In a recent case in the NSW District Court, the worker was the victim of a workplace “bear hug” by a supervisor on the worksite. The supervisor came up behind the worker and put him in what was described as “sort of” a “bear hug”. As the worker turned to try to get the other man off him, they both fell to the ground and the worker suffered a fractured ankle. There was evidence that both men had participated in skylarking or horseplay on the site previously.
The worker was a labourer employed by a labour hire company, and the supervisor was employed by the company controlling the building site, which was located at Airds NSW.
The worker commenced proceedings in negligence against the company. The Court noted that although the worker was not actually employed by the company, their relationship was akin to that of employer / employee on the worksite.
The Court found that the company had actual knowledge of the risk of injury occurring as a result of workers engaging in physical wrestling at the site. The supervisor had been involved in similar conduct with this worker in the past and was the instigator of the conduct on the day of the injury. The Court found that the risk of harm was not insignificant – while the probability of injury occurring was low, the potential consequences were serious, as such conduct could result in serious injury to or even the death of a worker. It was held that a reasonable employer would have provided supervision and precautions (such as discipline) to prevent skylarking on the site.
The worker was successful in his claim and was awarded compensation.
If you have been injured at a workplace, call Tess Danjoux on 02 4626 5077 for advice about your Workers Compensation entitlements.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
