Julie Walker v Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust; Shear Away Pty Limited v Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust  (NSWDC 2021)

LINK TO DECISION

Key Takeaways 

• The duty of care owed by an employer to its employees is not absolute but to do what is reasonable in the circumstances.
• If a reasonable inspection of third party premises would not have disclosed a defect that posed a risk of injury to an employee, then the employer may not be negligent.

Brief Facts

The injured worker brought a claim for damages alleging negligence against the occupier of premises that she attended as a shearers cook.

The worker had arrived at Banoon station at dusk on 28 July 2015 and had used the steps outside the accommodation hut several times without incident. However, after taking a shower she was leaving the hut to return to her room when she put her foot on a step and as she was bringing her other foot down, felt the step tilt causing her to fall to the ground and fracture her foot.

The worker subsequently noticed that the step had broken and that one side had come loose from the wood while the other side was hardly attached 'but there'. The worker did not lose her footing or misstep. The area was poorly lit, however, the worker said that she could see the step with the reflection from the kitchen light.

The next day, the occupier fixed the step by nailing it back in place, and arranging to get a light to illuminate the steps.

The worker made a claim for damages against the occupier. In addition to the worker’s proceedings, separate proceedings were brought by the employer seeking to recover compensation paid pursuant to s151Z(1)(d) of the Workers Compensation Act 1987. The proceedings were heard at the same time.

The Hearing

During the course of the trial, the occupier admitted three breaches of duty. The occupier had also filed a cross claim against the employer alleging a breach of duty of care and, in particular a failure on the part of the employer to inspect the premises prior to the arrival of his employees at those premises. The occupier sought contribution or an indemnity from the employer pursuant to the Law Reform (Miscellaneous Provisions) Act 1946.

The fact that the worker had fallen off a step at the occupier’s premises in the course of her employment was not disputed. She had walked up and down the step twice without incident before her injury. It was only on the third occasion that the step moved and fell apart and she fell to the ground.

Mr Godde gave evidence on behalf of the employer to the following effect:

….the steps…were two bits of timber put on a plank which were neither nailed nor screwed down. After the plaintiff’s accident, the timber came apart. Mr Godde noted that the lighting was very dim, and that although there had been a sensor light, it was not working well.

The following day, Mr Godde had a conversation with the owner of the property Mr Wakefield. Mr Godde explained that the property was not adequately set up…Mr Wakefield responded, saying ‘my son-in-law was supposed to fix all these sort of things before the shearing’. The step was then screwed into place and fixed.

The occupier was not called to give evidence.

Judgment

His Honour accepted the worker as an honest witness. He was satisfied that the relevant provision of the CLA were satisfied i.e. that the risk of harm was foreseeable, that the risk was not insignificant, and that a reasonable person in the occupier’s position would have taken precautions against the risk of harm by ensuring that the step was affixed.

His Honour found that the occupier breached its duty of care and in doing so, caused harm to the worker for which damages were payable (and assessed in the sum of $992,866.34).

On the occupier’s cross claim, His Honour considered the liability of the employer observing that it is well established that an employer has a non-delegable duty of care to take reasonable care to avoid exposing employees to unnecessary risks of injury.

However, the duty is not absolute and will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control.

His Honour found that the employer’s duty of care did not extend to Mr Godde arriving prior to his employees, and conducting an inspection of each and every step in the accommodation, shearing shed and the surrounds. The duty was to do what was reasonable and did not extend to kicking every step when conducting an inspection to reveal any defect (as was suggested by the occupier’s counsel).

His Honour did not accept that even if the employer had inspected the premises, an inspection (or even a kick) of the step would have revealed the defect.

His Honour was not satisfied that the occupier had proved on the balance of probabilities that the employer was negligent.

The employer’s s151Z recovery claim was successful and His Honour made the order (for indemnity) sought by the employer together with interest from the date on which the worker commenced proceedings, in the exercise of his discretion on the basis that by that date, the occupier ought to have known of its liability.

Implications

A detailed consideration of the facts of each case is required in order to determine whether an employer has discharged its duty of care by taking what are regarded as reasonable steps to identify any potential hazards posed on third party premises that might expose its employees to a risk of injury.

The analysis will be key to the determination of any liability on the part of the employer and dictate the extent of any right of recovery in respect of compensation paid to, and on behalf of the worker.