The requirement on the employer to take all practicable
steps to ensure workplace health and safety is not diluted if the
injury occurred through employee stupidity. The test is whether the
risk was reasonably foreseeable.
This was highlighted in a recent decision where both the
District and High Court found that, although the worker in question
freely accepted that he was responsible for the incident, the
employer was liable.
The worker – Mr Rolfe – was employed as a technical
supervisor by Waimea Sawmillers Ltd (Waimea) and was a member of
the site Health and Safety Committee. He sustained serious injuries
to his hand when lubricating a vertical chain and sprocket system
while the machine was running.
He accepted in evidence that he was the author of his own
misfortune and that he had breached the company's safety
However had a safety guard been in place (which has since been
installed for a relatively modest cost), the accident would have
been avoided. Similarly, Rolfe might have been less inclined to
bypass the safety procedures had there not been a gap in the high
mesh fence around the machinery and a low chain to step over.
These factors weighed with Judge Morris in the Nelson District
Court, persuading her that the risk could have been reasonably
foreseen and easily mitigated. Waimea was found guilty and fined
Waimea appealed to the High Court, arguing that Judge
Morris' decision did not reflect the distinct, deliberate and
serious nature of Rolfe's actions and that Waimea could not be
liable because it complied with the maintenance provisions in the
The High Court had "considerable sympathy for Waimea's
predicament", acknowledging that it was clearly a
conscientious employer that had put in place a series of work
safety rules which, if complied with, would have prevented the
However, in assessing the risk of harm posed by the machinery,
"Waimea needed to be mindful of the fact that even trusted and
experienced employees, such as Mr Rolfe, could foreseeably take
shortcuts and behave contrary to common sense".
Further, there was "no doubt placing a guard over the
vertical chain and sprocket was an easily achievable and
cost-effective method of reducing the hazard".
The appeal was dismissed.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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