пятница, 19 апреля 2019 г.

Австралия. Ученик мясника сказал одному из мясников убрать с пола фарш….


Интересно как он это сказал (попросил, приказал…), в публикации написано  «said».  Но фарш никто не убрал, а Ученик мясника думал, что все убрано, влез на специальную  тележку, чтобы закрепить колбасу, эта тележка поехала, он с нее соскочил, сделал движение, чтобы удержать тележку, поскользнулся о неубранный фарш,   упал и повредил о стенку спину. Получил в свою пользу судебное решение о компенсации 600 000  австралийских долларов.

Наниматель (супермаркет), которой по решению  суда обязан выплатить указанную компенсацию, утверждал, что contributorily negligent (способствующая небрежность) Потерпевшего 25%, Суд нашел, что только 10%.  

Потерпевший в судебном деле указывал на две основные вещи: а) конструкция тележки, которой не предусмотрено то, что данную тележку можно зафиксировать на месте; б) неубранный пол. Суд нашел, что по поводу тележки вины Нанимателя нет, они у всех такие. Но, по поводу нечистого пола признал факт нарушения.

Вспоминается недавняя история, тоже из Австралии, где суд установил, что преподаватель, согласно локальному акту школы, должна была сама следить, нет ли на полу мусора, и убрать его, если он появился, либо попросить сделать это учеников.  


Portner Press
Workplace Bulletin

  • One TINY oversight costs employer $600K
  • Your questions answered: What is executive due diligence?

Editorial Team
Editorial Team
Thursday 18 April, 2019
One TINY oversight costs employer $600K

Even the smallest safety oversight can be disastrous.
The butchers at an IGA store in New South Wales probably never thought that failing to spot a tiny slither of sausage mince hidden under a trolley in the meat room could lead to a $600,000 liability claim.
In Paul v Ashcroft Supa IGA Orange Pty Ltd (2019) a worker sued the supermarket for breaching its duty of care in a 2012 incident when he was working there as an apprentice butcher.
He was directed to link sausages on a tray on top of a wheeled trolley, before it rolled away from him.
When he stepped to follow the trolley to try and prevent the sausages from falling on the floor, he slipped on a piece of flattened mince and fell backwards hitting a wall, injuring his back.
The worker submitted that the employer was liable for the accident as it had failed to:
  1. Ensure that the trolley holding the tray of encased sausage meat was provided with a braking or locking mechanism.
  2. Ensure the floor was free of wet and slippery substances.
  3. Ensure that the floor was regularly inspected and cleaned.
  4. Ensure that the trolley holding the tray was not placed on a sloping area of floor.
  5. Provide a sufficiently high level of supervision in view of the plaintiff being a first year apprentice.
  6. Provide sufficient fixed work benches to ensure that no preparation work was undertaken using a wheeled trolley.
  7. Identify the hazards and risk of injury to which the plaintiff was exposed.
The employer argued that the worker was 25% contributorily negligent as he had failed to look under the trolley before undertaking the task.
NSW District Court Judge David Russell rejected this, finding that the worker was only 10% contributorily negligent.
The worker explained in the hearing that he saw mince on the floor when he started his shift, but said one of the butchers cleaned the floor before he started linking the sausages.
As he was an apprentice, he didn’t think that he was expected to check the work of the butcher and trusted that the area had been cleaned up properly.
While Judge Russell did find that the employer wasn’t liable for the wheeled trolley not having a locking or braking mechanism, as there was no regulation or practice in the industry to use these, he said “The same cannot be said for the presence of slippery sausage mince on the floor underneath the trolley”.
“Since the trolley was freely mobile, there was a need to clean underneath the trolley as well as the rest of the meat room floor. [The employer] through its employees failed to do that properly
“[T]here was a piece of sausage mince on the floor for three and a half hours which had not been removed, and it should have been removed. There was … a common sense obligation on the part of [the employer] to take proper steps to clean slippery things off the floor,” he said.
The employer was ordered to pay the worker $578,689.11 in damages, plus his legal costs.
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Your questions answered:
What is executive due diligence?

Q
I would like to understand what 'executive due diligence'means. Could you please provide me with a definition?


A
Due diligence relates to the duty of care owed by officers under work health and safety (WHS) laws.
The reference to “executive due diligence” also relates to the duty of care owed by officers and senior managers under the Heavy Vehicle National Law (HVNL), particularly the concept of the Chain of Responsibility (CoR).
Under the CoR, all persons responsible for activities that affect compliance with the HVNL are held liable for a failure to exercise that responsibility.
The CoR regime imposes a due diligence obligation on executives to ensure that their entity complies with its responsibility – this being the safety of heavy transport activities related to their business. An executive is a company director or any person (by whatever title and whether or not the person is a director) who is concerned or takes part in the management of a corporation.
This executive due diligence obligation takes its definition from the WHS laws and is set out in section 26D of the HVNL.
In practical terms, it means taking all reasonable steps to implement and verify that systems are in place to control the risks arising from heavy transport activities.

These steps commonly include:
  • implementing a framework for CoR risk identification, assessment and mitigation;
  • implementing a system to provide information, instruction, training and supervision to workers, customers and business partners (e.g. contractual counterparts and subcontractors) in relation to CoR compliance; and
  • monitoring the implementation of the framework and systems in practice and addressing any issues of non-compliance.
The consequences for failing to exercise executive due diligence include significant fines and jail sentences.
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