KREMER -v- SANDFIRE RESOURCES NL [2020] WADC 130
On 2 November 2015, the Defendant company, Sandfire Resources, hosted a Melbourne Cup event at their DeGrussa copper and gold mine some 900km North East of Perth. As part of this event, the employees were encouraged to engage in various team activities. The final such activity was a relay race in which the participants were required to run around a cricket field with a wooden ‘hobby-horse’ between their legs. The Plaintiff, Mr Kremer, was a participant in this race and alleged that as he and another co-worker were rounding a left-hand turn, the co-worker tripped him from behind, causing him to fall on his outstretched arm and suffer injury.
It was alleged by the Plaintiff that the Defendant was negligent for its failure to provide adequate supervision of the attendees, failure to provide adequate supervision of the race, and failure to conduct any or any adequate risk assessment. The Plaintiff further alleged that the Defendant was vicariously liable for the negligent actions of the co-worker who tripped him.
The operative issue before the court was whether the co-worker intentionally or otherwise tripped the Plaintiff, or if he merely fell over his own feet or his wooden hobby-horse. The court was presented with many various accounts of the incident from multiple witnesses, each with varying degrees of accuracy and credibility. The judge, Troy DJC, was required to make a determination of the facts in the face of conflicting evidence. The principle the judge needed to consider was whether the evidence in favour of the Plaintiff went beyond reasonable speculation and guesses, and whether he was actually persuaded as to the probability of a fact being true.
He said “The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. No court should act upon mere suspicion, surmise or guesswork in any case.” In personal injury cases, the ultimate burden of proof rests with the Plaintiff to prove that the injury suffered occurred as a result of the Defendant’s conduct.
With this in mind, the judge concluded that the evidence before him was not strong enough to persuade him that the Plaintiff had been tripped. Multiple witnesses said that he was not tripped, the Plaintiff never made any assertions to friends that he was tripped, and he merely recorded that he had ‘fallen’ on his workers’ compensation claim form.
In the absence of being tripped, the Judge found that the Plaintiff did not have a case against the Defendant, saying that the Defendant had done everything that could be expected of a company organising such an event. No amount of training or supervision would have prevented the injury from occurring.
Furthermore, the judge found that even if the co-worker had tripped the Plaintiff, the Defendant would not have been vicariously liable for the actions of the co-worker. This is because the act of tripping the Plaintiff during the event was entirely unconnected to the co-worker’s employment.
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