Employer escapes liability after mower cook falls on free step on occupant’s premises


The New South Wales District Court held the occupant of a premises to be fully liable, while the employer fulfilled its duty of care to its employee by carrying out a reasonable inspection of the premises.

In question

  • The substantive issue in this case was whether an employer could fulfill its non-delegable duty to take reasonable care for its employees by simply inquiring about the security of the premises of an independent third party occupant.

Background

The applicant was employed as a lawnmower cook by Shear Away Pty Limited (employer). On July 28, 2015, she arrived at Banoon station around 5 p.m. On leaving her accommodation for the third time, the entrance step shifted and collapsed, causing the complainant to fall and injure her. She brought proceedings against Top Hut Banoon Pastoral Co Pty Limited as trustee of the Wakefield Family Trust (occupier), which was the occupant of Banoon. The occupier filed a counterclaim against the employer, alleging a breach of a duty of care and a failure to inspect the occupant’s premises prior to the arrival of its employees at Banoon.

The Applicant’s nominal employer, Mr. Godde, testified that this was his third visit to Banoon. There were no previous safety issues with the stairs, or in general, in Banoon. At the beginning of each year, he spoke with the landowners about the suitability of the shearer’s housing. He acknowledged that landowners were sometimes reluctant to spend money on housing. While agreeing that it would be prudent to inspect the accommodation for safety reasons, he said it was impractical to inspect every piece of lumber on the properties. He also sometimes sent mowers to the next station in advance and allowed them to use the mowing equipment without inspecting it first.

On the day of the incident, he and his employees arrived in Banoon around 5 p.m. While unloading, Mr. Godde glanced at the step several times and did not notice any problems. The only way he could have found out that walking was dangerous was by having physically lifted her up or kicked her with his foot. At around 7:00 p.m., another employee alerted Mr. Godde of the complainant’s injuries. He approached the applicant and noticed that the step was made up of two pieces of wood on a plank, which was not fixed to the ground.

The next day, Mr. Godde informed the owner of Banoon, Mr. Wakefield, that the property was not properly appointed. Mr. Wakefield said his son-in-law did not make various repairs until the start of the mowing season. The step was then repaired and screwed into place. When Mr Godde attended Banoon in 2016, he observed that the steps had been replaced with new steel steps.

The decision at trial

At the start of the hearing, the occupier admitted breaching their duty of care. Weinstein J. concluded that the risk of harm (that is, the risk of the plaintiff walking on a wooden step that was not affixed) was foreseeable, not insignificant, and that a reasonable person at the same time the occupant’s place would have taken precautions in ensuring that the step was affixed. . He was satisfied that the occupier had breached its duty of care to the plaintiff and that the plaintiff would not have suffered the prejudice, but for the negligence of the occupant.

The employer’s duty to the plaintiff was to do what was reasonable. Weinstein J found that this did not involve Mr. Godde arriving at Banoon before his employees and handling every step. Rather, it involved Mr. Godde, on behalf of the employer, to take a look at the scene to make sure it looked safe. Therefore, a reasonable inspection would not have uncovered the detached step and there was no causal link between a violation and the plaintiff’s injuries. In the opinion of Weinstein J., the employer did not breach its obligation to the plaintiff.

Weinstein J entered for the plaintiff against the occupier alone for $ 992,866.36. The damages were therefore assessed in accordance with the Civil Liability Act 2002 (CLA).

In a separate recovery proceeding between the employer and the occupant, the employer sought recovery of workers’ compensation benefits paid to the complainant in accordance with Section 151Z (1) (d) of the Workers Compensation Act 1987 (WCA). The parties agreed that the plaintiff had a total impairment of at least 15% and that he would be entitled to modified damages under the common law if the employer was negligent in accordance with section 151H of the LCE. However, since the employer was not negligent and the damages exceeded the payment made by the employer under the WCA, Weinstein J. found for the employer against the occupant for 380,758 , $ 29 plus interest.

Implications for you

It is well established that an employer has a non-transferable obligation to take reasonable precautions for its employees. This includes performing site inspections to ensure that an occupant’s premises are safe for their employees. However, an employer need only do what is reasonable in the circumstances. If a reasonable inspection would not have revealed the risk of injury to an employee, then the employer cannot be negligent for injury to an employee.

Julie Walker v Top Hut Banoon Pastoral Co Pty Limited acting as Trustee of the Wakefield Family Trust; Shear Away Pty Limited v Top Hut Banoon Pastoral Co Pty Limited acting as trustee of the Wakefield Family Trust [2021] NSWDC 147


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