Participation in the workforce is a fundamental aspect of the modern psyche and, as a community, we place great value on safety in the workplace.
However, although injury prevention is of utmost importance, it is simply not possible to eliminate all risks in the workplace.
This article will consider the nature and extent of the common law duty of an employer to provide a safe workplace and will specifically consider circumstances in which a worker suffered a workplace injury but the employer was not liable.
Queensland's workers' compensation scheme – a quick recap
Because life is inherently risky and, despite the best intentions, workplace injuries do occur, it is compulsory for any employer in Queensland to take out a policy of worker’s compensation insurance.
For most employers, this will be via WorkCover Queensland. Failure to hold the necessary insurance can be a costly, resulting in penalties and fines as well as an entitlement for WorkCover to recover from the uninsured employer the entire claim costs – including unpaid premiums, statutory compensation and common law damages.
For a better understanding of the WorkCover’s claim process, please see our previous article – https://www.hede.com.au/news/theres-been-an-injury-in-the-workplace-what-now/.
For the purpose of this article, we will be considering an employer’s duty of care in the context of a common law claim.
An employer's duty of care
The Workers’ Compensation and Rehabilitation Act 2003 provides that an employer does not breach a duty to take precautions against a risk of injury to a worker unless –
- the risk was foreseeable (that is, it is a risk of which the employer knew or ought reasonably to have known);
- the risk was not insignificant; and
- in the circumstances, a reasonable person in the position of the employer would have taken the precautions.
In deciding whether a reasonable person would have taken precautions against a risk, the Court will, among other things, consider:-
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
It is important to reiterate that an employer’s duty does not require the employer to eliminate all risks in the workplace.
 Section 48 Workers’ Compensation and Rehabilitation Act 2003 (Qld)
 Section 305B Workers’ Compensation and Rehabilitation Act 2003
Accidents do happen - When is an employer not liable for a workplace injury?
There have been a number of recent decisions where Courts have determined that a workplace injury did not arise from the employer’s negligence. In each of these cases, the injured worker did not receive an award for damages and (depending upon the facts of each case) may have also faced significant legal bills – both from their own team and also from the defence.
Sneddon v Petts
A farmhand sustained an injury to his leg while spraying herbicide in close proximity to his employer, who was operating a brushcutter. The plaintiff alleged that the employer, using the brushcutter, turned unexpectedly towards the plaintiff, causing him to step back, trip on a rock and fall. The plaintiff was approximately 5 metres from the employer and the brushcutter was 1.83m in length.
When considering the issue of liability, the District Court found that, although changes to the system of work, such as enforcing a greater distance between the workers, may have reduced the risk of injury, this would have impeded practical completion of the relevant task. The Court did not identify any other deficiencies with the practical training provided to the plaintiff, the equipment provided or the manner in which the equipment was used. Accordingly, the Court found in favour of the employer and determined that the injury was not caused by any negligence on the part of the employer.
Manca v Teys Australia Beenleigh Pty Ltd
An experienced meatworker sustained injury when he slipped on a flight of steps when proceeding to wash facilities within his workplace. The plaintiff alleges that he was carrying his knife pouch and tools in one hand, his apron draped over an arm and his sharpening steels and sharpening stone in the other hand and that, accordingly, his vision of the handrail and steps was impeded. The plaintiff also alleged that animal matter had congealed on his boots and may have been on the steps, thus contributing to the fall. The defendant alleged that the plaintiff failed to comply with training provided to him in that he descended the stairs without using the handrail.
In determining the issue of liability, the Court considered that the employer had taken reasonable steps to address the risk of a worker slipping on the steps. It was not considered foreseeable that a worker would be carrying equipment in both hands and thus not use the handrail as it was found to be unnecessary for a worker such as the plaintiff to be carrying so much equipment that he could not hold it in one hand and grip the handrail with the other. The Court also noted the absence of any expert evidence regarding the slipperiness (or otherwise) of animal matter and was therefore unable to determine that this contributed to the fall.
Interestingly, the judge noted that even if his conclusion on primary liability was incorrect, he would have assessed contributory negligence at 50%.
Morris v Evolution Traffi & Anorc
The plaintiff was employed as a traffic controller on a 1.7km roadworks site. He sustained a shoulder injury when he tripped and fell on a section of bitumen located next to a marked crosswalk. He brought proceedings against his employer and the principal contractor responsible for the site, with both claims dismissed.
The Court noted that the employer ensured that employees knew and were reminded of possible rises and falls in the worksite. The employer had no knowledge of the particular hazard that caused the fall – just that there were uneven road surfaces generally throughout the site. The plaintiff had been given a verbal warning about slips, trips and falls in a daily pre-start meeting.
Ultimately, the Court considered that, although the risk of a trip and fall from an uneven road surface was reasonably foreseeable and not insignificant, the steps taken by the employer adopted a reasonable system of work and there were no other reasonable precautions that could have been taken to avoid the risk of injury.
Similarly, there was nothing reasonably more that the principal contractor could have done to avoid or minimise the risk of injury.
New South Wales Courts have taken a similar approach to the Queensland decisions above. In the recent decision of Finnis v State of New South Wales, a cleaner was injured whilst exiting a storeroom when, before he was fully outside the doorway, he rose prematurely and struck his head on the lintel. Whilst the Court accepted that there was an (arguably obvious) risk that an entrant to the storeroom may not take sufficient care and might bump their head on the lintel of the door frame, the precautions put forward to minimise the risk were not considered reasonable.
These included relocating the storeroom and providing a safe means of passage. The Court of Appeal determined that the burden of taking the precaution was not reasonable having regard to the risk.
This decision expands upon the earlier NSW Court of Appeal decision of Drew v State of New South Wales where a cleaner, walking through a classroom that was being used as a storeroom, tripped on a box, causing her to fall and sustain injuries. The employer was not responsible for the placement of the box, which had not been there the day prior.
However, the plaintiff gave evidence that, on the day of the incident, she had walked past the subject box on five occasions prior to the fall (including on the first occasion when she pushed the box to clear her path as the corner of the box had been sticking out). The Court of Appeal noted that the employer had in place a system of sending a site supervisor to inspect premises where it was sending workers, such as the plaintiff.
However, given the box had only recently been placed, the employer had no means of being aware of the risk and was therefore not obligated to take any particular precautions in that regard. When considering the obligations of the State of New South Wales (who occupied the site and whose workers did place the box), the Court of Appeal noted that “taking no precautions whatsoever may be a reasonable response to a risk, because it can reasonably be assumed that adults will take reasonable care for their own safety and will not reasonably expect premises to be free from obvious hazards”.
  QDC 49
  QDC 139
  QDC 195
  NSWCA 292
  NSWCA 159
 Ibid at 
Key Take Aways for employers
A seemingly innocuous event can become the subject of a claim for damages some years down the track.
It is crucial in responding to any such claim to have reliable, contemporaneous evidence of the incident and the relevant system of work. Documentation that should be retained includes:-
- Induction and training records;
- Pre-start/toolbox meeting records;
- Safe work method statements/operating procedures;
- Risk Assessments;
- Incident reports (including any witness statements).
Key Take Aways for workers
Whilst a workplace injury might have long term implications for an injured worker, it is important to be aware that not all injuries that occur in the workplace are injuries for which an employer will be found liable.
The impact of failed litigation can be financially devastating so careful consideration should be given to your options and the merits of your claim at an early stage.