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Almost $1m damages for after-hours accident

Eemployee’s damages claim was successful despite the facts the accident occurred outside working hours.
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Almost $1m damages for after-hours accident

Almost $1m damages for after-hours accident

10 November 2020

By Mike Toten

An employee’s damages claim was successful despite the facts the accident (falling through a roof) occurred outside working hours, without him being authorised to be on-site at the time, and without him following some safety procedures.

The employee had noticed a problem in the employer’s factory as he was driving past it, and went to investigate, but the roof had been poorly maintained and collapsed when he stepped onto it.

The Queensland Supreme Court held that there was no contributory negligence from the employee. The employer did not have safety procedures in place to cover the situation that occurred, and had not directed employees not to go onto the roof of the building.


Facts of case

The employee, a maintenance manager, was driving past the meatworks factory on a Friday evening after work when he noticed steam coming from a faulty relief valve. He stopped and went to investigate the problem, reasoning that if he could arrange a repair over the weekend, production the following Monday would not be disrupted.

To view the valves, he stepped onto a platform near the roof while making a phone call to a contractor. This did not provide an adequate view, so he then stepped onto an alsynite panel on the roof, which broke, resulting in a seven-metre fall onto the concrete floor. His injuries were a fractured skull, moderate brain damage and multiple injuries to spine, knees and wrist.

The employee was required to be “on-call” at nights and weekends as part of his job, and the repair contractor he phoned had asked him to identify which valve needed repair.

Evidence was provided that it was necessary for employees to go onto the roof (but rarely) to perform some maintenance/repair tasks. The employee was aware that there were alsynite panels somewhere on the roof, but he thought they were in a different location, and it was not possible to visibly distinguish them from other panels in the fading light at the time.

The employee claimed compensation for the following reasons:
  • The employer did not have a safe work method statement that prohibited access to the roof, or a requirement to use a safety harness.
  • There should have been physical barriers to prevent access, and/or warning signs that the alsynite panel existed – it was there to cover a rusted-through hole in the roof.
  • The employer should have foreseen the risk of someone falling through the alsynite panels and suffering serious injury.
  • Therefore, the employer breached its duty of care to provide a safe workplace.

He also claimed that his injuries put him at a significant disadvantage in the labour market, although he did eventually return to his maintenance manager job, albeit with support provided by co-workers.

The employer opposed the claim on the following grounds:
  • It could not have foreseen that an employee would step onto the roof after hours and in fading light – particularly an experienced one who knew that alsynite panels were there. Nor did the employee seek prior permission to access the roof.
  • The employee was talking on his phone at the time and did not exercise due care.
  • The employee ought reasonably to have known of the risks of stepping onto the roof.
  • It was a chance event, and not part of the employee’s normal work duties.


Decision

The court agreed with the employee’s claim that the employer should have taken steps to prevent stepping onto the roof, including specific instructions not to do so, or prescribed training and safety procedures to follow if stepping onto the roof was necessary. One or more of those actions would have prevented his injury, therefore the employer was liable. A reasonable person would have taken some or all of the steps, and the cost of doing so was not great.

The court rejected the employer’s claim of contributory negligence by the employee, finding that he made an error of judgment while under pressure, not a deliberate decision to ignore a risk. The work pressure arose because he was “on call” and had the discretion to decide whether and how to fix problems, and who should do so. The problem he had noticed was a serious one.

It awarded damages of $967,383 (after making a refund to WorkCover), more than 75% of which was for future economic loss. The amount took into account the likelihood of future medical costs, eg probable knee replacements, and the view that if his employment with the employer ended, he would have great difficulty obtaining other work.

The bottom line: When access to part of a workplace is potentially hazardous, the employer should do at least one of the following:
  • make it physically impossible for employees to gain access
  • erect warning or “no entry” signs
  • if employees must have access, provide a safe work statement that requires them to take specific precautions (eg safety harness, wear protective equipment) before entering.

The case also provides some insight into the distinction courts and tribunals may make between contributory negligence by an employee and “innocent” or inadvertent misjudgment or inattention.


Read the judgment

Walker v Greenmountain Food Processing Pty Ltd, [2020] QSC 329, 29 October 2020

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