A recent High Court decision serves as a warning for employers to do what is ‘reasonably practical’ to ensure employees perform a task in the safest possible way.
If not, employers risk finding themselves liable in damages to individual employees for breach of their statutory duty under workplace safety legislation.
A recent High Court case (Deal v Father Plus Koddakkathanath  HCA 31) has highlighted the need for employers to be particularly vigilant in ensuring their workplace is a safe place.
In this case an employee who as a Year 3 teacher did not have a seemingly dangerous role, took her case to the High Court following an appeal by her employer.
The High Court concluded that it was open for the jury to find that the respondent had breached its statutory duty to do what was ‘reasonably practical’ and remitted the matter back to the Victorian Court of Appeal.
So what happened?
As part of the appellant’s role as a Year 3 teacher, she was required to occasionally remove a number of papier mâché displays from a pin-board on the classroom wall. She used a step ladder provided by the school to reach the pin-board. While using the ladder to remove some of the displays, she fell and suffered a knee injury, and then claimed damages against her employer for the injury.
The Occupational Health and Safety Act 2004 (Vic) imposes a duty on employers as far as is ‘reasonably practical’, to provide and maintain a working system for employees that is safe and without risks to health. The Occupational Health and Safety Regulations 2007 (Vic) require an employer to identify tasks involving “hazardous manual handling”.
In the Victorian Court of Appeal, a 2:1 majority overturned the trial judge’s finding and said that the evidence was capable of supporting a finding that the appellant was engaged in a “hazardous manual handling task”.
However, it held that the generic nature of removing displays from the pin-board and the risk of the appellant’s injury did not constitute a hazardous manual handling task.
The High Court disagreed with this finding and allowed the teacher’s appeal. It interpreted the phrase “hazardous manual handling task” broadly, stating that the regulations should be construed to afford the protection to employees that Parliament intended.
It explained that where a task is capable of being carried out in more than one way, the employer must identify the potential risks associated with each way.
The High Court then added that unless the employer does what is ‘reasonably practical’ to prevent the employee performing the task other than in the safest way, the employer will potentially be liable for a breach of the relevant safety legislation.
What does this mean for employers?
The High Court’s broad approach to the safety legislation implies that employers risk being found liable for damages for breach of statutory duty if they are not thorough in identifying different ways in which tasks within the workplace can be carried out.
While employers may argue contributory negligence by the employee as a defence, the High Court has pointed out that anemployee’s contributory negligence may not preclude a finding that an employer failed to do what was ‘reasonably practical’ as required under the relevant legislation.
It should be noted that cases may vary from court to court.
For example, in a separate decision last week, the ACT Supreme Court found that an employer didn’t breach its duty of care in failing to instruct an employee on how to safely use a stepladder because using the ladder was a “relatively straightforward task”.
However, given that the High Court has suggested vigilance about ensuring every employee is able to perform all tasks in the safest possible way, it would be wise for employers to do just that.
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