risk of injury.
Expert evidence was called by both the Plaintiff and the employer to examine the breakage patterns of a number of different types of glasses (both annealed and toughened) and polycarbonate drinkware available on the market. The glasses were subjected to both drop testing and compression testing and it was ultimately found that it was not possible to get consistent results on both the drop testing and the compression testing.
The Court found:
- there is no way a purchaser of the products could be satisfied they were getting a uniform product;
- the “splines” of the toughened glassware were not dissimilar to the splines produced and which penetrated the abdomen of the Plaintiff;
- whilst plastic drinkware would have prevented the injury, it was not a reasonable countermeasure for the employer to implement, as plastic would appear cloudy after substantially shorter use, was more amenable to scratching and would be met with resistance from patrons. In this vein, the Court noted it was not a high risk venue requiring the use of plastic drinkware;
- it was not reasonable to require the employer to provide rubber matting in all areas where a glass breakage could occur; and
- a warning not to try to prevent a falling glass would be simply too difficult to enforce given that, in many cases, to do so is instinctive.
The Court adopted the evidence of one of the experts where it was stated:
“Handling wet glass is an action that would be very difficult to remove or reduce significantly in the hospitality industry. There are many items that are glass (or ceramic – which has similar properties) including cookware, dinnerware and beverage containers that cannot be replaced with plastic. There are many circumstances when these items may become wet (eg. condensation, spillages or after washing) and in many locations on licensed premises (eg. bar areas, cold storage, patron dining and drinking areas). If this countermeasure was to be implemented in all locations where accidents could occur it would be prohibitively costly and cumbersome”.
Take away points
- While the Plaintiff did not establish the breakage rates were enough to alert the employer to the risk of injury, this decision is perhaps more important in highlighting the reasonableness that is required in the response by an employer.
- Courts will pay attention to the business activities and size of the undertaking of an employer along with the cost and inconvenience in determining the reasonableness of proposed countermeasures.
- Courts take a common sense and practical approach to the issue of a breach of duty. It remains a matter for the Plaintiff to prove the proposed countermeasures are reasonable having regard to those factors.
For more information or discussion, please contact HopgoodGanim Lawyers' Insurance & Risk team.