Proving you have been exposed to an unreasonable safety hazard can be tough

Proving-negligence-workcover

You may recall the recent case of an electrical apprentice who was told to use razor sharp off-cuts as a ‘workaround’ to protects electrical insulation during construction, and that this practice was deemed reasonable, even though safe commercially available products are available specifically for the task. As a consequence of using the razor sharp off-cuts, the apprentice severed his ulnar (finger) nerve….

This poor injured worker had to go as far as to appeal a supreme court decision – helloooo- to prove that the employer had indeed breached its duty to provide a safe system of work and its failure to do so has caused the injury and loss suffered to this injured worker, who was eventually awarded $156,000 (after deduction of the workcover benefits already received).

Proving you have been exposed to an unreasonable safety hazard can be tough

According to a Supreme Court (held in March this year) the use of razor sharp off-cuts as a workaround to protect electrical insulation during the construction of a QLD  Palm Beach condo development, was supposedly a “reasonable building technique” for which an electrical contractor employer bore no responsibility for the injury to a 28-year-old electrician apprentice. Wow!

Thanks God, the injured worker (and his lawyer) appealed this rather bizarre decision.

The injured worker argued that the “workaround” – used instead of a safe and commercially available product designed specifically for the task – exposed him to a real risk of avoidable injury against which no injury prevention measures had been designed or even suggested.

The appeal judges thankfully agreed. They ruled that the injured worker had indeed been exposed to an unreasonable safety hazard that resulted in him severing his ulna nerve when his left arm accidentally bumped one of the exposed sharp metal channels.

In doing so,the injured worker defeated the electrical company’s argument that its “improvisation” exemplified the exercise of all reasonable care in the circumstances.

The employer nevertheless dared to argue  that even if safety measures had been implemented “it is probable that they would have not prevented” (the injured worker’s) 2008 injury and therefore it should not be held responsible. (WTF!)

the appeal court rejected the employer’s ridiculous argument, and accepted the first-year apprentice’s version that he would have done “his level best” to adhere to whatever steps were specified, especially since he had only been on the job for just four or so weeks and was keen to keep his job.

The appeal judges concluded that the primary judge had erred indeed: the employer had breached its duty to provide a safe system of work and its failure to do so has caused the injury and loss suffered.

The Court of Appeal awarded the injured workers damages largely in accordance with the trial judge’s assessment, after deduction of the amount WorkCover benefits already received, at $156,000.

You can read the full text of the legal case here: Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 Brisbane Muir and Morrison JJA and Margaret Wilson J 20/09/2013



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One Response to “Proving you have been exposed to an unreasonable safety hazard can be tough”

  1. Congratulations to the injured worker for not give up his rights!

    It is even harder to prove that workcover exists we also don’t know how much money this injured worker paid to his Lawyer.

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