What is an employer’s duty of care to a careless employee?

It has long been understood that the obligations of employers to provide a safe system of work are owed “not only to the careful and observant employee, but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable”.  However, in two recent cases (one a safety prosecution, and one a claim by an employee for personal injury damages) employers have avoided liability in cases where employees have failed to take care for their own safety by following training and instructions. These cases provide a useful reminder both of the importance of implementing effective workplace training, and of the importance of documenting that training, so that there is evidence on which the employer can rely if, despite the training, a claim or prosecution arises.

The safety prosecution

In 2012, an employee of a Queensland sugar mill was killed when he was struck from behind by a moving cane bin. The cane bins were on a track, and an exclusion zone around the track was marked on the floor with a yellow line.  Shortly before being struck, the employee inexplicably stepped over the yellow line and into the exclusion zone. The employer was prosecuted in the Magistrates Court under the Work Health and Safety Act 2011 (Qld) and the prosecution was dismissed by a Magistrate.  Workplace Health and Safety Queensland then appealed to the Queensland District Court.

The Court found that the employer had not breached its obligation to ensure, as far as practicable, the safety of the worker (and, accordingly, dismissed the prosecutor’s appeal).  The employer submitted that the employee’s conduct “was irrational and completely contrary to clear, explicit and express instructions” and “could not have been in the reasonable contemplation” of the employer.

The Court accepted evidence that the employer’s training had “drummed” into employees the importance of being careful around moving cane bins, and in particular, the importance of never crossing the yellow line into the exclusion zone.   The death of the employee did not mean that the combination of the exclusion zone and “rigourous training” involved a failure on the part of the employer to take any reasonably practicable steps, because the Court found that this combination was the “best and most effective way” of addressing the identified risks.

The personal injury case

This case concerned a security guard who sued his employer (and other parties) after he confronted an intruder on premises which he was guarding. The intruder, who was carrying an axe, said to the guard, “I am going to kill you”.  Although the guard managed to avoid any physical injury, the guard alleged that he had suffered psychiatric injury as a result of the confrontation.

The problem for the guard was that the guard first observed the intruder from the security control room, and the guard’s confrontation with the intruder arose only because the guard deliberately left the control room with the intention of confronting the intruder.  Indeed, the guard placed himself in a position where he thought the intruder was likely to pass, and shouted “Security!” at the intruder when the intruder duly arrived. The Court described this conduct as conduct which “completely defied common sense, and had no legitimate purpose”.

The evidence showed that the guard had been trained not to confront intruders, and that this training had been documented  in the form of manuals and procedures which the guard agreed that he had understood.  Accordingly, both the employer, and the head security contractor, (which was also held to owe a duty of care in relation to the safe system of work) were held to have discharged their duty of care.  By acting “in plain breach” of his instructions, the Court found, “the plaintiff who was entirely the author of his own downfall”. Accordingly, the plaintiff’s claim failed against all defendants.

What joins these cases together? Training (and evidence of training) 

The common element which connects these two cases is that the employer had provided effective training, and was able to demonstrate that the training had taken place and had been understood.  In both cases, there was extensive documentary evidence from the employers as to the training which had been undertaken.

The other important element was that in both cases, the incidents were a “one-off” – that is, there had been no previous incidents, or near misses, which might have indicated to the employer that the training was ineffective, or that the training was not sufficient to deal with the risk.  Just like other safety steps, training has to be monitored – “set and forget” is not good enough.  If there had been evidence that employees of either employer were consistently acting in a manner contrary to their training, it is likely that both cases would have been decided differently.

So, although it is still true to say that a duty of care is owed to the careless as well as to the careful, it is also true to say that an important part of discharging that duty will be the provision of effective workplace training.  If the explanation in that training is clear, it should prevent the inexplicable; but if inexplicable employee conduct does occur, then the employer will at least have an explanation as to how any prosecution or litigated claim can be defended.

For more on our work health and safety law capabilities, contact Leonard Lozina or Angus Macinnis

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May 26
Litigation and dispute resolution Work health and safety