What is the law surrounding ‘horseplay’ in the workplace?
In a recent case, the District Court of New South Wales considered a playful “bear hug” that resulted in an employee’s fractured ankle and three subsequent surgeries. The plaintiff worked as a labourer at a construction site. One day, just after lunch, the defendant came up behind the plaintiff and playfully engulfed him in “sort of a bear hug”.
The plaintiff turned around in surprise, causing both to fall to the ground. The plaintiff felt immediate and extreme pain in his right ankle. After x-rays were completed at the hospital, the defendant brought the plaintiff a completed accident report form. The defendant told the plaintiff to “play down the issue to make it seem like it was an accident” so that insurance would cover the injury. The plaintiff agreed but later acknowledged that he had taken medication and was incapacitated at the time of signing the document.
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The court accepted that the form falsified the events of the incident and found that the injury was instead caused by the defendant’s “horseplay” and “skylarking”.
On advice from his orthopaedic surgeon and given he could no longer stand for more than 15-20 minutes without discomfort, the plaintiff moved into a sedentary role, earning less than he did before the incident. The plaintiff could return to the gym but mainly performed seated exercises, reducing leg exercises to once per week or fortnight. The defendant alleged that the plaintiff had exaggerated the severity of his injury to continue to receive workers’ compensation. The defendant hired a private investigator, who followed the plaintiff to the gym but could only produce a “very limited recollection” of the plaintiff’s workout.
Judge Scotting accepted that a distinction should be drawn between the “controlled environment of the gym” and the work of a labourer, finding that the former did not demonstrate the plaintiff was fit to return to his pre-injury role.
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Moreover, Judge Scotting found that the employer fell short of his duty of care to remove the danger posed “through skylarking or horseplay”.
Finding the plaintiff’s injury was caused by the defendant’s negligence, the court awarded the plaintiff $662,012 in damages, including future economic loss and loss of superannuation.
