Australia: Employers – don't misstep safety

Last Updated: 3 October 2016
Article by Greg McCann and Isabella Ledden

In brief - Teacher's slip on step ladder leads to High Court proceedings

A primary school teacher's action against her employer for a knee injury she sustained while slipping from a step ladder in the classroom, highlights that employers may need to provide detailed instructions to employees before they perform work tasks to prevent employers' breaches of their statutory duties under the Victorian Occupational Health and Safety Manual Handling Regulations.

Employers may be required to give employees highly detailed instructions

In September 2007, a primary school teacher slipped and injured her knee at work, while using a two-step ladder in order to reach and remove paper-mâché displays mounted on a classroom wall pin-board. Following the High Court of Australia's recent decision to remit the matter to the Victorian Supreme Court of Appeal in August 2016, the teacher's action against her employer for her injury still remains to be resolved.

Nevertheless, the High Court's allowance of the teacher's appeal in Deal v Father Pius Kodakkathanath [2016] HCA 31 demonstrates the high level of specificity for detailed methods and instructions that employers may be expected to prescribe their employees prior to performing work tasks. The case highlights that the provision of such detailed instructions may be necessary in order for employers to prevent breaches of their statutory duties under regulations 3.1.1, 3.1.2 and 3.1.3 of the Victorian Occupational Health and Safety Manual Handling Regulations.

Teacher's necessary and periodic task described in detail in Court

The task in question was considered a necessary part of the teacher's role as a Grade 3 teacher, and was undertaken periodically. Her employer had provided the step ladder, which had a top step 45 cm high from the floor. In the case, the method the teacher used to perform the task was described in great detail, with the teacher even calling upon a forensic consulting engineer as an expert witness.

To perform the task, the teacher would set the step ladder at right angles to the pin-board, ascend to the top step, reach up above her head and unpin one or more paper-mâché displays at a time, and then carry them while descending backwards to the floor.

At the time of the injury, the teacher had been carrying more than one paper-mâché display at once. While descending the step ladder, rather than keeping her hands free to steady herself, the teacher held the displays with both hands reportedly to prevent them from bending. At trial, the teacher stated that because she held the displays in front of her, she was unable to see past them and therefore cautiously felt for each step with her feet as she descended. On this occasion, she consequently slipped and sustained a knee injury.

Generic instructions not sufficient to cover for employer's failure to provide further instructions

It was noted by the High Court that despite the existence of generic instructions on the step ladder itself of which the teacher was aware and complied with, the employer had failed in providing any further instructions for how to perform the task in question.

The teacher also provided evidence in order to demonstrate that she in fact had no knowledge of:

  • the Victorian Manual Handling Regulations
  • any assessment undertaken by her employer pursuant to the regulations
  • any manual handling risks associated with either the positioning or removing of such displays in a workplace safety context

These assertions went unchallenged by her employer.

Written warnings about risks crucial and workplace risk assessment manuals also require greater specificity

In particular, the Court flagged that the employer, problematically, had not given the teacher any written warnings of:

  • the risks of falling from a step ladder
  • not working alone when using the step ladder
  • the danger of using the step ladder to perform the task of removing displays from the pin-board

The employer identified "Manual Handling Risk Assessment" documents in an attempt to evidence their performance of hazard identification for hanging paper displays, prior to the teacher's injury.

However, the Court noted that these documents were deficient in not specifically including any recommendation that if the task required both hands to carry an item, then an assistant should be available to enable the person to pass the load while standing securely on the ladder. Nor was the need for a system of work involved in undertaking the task either identified or recommended by the employer.

Breach of statutory duty fit to be left to and found by jury

Ultimately, in the High Court proceedings it was found that a jury was entitled to find that the risk that amounted to the teacher's injury answered the description of the risk of a "musculoskeletal disorder associated with a manual handling task", in accordance with the Victorian Manual Handling Regulations.

It was also held that the jury was right to conclude that the employer failed to meet the obligation of acting so far as was reasonably practicable to reduce or control that risk

Workplace safety breaches may be minimised by adopting a thorough approach

The case has since been cited in four cases, including one High Court case Comcare v Martin [2016], emphasising the significance of the decision for employers to adopt thorough systems for their employees in order to minimise workplace safety breaches. This also applies to all states and territories around Australia where the Work Health and Safety Act, and other safety legislation has been enacted.

Employers - to reduce your potential exposure you should:

  • consider whether there is a "safest" way for your employees to perform the work tasks required of them
  • seek legal advice as to the relevant laws, regulations and codes of practice for your workplace
  • implement considered and thorough safety management systems

Greg McCann
Work health and safety
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Greg McCann
Isabella Ledden
 
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