Tuesday 9th June 2015
This worker’s stumble cost $1m.
Do you have measures in place to
In today's Health & Safety Bulletin:
- Case law: Construction company faces damages payout for fall at site
- What you can do to prevent it happening to you
The different aspects of a negligence claim against your business can spiral out of control quickly.
There’s the out-of-pocket expenses the worker faces immediately after the injury. The costs of recovery and treatment.
And there’s the continuing costs of rehabilitation and occupational theory, which could take….well, how long is a piece of string?|
Don’t forget the worker’s lost earnings – during the time they spent laid up, or, if the injury is very serious, all those years to come where they may struggle to find any appropriate work.
Then there’s the non-economic loss of an injury. A worker can experience substantial pain and suffering for years to come.
And remember the superannuation – if they lost the opportunity to work, they’ve lost that too.
I didn’t even the mention the cost of domestic assistance and care. If the injury robbed a person of their mobility and capacity, that will be a whopper.
As will the legal costs.
Getting stressed just thinking about it? I am. Even if you aren’t made to pay damages on all of these fronts – you’ll suddenly be looking at a seven-figure bill, or close to it.
That’s the situation one NSW construction company found themselves in after an incident on-site in 2008. Read on…
Case law: Construction company
faces damages payout for fall at
The case of Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Limited (t/as Plastamasta South Coast) (No. 5)  NSWSC 648 began when a delivery driver, Arthur Fogg, dropped off a load of building materials to a showground where a pavilion was being renovated.
Mr Fogg claimed he was directed by the site foreman to unload some of the materials directly from the back of the truck onto the pavilion structure itself, by reversing the tray of his truck over a recessed concrete step.
He said that he raised concerns about the suitability of the unloading location, which was an uneven surface. As he was manually lifting heavy construction materials, he tripped on a small lip of concrete and came down hard on his ankle, seriously injuring it.
He commenced proceedings for negligence against the head contractor at the site, the subcontractor he had delivered to, and his employer.
What was the outcome?
The Court accepted Mr Fogg’s account of the accident. In evaluating the respective liability of each party, it found that:
- The head contractor was not liable. It did owe a general duty to take reasonable care to avoid or minimise foreseeable risks of injury, but liability for aspects of construction work may be developed to independent subcontractors, provided that subcontractor is not negligently chosen.
- Mr Fogg’s employer was not liable. It could demonstrate that it had provided appropriate training and deduction to its injured employee, and were not responsible as employer for the site foreman’s instructions.
It was held that even in the unlikely event that the foreman was unaware by the risks of unloading onto the uneven surface, it was a plainly foreseeable and “not insignificant” risk that could have easily been eliminated.
- The subcontractor owed Mr Fogg a non-delegable duty of care, and was liablefor his injury.
In this case, there was a specially built loading dock which was temporarily obstructed at the time Mr Fogg arrived with the delivery. The judge suggested a more reasonable step would have been to wait until the loading dock was available.
Given his training and induction, the judge found that Mr Fogg should have stood his ground and not agreed with the foreman to unload in a place he recognised was unsafe. He was found to have made a minor contribution to the situation.
However, the subcontractor was still ordered to pay nearly $1 million in damages arising from Mr Fogg’s economic and non-economic loss.
The implications for your business
Although the contractor chains is situations like this can get very complicated, the basic principle is simple.
If you exercise a degree of control over a work process, you have an obligation to take reasonable care to prevent foreseeable risks of injury to those engaged in the process.
This is particularly important to remember when you have visitors to your premises or your site who are going to be subject to your instructions. To avoid being liable, it’s essential that you:
- Identify the hazards in your workplace, particularly from the perspective of a contractor or new worker. Individuals who have worked for some time on a site will not always be the best judges of a hazard, as they may have modified their work to avoid them.
- Assess their potential to cause harm. You need to evaluate how likely it is that exposure to a hazard will cause harm, and the severity of the harm that is likely to result.
- Control the risk by eliminating the hazard or effectively minimising it. By constructing a specific loading dock at the pavilion for safe unloading, this site in today’s case had introduced an effective control – but only if was used!
- Ensure that all personnel under your direct control are clearly (and regularly) trained and inducted to make use of the control measures, where necessary.
If you’ve got your copy of the Health and Safety Handbook, there are specific and detailed chapters that deal with Contractors, Hazard Identification, Hierarchy of Control, Risk Assessment, and Training and Induction.
- Perform a due diligence check on a potential contractor, and induct them into your workplace appropriately.
If not, it might be time you got your hands on (or logged into) this essential business resource.
Editor, Health & Safety Bulletin
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