A couple of days ago we received an email from an -understandably stressed- injured worker who briefly outlined the manner in which s/he was injured at work, and who asked us if the employer is negligent or can be deemed negligent for his/her work injury.
Without going into details the worker was injured because s/he was ‘forced” to use a “more manual” form of work as his company was not repairing equipment and tools normally needed for undertaking the tasks in a “less manual” form. However, the company’s Standard Operating Procedures policy clearly outlines two different methods for undertaking the task; basically one method being far less manual than the other.
The injured worker further stated that all the tools/equipment that needed repair were tagged and placed in the office to be sent off for repairs, however they sat in the office collecting dust for months. Interestingly, and as is often the case after a workplace injury, the tools/equipment were all expediently fixed when the injured worker lodged his/her claim.
In this article, we attempted to summarise liability of employers with regards to work injuries. However, outlining these,…
Our best advise is to seek sound legal advise, and provided you have a good lawyer and a reasonable case, your lawyer should send you to a barrister to assess your chances at proving negligence for your work injury and, ultimately, the chances for succeeding in your common law damages claim, if you are eligible.
When will an employer be liable for a work injury?
Common Law Liability
Most common law damages claims are pursued on the basis that an employer is liable for the injured worker’s injuries because the injuries were caused by the employer’s:
- (a) breach of contract; and/or
- (b) negligence; and/or
- (c) breach of statutory duty (prescribed by the Workplace Health & Safety Act)
One issue is that often significant, but not a question of law, is whether the incident actually occurred as alleged. The possibilities include:
- (a) the incident was witnessed and there is direct evidence to corroborate the injured worker;
- (b) the incident was witnessed and there are different accounts;
- (c) the incident was not witnessed, but there is no evidence to contradict the injured worker’s account; or
- (d) the incident was not witnessed and there is evidence that contradicts the injured worker’s account e.g. a contemporaneous medical record.
Reversal of Bourke
This is possibly the most significant case in the last few years.
In the initial Bourke v Power P/L & Anor  QCA 225 the Queensland Court of Appeal found that if a worker is injured at work, the employer has breached its duty under the Workplace Health and Safety Act 1995. This made it difficult for employers to defend claims for damages for statutory breach of the Workplace Health and Safety Act 1995.
and WorkCover (QLD) noted the decision had a significant impact on common law claims and increased the common law claims rate.
The decision of Bourke v Power has subsequently been reversed(!), meaning that Workers must now show that an employer breached a duty to take precautions against a risk of harm that was foreseeable, not insignificant, and in
circumstances in which a reasonable person would have taken the precautions.
Whilst there is no longer a cause of action for breach of statutory duty, the standard of care imposed on an employer has always been high and WHSA and Codes of Practice are not irrelevant. A Court will still look at the “reasonableness” of an employer’s conduct.
Duty of Care
Employers’ duty to take care and to protect an employee against foreseeable risk of injury – this scope includes;
- a duty to provide a safe system of work;
- a duty to provide a safe place of work; and
- a duty to provide safe plant and equipment
In discharging its duty, the employer must have regard for an employee’s misjudgement, inadvertence or inattention. The high standard of care can be looked at on a similar basis as a teacher/student or a doctor/patient relationship. It is that high.
A duty to provide a safe system of work
The employer’s duty of care requires the employer to not only provide a safe system of work, but to establish, maintain and enforce a safe system of work.
When injury at work can be seen to have been caused by the mode of carrying out some particular activity, then it can be alleged that the employer has failed to provide a safe system of work.
- McLean v Tedman (1984) 155 CLR306
Case example – Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
A hoist which would have avoided the risk of injury was available to be used by the injured employee.
It was held that a safe system of work would not only include access to a hoist for heavy work but also a direction that the hoist had to be used and enforcement of that direction.
A duty to provide a safe place of work
An employer’s duty of care extends to ensuring the safety of the employer’s premises, any premises used in connection with the employment and pathways which are used as a regular means of access to the employer’s premises.
Further, when an employee carries out work at the premises of a third party, the employer must take reasonable steps to ensure the third party’s premises are safe.
- ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372
- Sinclair v William Arnott Pty Ltd (No 2) NSWR 748
- Dib Group Pty Ltd trading as Hill & Co v Cole  NSWCA 210 (24 July 2009)
Duty to provide safe plant and equipment
An employer’s duty of care with respect to plant and equipment extends to the exercise of reasonable care in its maintenance and repair, although it does not extend to defects in plant that the employer buys from a reputable vendor or manufacturer, where the defects were the product of the manufacturer’s negligence.
The duty requires an employer to exercise reasonable skill and care to ensure that plant and equipment is not unsafe due
to inappropriateness for a particular use.
Further, an employer must provide its employees with proper safety equipment, protective clothing and other aids or
devices as far as reasonably necessary to prevent foreseeable risks of injury.
- Lepore v New South Wales (2001) 52 NSWLR42
- Foufoulas v FG Strang Pty Ltd (1970) 123 CLR 168 at 172
- Lincoln Electric Co Pty Ltd v Taylor (NSWCA, 8 September 1981, unreported)
Instruction, training and supervision
In discharging its duty of care, initial training by an employer may be insufficient and an ongoing system of training may be required.
It is necessary for an employer to take into account the personal characteristics of the employee, is required to instruct new employees in the safe and correct operation of plant and equipment. An employer also must ensure the proper coordination and supervision of employees.
- Bux v Slough Metals Ltd  l All ER 262
- Fox v Hack  l Qd R 391
- Laybutt v Glover Gibbs Pty Ltd t/as Ba/fours NSW Pty Ltd (2005) 79 ALJR 1808
- Mambare Pty Ltd v Bell  NSWCA 332
Non-delegable duty of care
The employer cannot delegate the discharge of its duty of care to another party.
This means that a duty of care attaches to the employer regardless of personal fault on its part, as long as the employee proves that damage was caused by lack of reasonable care on the part of someone within the scope of the relevant duty of care.
- Kandis v State Transport Authority (1984) 154 CLR 672
- TNT Australia Pty Ltd & Ors v Christie (2003) 65 NSWLR 1
Case Example: In the case of TNT Australia Pty Ltd & Ors v Christie
The plaintiff (injured worker) was employed by an employment agency (Manpower Services). Manpowerassigned the plaintiff to work at a brewery operated by TNT. The plaintiff was injured when a walk-behind forklift he was using to pick up beer orders malfunctioned and moved backwards over his foot. The pallet jack was owned and serviced by Crown Equipment and leased to TNT. The plaintiff sued both Manpower and TNT. The court held that both TNT and Manpower owed the claimant non-delegable duties of care, which they breached by virtue of Crown Equipment’s failure to detect and/or repair the pallet jack. Accordingly, even though the plaintiff was working at TNT’s premises, pursuant to TNT’s
established system of work and under its direction and supervision, Manpower was held liable as the plaintiff’s employer pursuant to its non-delegable duty of care.
Breach of common law duty of care
In considering whether an employer has breached its duty of care to an employee, the following issues are pertinent:
- was the risk of injury sustained by the employee reasonably foreseeable? (foreseeability)
- if the risk was reasonably foreseeable, were there reasonably practicable means of removing the risk? (preventability)
- if there were reasonably practicable means of removing the risk, did the employer act reasonably in not adopting those means? (reasonableness)
If the risk of injury was reasonably foreseeable and the employer did not act reasonably to remove the risk, it will be found to have breached its duty of care.
A ‘foreseeable danger’ is one which a reasonable person in the employer’s position would have foreseen as involving a risk of injury to the employee arising from the employer’s conduct. It is not far-fetched or fanciful although it may still be foreseeable even if it is quite unlikely to occur.
Foreseeability is usually only an issue in cases of pure psychiatric injury and seemingly innocuous activities.
- Wyong Shire Council v Shirt (1980) 146 CLR 40
At common law, an injured employee bears the onus of establishing a reasonably practical alternative system of work to that prescribed by the employer.
Importantly, this onus may be discharged if there has been a change in the system of work since the injury.
- Green v Hanson Construction Materials  QCA 60
- Neill v New South Wales Fresh Food and Ice Pty Ltd (1963) 108 CLR 362
At common law, an employer’s duty is to act ‘reasonably’. That is, to take reasonable care for its employee’s safety, rather than to safeguard against all perils.
Accordingly, once it is established that an alternative system of work would have avoided the risk of injury, the employer can still escape liability if its response in not adopting the alternative system was reasonable.
Where it is possible to guard against a foreseeable risk of injury by adopting a system which involves little difficulty or expense, the failure to adopt such a system will in general be negligent.
- Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville  l Qd R 29
- Wyong Shire Council v Shirt (1980) 146 CLR40 at47-8
- Turner v South Australia (1982) 42 ALR 669
In assessing a particular claim, the essence of what you must consider is:
- what did the employer (or someone for whom the employer is liable) fail to do that they should have done; and/or
- what did the employer (or someone for whom the employer is liable) do that they should not have done.
Case Example: Lusk v Sapwell
The Court of Appeal set aside a judgement at first instance which awarded approximately $390,000.00 in damages for breach of duty. The plaintiff (injured worker) was assaulted by an elderly male customer while working as an optical technician.
She brought a claim in negligence against her employer after developing post-traumatic stress disorder caused by the assault. The primary judge found that the plaintiff had been left in a vulnerable position by the employer’s failure to
install an exclusionary mechanism in the workroom. On appeal, it was held that the primary judge may have focused
unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of the employer having regard to the prospect of the risk of injury. The Court of Appeal found that having regard to the very slight magnitude of the risk of a female employee being assaulted and the practical difficulties with the exclusionary mechanisms advanced, it had not been shown that the employer breached their duty to the plaintiff.
An employer is liable for the negligence of an employee where that employee’s act or omission is within the course of his/her employment.
It has been suggested in some cases that the liability of agents and servants is the same.
Accordingly, if an employee is injured by the act of a co-employee during the course of their employment, the employer will be liable for the conduct of the co-employee. Whilst vicarious liability will not extend the liability of an employer for actions of an employee that are outside the scope of his/her employment, it will extend to acts that are sufficiently connected to the employ ment even if they are in some way improper.
- Heatons Transport (St Helens) Ltd v Transport & General Workers’ Union  AC 15
- New South Wales v Lepore (2003) 195 ALR412
At common law, an injured employee must establish that the employer’s breach of duty was a material cause of the employee’s injury. Without this causal link, an employee’s claim against his/her employer will fail. In general, causation will be established if it appears that the employee would not have injured him/herself had the employer not been in breach of its duty.
As a practical example, an employee may establish that an employer breached its duty of care by failing to provide certain training that a reasonable employer would have provided. To establish causation, the employee must go on to prove that, had the relevant training been provided, they would not have been injured.
- March v E & MH Stramare Pty Ltd (l991) 171 CLR506 at 514
A claimant’s behaviour must exceed mere inattention or inadvertence before it is considered to be contributory negligence.
A court may decide on a reduction of 100% if the court considers it just and equitable.
There is now also a presumption of contributory negligence if the person who suffers injury is intoxicated.
- Czatyrtio v Edith Cowan University (2005) HCA 2005
- Reck v Queensland Rail  QCA 228
A legal case discussion
(sorry image is missing)
Steps removed from right, Claimant stepped through door and fell to the ground, sustaining significant upper limb injuries. Is the Employer negligent?
- Claimant was in charge of the crew that removed the stairs.
- Claimant instructed the crew to remove the stairs.
- Claimant assisted the crew to remove the stairs.
Is the Employer still negligent?
Is further information required?
Further evidence revealed that:
- Stairs were dismantled at 8.30 pm and accident occurred at 9.45 pm.
- There were no systems in place prior to the accident for doors to be locked, tagged or warning signs displayed.
- Post accident, doors are secured, tagged and warning signs displayed.
Is the Employer liable?
Relevant that system changed post accident?
How much in percentage?
Work Health and safety legislation
Harmonised WHS Laws (NSW, QLD, Cwlh, ACT, NT)
Work Health and Safety Act, Pt 5
Occupational Health and Safety Act 2004, Div 4, 5, 6 and 7
Occupational Health, Safety and Welfare Act 1986, Div 2 and 3
More useful reading
[Posted on behalf of workcovervictim]
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