WCRA: employer’s duty to provide safe equipment

Verney v The Mac Services Group Pty Ltd [2014] QSC 057

 

An employer’s duty to provide safe equipment is well settled. The decision of North J is a reminder of how heavy the duty is.

North J

Before turning to the findings or inferences with respect to the allegations of breach of duty of care and causation of loss and damage, I will refer to, if only out of excessive caution, some leading authorities that I consider not only inform the task that I have to perform but also bind me. The High Court has, on many occasions, had to state and restate the law concerning the duty owed by an employer to an employee. A convenient summary or statement of principles can be found in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301. In that case in the joint judgment of Justices Mason, Wilson and Dawson, their Honours by reference to a statement of principle in Hamilton v Nuroof said:

 

What must be asserted is that the law has not changed. It is as accurate today as it was 30 years ago to say that the duty is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing employees to unnecessary risks of injury.

 

Their Honours went on to quote with approval a passage in Vozza v Tooth Co Ltd:

For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.

 

Their Honours went on to remind us that the reasonable standard of care for an employee’s safety is not a low one and further that accident prevention is unquestionably one of the modern responsibilities of an employer.

That last statement was a quote from the judgment of the majority of the High Court in McLean v Tedman & Ors [1984] HCA 60; (1984) 155 CLR 306 at page 313. It will be remembered that in McLean v Tedman (at paragraph 8) their Honours noted that whether the obligation to provide a safe system of work is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or whether it is expressed as one which requires an employer to take reasonable care in providing such a system is moot. It is plain from what their Honours said that both statements expressed the same duty.

 

In the foregoing I was at pains to quote from Bankstown Foundry v Braistina and the approved statement in Vozza v Tooth that for a plaintiff to succeed it must appear by direct evidence or by reasonable inference that the duty has been breached. That issue loomed large in addresses before me. The judgment of the High Court in Schellenberg v Tunnel Holdings Pty Ltd [2000] 200 CLR 211 is instructive. That case concerned the role that inferences can play in the consideration of whether a breach of duty of care could be proven in the context of litigation involving an injury caused by a failure in machinery supplied by the employer to an employee.

 

With respect to the content of the duty of care concerning equipment or tools, Gaudron J (at [77] said, “In the present case the content of that duty involved the taking of reasonable steps to ensure that the tools with which the appellant was required to work and the system supplying air to those tools were safe. Those steps included the maintenance and inspection of the tools and the air supply system. Moreover it included a duty to instruct the appellant and other employees as to the steps they should take before using the tools to ensure their safety and, also, a duty to implement procedures to ensure that those steps were followed.”

 

To like effect (at [149]) Hayne J said, “An employer’s duty of care to an employee is a duty that will ordinarily require attention to a number of very different matters. An employer must take reasonable care to provide a safe system of work and a safe place of work. An employer must provide ‘proper and adequate means of carrying out the employee’s work without unnecessary risks’. The fact that a piece of equipment fails while being used by an employee will ordinarily invite consideration of many features of the employer’s duty which I have mentioned. Did the equipment fail because it was unsuited to the task? … Or did the equipment fail because no sufficient system for maintaining and checking the equipment was implemented by the employer? Or, and this is of crucial importance, did the equipment fail for some reason beyond the control of the employer.”

 

In a lengthy but instructive judgment, Kirby J made some significant observations in the consideration of what he described as basic principles of liability (commencing at [101]. At [102] His Honour said, “So far as equipment such as the grinder used by the appellant here was concerned, the employer was not an insurer for its safety. An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does have a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration.” His Honour went on to remind (at [103] and [104] that the duty remains that of reasonable care and that the burden of establishing the claim in negligence rests on the plaintiff throughout the proceedings.

 

The first matter that I have to consider is whether the plaintiff can establish, on the balance of probabilities, that the defendant breached the duty of care it owed to him by supplying to him the wheelbarrow in question. The evidence that I have accepted from Mr Wicht is, that the wheelbarrow failed near the bracing supporting the wheel at a site where there had evidently been a repair by way of a weld.

 

The view I take I can safely infer that the evidence supports conclusion that the employer breached his duty of care to the plaintiff. The evidence which supports this, in my view, includes that of Mr Wicht of the conditions of some tools and the wheelbarrow in question and other wheelbarrows, the evidence of the plaintiff of the condition of some wheelbarrows that were defective and of complaints made about them. This evidence is supported inferentially by the evidence of Mr White and his observations about the wheelbarrows left for use by employees after the depredations caused by the plunder of other contractors.

 

Further, the evidence of the safety officer, Mr Jones, is instructive (particularly transcript (page 64, lines 40 to 45 and page 63, lines 10 to 36). Mr Jones’ evidence is that there was pressure on all at the site to get the job done and that there was a permissive culture, if I use that unfortunate term, at the worksite to allow men to use faulty equipment to meet the deadlines, notwithstanding what I might term were pious warnings at toolbox meetings by supervisors to remind employees to check equipment daily before starting work. Further, the evidence of Mr Wicht that the broken wheelbarrows including the one used by the plaintiff was disposed soon after the plaintiff made a complaint of his injury, suggests that it was a relatively easy matter for the employer to have disposed of faulty wheelbarrows and replace them with new wheelbarrows. Similar evidence to that given by Mr Jones and Mr Maloney that there was urgency associated with the completion of the project should not be forgotten.

 

The evidence of Mr Wicht and Mr White and of the plaintiff includes complaints about wheelbarrows and complaints they were faulty. The evidence does not demonstrate there was any response by the employer following these complaints to check wheelbarrows or to replace them. There is an absence of any evidence in the context of complaints by employees that the damaged wheelbarrows, when repaired by welds at handles or near wheel bracing, was done by a qualified tradesman or to a standard making the wheelbarrow safe for use in connection with construction work on a construction site. There was no evidence that the defendant had in place a programme for checking or monitoring the tools and equipment such as wheelbarrows. And there is an absence of any response by the employer to complaints made about the equipment.

 

In connection with the evidence of Mr Wicht, which I have accepted, I would remind the evidence that I quoted earlier, that the wheelbarrows would continue to snap, notwithstanding welding to the brackets or near the brackets. In those circumstances, I infer a breach of the duty of care, and I find that the allegations in paragraphs 12, subparagraphs (a), (b) and (c) of the amended statement of claim are made out.

 

Further, I consider that the evidence permits me to safely infer that the breach of the duty of care caused the plaintiff’s injury and subsequent loss and damage. This can be stated briefly – the evidence of Mr Wicht, who witnessed the incident, and the absence of any suggestion that the plaintiff was using the wheelbarrow in an unsafe manner, for example, that it had been overloaded or that he was performing unusual manoeuvres. The evidence of Mr Wicht of the failure of the wheelbarrow and that it failed at the site of the weld and the evidence of the plaintiff of the circumstances of the accident comfortably establish that.

 

Brisbane Barrister – David Cormack

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