 |
Tuesday 1st September 2015
|
|
|
How these companies got on the
hook for $2 million in damages…
and how they got off
|
In today's Health & Safety Bulletin:
- Businesses successfully appeal damages for worker’s slip on a step
|
 |
Dear Reader,
We talk a lot about the reasonable steps Australian businesses must take in order to ensure the wellbeing of their workers. |
But the case I discuss today turns around an unreasonable step of sorts. One that a security guard slipped and fell on – only to then sue his employer and the occupier of the premises, claiming that the step was too high.
That’s not as far-fetched as it sounds. The guard received a total of $2.2 million in damages from the two businesses, with the trial judge finding that both had breached their duty of care to the worker.
But now, the NSW Supreme Court - Court of Appeal has overturned the decision, finding that there was no evidence to suggest the businesses failed to take reasonable precautions, and that there was no breach of a duty of care on either’s part.
As you’ll read, this one expensive step has helpfully showcased which health and safety steps should be expected of you – and which shouldn’t. |
|
| | |
|
When a safety regulator visits your workplace,this is one of the first things they’ll be looking for...
| |
| | |
Where it started: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253
If you can believe it, the whole matter is over 10 years in the making. The incident which caused the worker’s injury occurred on 21 March 2005. He was employed by FBIS, a security company, to provide services to Patrick Stevedores at Port Botany in Sydney.
While entering a temporary structure on Patrick’s property, the worker, Shane Hennessy, slipped and suffered a serious back injury. More than four years later, he commenced proceedings for damages alleging a breach of duty by both businesses.
As I described above, both FBIS and Patrick were found liable for hundreds of thousands dollars each. So what convinced these three Court of Appeal judges to overturn the result?
Evidence thin on the ground
The thought of a former worker coming back and demanding damages four years after an incident may raise the hairs on the back of your neck.
But the Court of Appeal’s careful consideration shows why workers leaving these sort of claims too long can be a bad idea – because the reliable evidence that might have assisted his case was long gone.
No precise measurements of the doorway Mr Hennessy fell through, or the step, was given in evidence.
It was also noted that stepping up (and stepping down) was ‘an inevitable component of able-bodied people’s lifestyles). Mr Hennessy and other workers had stepped in and out of the doorway on many occasions before his fall without a problem.
The trial judge had concluded on witness evidence that the step was “higher than normal”. But the Court of Appeal noted that this wasn’t the same as being unreasonably or dangerously high.
The Court of Appeal also found that the trial judge had relied inappropriately on the fact that Patrick had installed a second step after the incident as an indication that the original step was too high.
In fact, the addition of a second step was described as “awkward” by some witnesses.
Taking action like this after someone is injured won’t be in itself proof that a business failed to take reasonable steps to ensure safety in the first place.
It was stressed that the duty on an employer or occupier is only to take care which is reasonable under the circumstances.
Indeed, the mere fact that there has been a fall on wet steps is not sufficient to establish that an occupier has been negligent, and the fact there were measures which could have been taken to avert or diminish the risk did not automatically establish negligence.
What about the employer?
At trial, the judge had held that FBIS should have undertaken a relevant inspection or audit of the site before allowing their employees on to it.
This would have allowed them to identify the ‘dangerous step’ and request that Patrick modify it.
But having established that it was not reasonable on the evidence to expect Patrick as occupier to identify the step as a risk and fix it, the Court of Appeal had to make a similar finding for FBIS as employer.
No doubt the response is a gut-punch for Mr Hennessy after the good news of the earlier decision. But it’s not just FBIS and Patrick that will be relieved – this judgment affirms that there are reasonable limits to what businesses like yours have to do.
A few takeaway points
- When it comes to an occupier’s liability, there is an expectation that individuals will exercise reasonable care for their own safety. Note however, that an employer’s obligations are different to an occupier’s – as an employer, you must take into account the possibility of thoughtlessness or carelessness by a worker when devising safe systems and procedures.
- Even though the appeal was successful, this case should hit home the value of safe workplace design for your workers. It also emphasises the need to appropriately train and induct contractors who will be working on your site about possible health and safety risks and relevant safety procedures.
- If you are an employer sending your workers to carry out their work at a third party’s location (e.g., a security firm offering workers to patrol another workplace), you should complete an inspection of their site to ensure there are not hazards that will put your workers at risk.
- Though it is pleasing to see from today’s case that changes a business makes after an incident will not themselves be proof that they didn’t meet their obligations in the first place, don’t just make changes for the sake of it! It’s interesting to note that many workers at Patrick’s site felt adding a second step made entering the structure harder than before. Workplace modification should be done with the aid of an experienced designer.
For more information on what your reasonable steps should look like (but not too much on unreasonably high steps, sorry), I suggest dipping into the Health & Safety Handbook.
Specifically, check out our chapters on Contractors (C1) and Workplace Design, Modification and Purchasing (W4).
Take care,
Joseph Nunweek
Editor, Health & Safety Bulletin
|
| |
 |
Do you have a colleague or friend you think will benefit from today’s Health & Safety Bulletin?
Knowledge is one of the biggest assets in any business. So why not forward this on to your friends and colleagues so they too can start taking advantage of these health and safety tips?
|
| |
| |
Check out our other free bulletins
|
| |
The information in this email is intended solely for the addressee. Access to this email by anyone else is unauthorised. If you are not the intended recipient, please return the message to the sender and delete it from your records. All content is © 2007-2015 Portner Press Pty Ltd All Rights Reserved.
Disclaimer: We research our recommendations and articles thoroughly, but disclaim all liability for any inaccuracies or omissions found in our publications. Click here to view our Privacy Policy and Terms and Conditions.
Syndication: To republish a Health & Safety Bulletin article, please email cs@portnerpress.com.au for information.
Health & Safety Bulletin ISSN 1837-6533
Portner Press Pty Ltd
96-98 Bridport Street
Albert Park VIC 3206
Australia
|
|
