Employers need to consider the health and safety of those at work outside of normal hours

Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329

Applegarth J

29 October 2020 

In the recent judgement of Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, the Supreme Court of Queensland found an employer liable for the loss and damage suffered by a worker who sustained serious injuries after falling through a roof at dusk while investigating an issue with a boiler.

The facts

On 12 June 2015, Scott Walker (plaintiff) finished his day’s work as the maintenance manager of the Greenmountain Food Processing Pty Ltd (employer) plant at Coominya and headed to the local pub for a couple of light beers. He left the pub at approximately 5pm and as he was driving by the plant, he observed large plumes of steam venting from a boiler. The plaintiff decided to enter the premises to investigate the issue, which was most likely a malfunctioning relief valve on a boiler.

When the plaintiff arrived on site, he phoned a contractor from his mobile phone to commence the necessary arrangements for having the issue fixed over the weekend. The contractor told the plaintiff that he needed to know which relief valve was leaking so it could be fixed. Accordingly, the plaintiff, while still on the phone, scaled a platform near the top of same large tanks to try and see which relief value was leaking. He could not see from his position on the platform in the fading daylight and so stepped through a gap and onto the roof surface to see if he could get a better view. He subsequently stepped onto alsynite sheeting which gave way, causing him to fall more than 7 metres onto the concrete floor. The plaintiff suffered a fractured skull, a moderate brain injury, multiple injuries to his spine, knees and wrist.

Liability

His Honour, Justice Applegarth, made the following liability findings when ruling that the employer’s negligence caused the incident and consequent loss and damage suffered by the plaintiff.

• In his role as maintenance manager, the plaintiff was required to maintain all facility and manufacturing assets and was required to be on call at nights and on weekends.
• It was reasonably foreseeable that the plaintiff, in his role of maintenance manager, would need to investigate steam venting from a boiler in order to identify the source of the leak.
• The risk of injury from falling off or through a roof was not insignificant.
• The burden of taking precautions to avoid the risk of injury was not great. Examples of simple and inexpensive precautions the employer could have taken include implementing a policy and safe work method statement for working at heights, fencing off access from the platform to the roof, erecting warning signs regarding the presence of alsynite.
• If one or more of the above precautions had been taken by the employer, it would have prevented the incident.

Contributory negligence

The employer argued in its defence of the claim that the plaintiff was contributorily negligent for his own injuries for accessing a roof which he knew to have alsynite panels, in failing dusk light such that he could not see those panels, and while engaged in a phone conversation with the contractor.

Justice Applegarth considered the relevant standard of care for establishing a contributory negligence argument (what a reasonable person in the plaintiff’s position would have done) and concluded that the plaintiff’s decision to step on the roof when he could not see what he expected to see from the platform was “an inadvertent error of judgment made under pressure”. His Honour also made the point that the small amount of alcohol in the plaintiff’s system did not add much to the equation.

Had contributory negligence been established, His Honour would have apportioned 10% liability to the plaintiff.

Damages

Justice Applegarth awarded the plaintiff $967,383.39 in damages clear of the WorkCover statutory refund.

The main component of the award for damages was for future economic loss. Despite the fact that the 37-year-old plaintiff (32 at the time of the incident) was able to return to his position as maintenance manager and the employer contending it had no plans to let him go, His Honour held that there was a reasonably significant risk that the plaintiff will lose his current employment, either in the near or not too distant future, and that he would be at a significant disadvantage on the open labour market. While the plaintiff has a residual capacity for work, his honour considered that any future work will likely be insecure and of a part-time nature.

His Honour noted it was not possible to assess the award for future economic loss in the current case with any “mathematical precision” and settled on an award of $765,600 for future economic loss.

Lessons for employers

This judgment is a timely reminder to all employers to:

• consider restricting the physical access of workers to work premises outside normal work hours. If workers do require access as part of their role then specific instruction and training should be provided regarding what activities are allowed / not allowed on site
• ensure policies and safe work method statements are in place or updated for working at heights
• consider erecting warning signs or barricades for identified risks
• ensure you foster a positive hazard reporting system within the workplace to encourage workers to report hazards that are not observed or known to management.