News 14 March 2019

Misjudgement, not contributory negligence

"How much responsibility do employees have for workplace safety?"

This is one of the most common questions the Victorian Chamber of Commerce is asked on employee safety along with “How can we get our employees to work more safely?” Our discussions commonly centre on this and the nature of who has what degree of responsibility for workplace safety.

In a recent appeals court decision clarifying these questions, it was found that a worker's failure to abide by a "rough rule of thumb" in a manual handling procedure did not amount to him negligently contributing to an injury. (March 6 2019)

In this decision, Victorian Court of Appeal Justices David Beach, Emilios Kyrou and Karin Emerton set aside a jury verdict that the worker's damages for injuries caused by lifting a 62kg crate, assessed at $585,000, should be reduced by 38 per cent for his negligence.

The incident occurred in August 2005, and the worker eventually sued Flowline Industries Pty Ltd for damages, claiming its negligence caused him to sustain spinal injuries. The worker told the County Court he had filled the crate with fuse boxes he was assembling and he needed to lift it to place it on the ground to make room for an empty crate. He said the employer-provided trolleys to alleviate the need to lift heavy crates but on the day of the incident, they were all full.

Many workers lifted full crates on their own and he was never directed not to do this, he said. The employer argued the worker failed to comply with its system of work prohibiting workers from lifting weights of more than 20kg without assistance, as set out in its manual handling document. It argued the worker should have known the crate was very heavy and lifting it could cause an injury.

The Court of Appeal heard he was given a copy of the manual handling document during his induction when he started working at Flowline in 2002. They found that "buried in the middle of a seven-line paragraph" was a statement that said, "As a rough rule of thumb, persons should not lift weights greater than about 20kg."

The employer appeared to be attempting to elevate a "rough rule of thumb" to a direction or system of work. At most, the evidence showed the system of work Flowline provided the worker "involved no more than general instructions about manual handling".

They went on to find that while the worker appreciated that the crate was heavy, he performed the "very short lift" in the same way that he and other Flowline workers had many times before. "The worker was merely doing the job he was required to do; a job he had done many times before in the same manner; and using an action he and others had used many times before without any complaint by the employer," they said.

“The worker's failure to seek assistance for the task was, at worst, mere inadvertence, inattention or misjudgement, and not contributory negligence.”

For more information and support for employers for this area of HSW consulting, training and other support please contact us on 03 8662 5333 or to discuss your needs.

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