Directing a worker to “tackle that task” inadequate:  Court of Appeal finds employer liable for fall Directing a worker to “tackle that task” inadequate:  Court of Appeal finds employer liable for fall

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Directing a worker to “tackle that task” inadequate: Court of Appeal finds employer liable for fall

22 October 2020 | Employment and Safety

The NSW Court of Appeal has overturned the Supreme Court’s findings that an employer was not required to take additional precautions in respect of a risk it created. 

In Issue

Whether the defendant breached its duty of care to the plaintiff by creating a risk through modification of its equipment.

The background

Whitehaven Coal Mining Ltd (the defendant) employed Mr Davies (the plaintiff) to work at its underground coal mine. In 2011, the plaintiff sustained an injury to his left shoulder when he slipped and fell 1.54m while climbing down from the top of a Load Haul Dump Machine (LHD). The plaintiff had been refuelling the LHD in an underground water bay, which was wet with groundwater and fuel spillage. The plaintiff alleged that the defendant had modified the LHD engine compartment cover so that it was necessary for the plaintiff to climb on to the top of the LHD in order to close it after refuelling. Prior to the modification, the plaintiff alleged that he had been able to complete this task from the ground.

The LHD had two rungs at the back, which served as a ladder, and two horizontal handholds at the top, to aid ascent and descent. The plaintiff alleged that the modifications required him to climb the LHD, and that this, combined with slippery conditions in the underground bay, created a risk of falling.

The decision at trial

The court held that the plaintiff had failed to demonstrate that the defendant breached its duty of care and that a reasonable employer in the defendant's position would not have done anything further to eliminate the risk.

The court determined that the existing ladder and handholds at the rear of the LHD were adequate safety measures and that the plaintiff had been appropriately trained on how to safely ascend and descend ladders, including maintaining three points of contact.

The court determined that, had the plaintiff been successful in his claim, a 30% reduction for contributory negligence would have been appropriate as the plaintiff’s failure to pay due care and to maintain 3 points of contact with a firm grip while descending contributed to his fall.

The issues on appeal

The plaintiff appealed on the basis that the court had confined its reasoning to the steps taken by the defendant regarding eliminating or preventing the risk, instead of the separate aspect of the plaintiff’s case that the defendant breached its duty of care when it created the risk by modifying the LHD. Further, the plaintiff appealed the findings as to contributory negligence as he was doing what the plant and equipment and his system of work required.

The Decision on appeal

The Court of Appeal held that there was no dispute that the modification created the need for the plaintiff to climb on top of the LHD whenever he refuelled it, wherein previously, he had no need to climb it at all. The expert evidence at trial was that climbing onto the top of the machine entailed a risk of slipping or falling.

The Court of Appeal accepted that the defendant had created an unnecessary risk where none had existed before and in doing so, had breached its duty of care. The rungs and handholds were not adequate safeguards for the risk created by the defendant and their response to the risk in expecting workers to “tackle the task” was inadequate.

The Court of Appeal also overturned the finding in respect of contributory negligence, reinforcing the established principles that contributory negligence is not determined by showing mere thoughtlessness, inattention or inadvertence and that a court should be slow to place blame on an employee who was merely getting on with his employer’s business. Further, in this matter there was no carelessness of the plaintiff in undertaking the task, which required him to hold his entire body weight, plus 15kg, without losing grip all while descending backwards from a crouched position.

Implications for you

This case reinforces the difficulties employers will face when attempting to argue contributory negligence against an employee who is attempting to go about their duties.

Further, it confirms that an employer must take steps to avoid introducing unnecessary risks into an established system of work. When introducing a new risk, an employer should take steps to ensure that workers have adequate safeguards to perform their work.

Davies v Whitehaven Coal Mining Limited [2020] NSWCA 219

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Amanda Cann

Amanda Cann

Senior Associate