Duty of care to employees in Australia
In Australia, employers owe their workers a duty of care to take reasonable steps to prevent a foreseeable risk of injury.
In this article we explore two (2) recent cases, considering breaches of duty by employers to workers, resulting in injury.
These decisions touch on three (3) of the basic responsibilities of employers to employees, often lacking in workplaces.
Facts
The Plaintiff, Ms Nkamba, was employed by the Defendant, Queensland Childcare Service Pty Ltd.
While setting up an activity yard at the Defendant’s childcare centre, the Plaintiff walked on a small block of lego which was inadvertently situated in a covered play area. Her ankle inverted and she fell.
Court Hearing
The judgment in this case opens with this irrefutable observation – “Generations of parents have admonished their children to put away their building blocks lest someone stand on them”. The Plaintiff no doubt agreed.
The main issues in dispute at trial were:
- How the block came to be there; and
- Whether defective lighting in the area was contributed to the incident.
At trial, the Plaintiff was relentlessly cross examined as to how the incident occurred. The Defendant attempted to establish that the manner in which the Plaintiff was setting up for the day was causative of the incident.
The Court found in favour of the Plaintiff and awarded damages of $197,000.
The Court held the Defendant breached its duty due to the factual finding that the block was already on the floor of the play area from the night before due to the Defendant’s employees’ failure to properly pack the play area in accordance with the Defendant’s policy or system in place to do so.
The Court considered the lighting issues were irrelevant because the foreseeable risk was the untidy play area and that the lighting was an alternative or additional source of risk.
Facts
The Plaintiff was a very experienced farm hand and machine operator. In the course of his employment with Morona, his foot slipped into a field bin used to store rice. He suffered an amputation of his lower left leg.
The field bin, manufactured by Ahrens, had an internal electric auger which sucked rice grains from the bottom of the bin and poured the grains into a waiting truck. Employees of Morona would climb into the field bins to agitate the contents with their feet to prevent the rice from sticking to the walls of the bins.
It was alleged that the incident occurred due to a new design of Ahrens’ field bins which resulted in mesh guarding being no longer sufficient to prevent an object (i.e. the Plaintiff’s foot in this instance) contacting the auger operating inside the field bins.
Comments
An employer cannot credibly argue an employee is responsible for his/her own misfortune if there is limited prospect in undermining the employee’s version of events and there is no prospect of proving that the employer’s own work systems and policies were not observed.
Also, an employer will always owe a non-delegable duty of care to an employee, and thus should always take steps to review systems and inspect plant and equipment.
Three (3) basic employer responsibilities to employees
These case examples touched on three (3) basic responsibilities that employers should observe to prevent injuries to workers. They include:
- Maintaining and enforcing safe systems of work.
- Providing safe plant and equipment.
- Detecting and addressing hazards in the workplace.
Each case is different and there are where a workplace injury could have been prevented, there are usually several measures an employer could have implemented.
Considerations
Injured workers should seek legal advice about their potential rights and entitlements, following a workplace incident or when their workers’ compensation claim is coming to an end.
The onus on employers to take steps to prevent injuries to workers is significant and serious. The Courts are generally reluctant to impose a finding of contributory negligence on a worker, who is simply doing their job and complying with the general duties of their role.
If you require advice regarding a workplace injury, contact our office for an appointment. Denning Insurance Law acts for workers and employers in workers’ compensation claims.
