A maintenance manager driving past his workplace on a Friday evening after work, noticed steam coming from a faulty relief valve and decided to stop and investigate. As part of his job, he was ‘on call’ to work nights and weekends as required.
In doing so, he stepped onto a platform near the roof whilst making a phone call to a contractor thinking that if he could arrange a repair over the weekend, production would continue as normal on Monday.
The contractor asked him to identify which valve required repair and as this meant the maintenance manager needed to move closer to get an accurate view, stepped onto a panel which broke and sent him falling 7 metres onto a concrete floor below.
The resulting injuries included a fractured skull, moderate brain damage and multiple other injuries to his spine, knees and wrist.
As it was a requirement from time to time for work to be performed on the roof, the employee claimed compensation from the employer for: -
- Failure to provide a safe work method statement that prohibited access to the roof or the requirement to wear a safety harness.
- No physical barriers preventing access, or warning signs that an alsynite panel (which the employee fell through) existed to cover a rusted hole in the roof;
- Failing to recognise the risk of falling through the alsynite panels and suffering serious injury
- Breach of their duty of care to provide a safe workplace.
In addition, the employee claimed that his injuries significantly disadvantaged him in the labour market.
The employer opposed the claim arguing: -
- It could not have been foreseeable that an employee would step on the roof after hours and in fading light noting that it was an experienced employee who was aware that there were alsynite panels and no prior permission was sought to access the roof.
- At the time of injury, the employee was speaking on their phone and not taking the required care
- The experienced employee would have reasonably known the risks with stepping onto the roof
- It was a chance event and not part of the normal duties of the employee.
The court determined that the employer should have taken steps to prevent the roof access and provided specific instructions and training to follow if accessing the roof was at all necessary. It is an expectation of an employer when identifying any potential serious risk that they take any and all reasonable action to prevent an injury from occurring. In this situation, the simple cutting off to access of the roof, signage, or a safe work procedure identifying dangerous areas on the roof, would have been both inexpensive and a preventative of any such incident occurring. As one or more of these actions would have prevented the injury, the employer was deemed to be liable.
The employer’s claim that the employee contributed to the injury by their own negligence was rejected by the court determining that the employee’s actions were an error of judgement whilst under pressure and not a deliberate or intentional decision to ignore a risk. It was found that the employee was on call and felt pressure with his discretion to decide when and how to fix problems and the problem he found was a serious one that could impact production.
The employee was awarded $967,383 in damages with more than 75% being for future economic loss. Considerations included, likely future medical costs ie., probable knee replacements and that if the employment with his employer ended, he would have difficulty finding alternate employment.
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