Scone Race Club Ltd v Cottom [2019] NSWCA 260 (31 October 2019)

Summary

This case considers the implications arising from the absence of a risk assessment in a situation where there is no evidence that such an assessment would have led to the implementation of an alternative system of work.

Background

The worker was employed by the Scone Race Club (‘the Club’) as a waste management labourer and supervisor. During a race meeting conducted by the Club the worker sustained an injury to his right knee. The worker alleged that he was instructed to empty an overflowing bin liner that was inside a 240 litre garbage bin and that when he attempted to lift the bin liner, he slipped and suffered injury.

The worker alleged negligence on the part of the Club, including amongst other things, a failure to maintain a safe system of work and failure to take reasonable care to assess, monitor, identify, reduce and eliminate the risk of injury from a defective system of work.

On the day in question, large black two-wheeled garbage bins of 240 litre capacity, commonly referred to as “wheelie bins”, were placed around the public enclosure. Some of the bins were located on a large sloping grassed area adjacent to the track. The bins were not fixed in position and were lined with large bin liners. Further away from the race track there was a large garbage skip, into which the bin liners filled with rubbish were placed after they were removed from the bins. The worker contended that he was directed to remove the full bin liners while the bin remained on the sloping grass and then carry them to the skip bin. The Club contended that the system was to wheel the whole bin to the skip bin and then remove the liner.

The worker said that he had complained about the bins and had suggested that the Club should install level concrete pads on which to place the bins. The Club managers gave evidence that they had never received a complaint about anyone slipping on the grass or injuring themselves while removing garbage. They also denied that the worker had ever spoken to them about the grassy slope being slippery or dangerous. No employee or patron had complained about the slope and no one had complained about the system of emptying the bins. No one had made any such complaint since the incident. The worker’s manager denied that the worker ever mentioned to her or in her presence that concrete pads were necessary. There was no evidence as to the cost of constructing concrete pads.

The primary judge accepted that:

• the cost and inconvenience of constructing concrete pads was outweighed by the benefits.
• there was no evidence to establish when or by whom notice of the system of work contended for by the Club was communicated to the worker.
• the Club had an obligation to conduct a risk assessment of the job of removing garbage from a bin on a sloping, grassy area and to take steps either to eliminate or to ameliorate the risk of injury.

While the primary judge considered that the Club ought to have conducted proper risk assessments, there was no evidence as to the nature of the risk assessment that should have been carried out, or of the likely result of such an assessment.

Decision 

The Court of Appeal concluded that it didn’t matter which system of work was accepted as applicable. Nothing turned on it as both systems required the liner to be removed from the bin at some point. The Court expressed the view that removing the liner on the sloping grass, in the midst of a crowd of racegoers, would present a greater risk of injury than wheeling away the bin so that the installation of concrete pads may have presented a greater risk of injury both to workers and racegoers.
Emmett JA, with whom Gleeson JA and Brereton JA agreed, said:

… the primary judge erred in concluding that the Club failed to take reasonable care by reason of its failure to install concrete pads upon which to locate the bins. There was no evidence as to the gradient of the slope to indicate why the slope itself was a hazard for an employee removing loaded bin liners from the bins. Clearly, the slope was not so steep that the bins were unstable. The precise mechanism of the Worker’s fall, in relation to his standing on an incline, is quite unclear. There was no specific or reliable evidence as to the area of, or depth of, the pads or the places where they should have been installed. It is by no means certain that a concrete pad would be less prone to causing injury than grass. I do not consider that the Club was in breach of any duty of care or any statutory duty that it owed to the Worker.

As to the need for a risk assessment, His Honour said, in accepting the Club’s submissions:

… the concept of risk assessment does not assist the Worker’s case in circumstances where there was a long history both before and after the Worker’s injury of absence of problems and no example of precautionary measures taken elsewhere. It would therefore be concluded… that a risk assessment would have demonstrated that no action was necessary. More specifically… a risk assessment would not have demonstrated the need for concrete pads without a cost benefit analysis comparing the magnitude of the Risk with the proposed cost of dealing with it, being the cost of concrete pads or the employment of additional staff. The primary judge was not in a position to determine that such costs were “minimal”.

Implications

It has become increasingly common for plaintiff’s to allege negligence on the part of an employer for failing to undertake a risk assessment. This decision illustrates that the mere failure to undertake an assessment is not negligent. It must be shown that a risk assessment would have identified a risk of injury which could be removed or ameliorated by reasonable and affordable action taken by the employer.

The special relationship between employer and employee has the consequence that the duty of care owed by an employer to an employee is non-delegable. That duty is to take reasonable care to avoid harm to the employee. However, there is no special or exceptional duty of care owed by an employer to an employee beyond what is reasonable in all of the circumstances.