A recent decision of the Supreme Court of the Australian
Capital Territory has provided guidance on the extent of an
employer's duty to employees performing 'simple and
In Cowie v Gungahlin Veterinary Services Pty Ltd, Ms
Cowie fell from the second step of a three-step stepladder while
attempting to place blankets onto a shelf at 'eye level'.
Ms Cowie could not explain the exact cause of her fall, but the
Court found it likely that the ladder tipped as Ms Cowie
inadvertently overreached to place blankets on the shelf.
Ms Cowie alleged her employer was liable for the fall because it
had not provided her with any training on the safe use of the
stepladder, it had not conducted any risk assessment of her duties
or the workplace, and it should have used an alternative method of
storage that would have negated the use of a stepladder altogether
(i.e. having all products accessible from the ground).
At first instance, the Magistrates Court held that no
instruction was required for the use of a stepladder due to the
simple and commonplace nature of the task and it would have been
unreasonable to require the employer to totally eliminate all
storage options not accessible from the ground.
On appeal, the Supreme Court was required to determine whether
it was reasonable to have a system of work that carried with it
some increased risk of injury or whether an alternate system of
storage was reasonably required.
The Court held that:
the system of work involving the stepladder was reasonable
because the task was a relatively simple, domestic one that did not
require particular training; and
a reasonable employer would not have adopted the alternate
method of storage (i.e. that would have negated the use of the
stepladder). Ms Cowie's appeal was therefore unsuccessful.
It reaffirmed the Magistrates Court's view that assessing
reasonableness involves a factual determination that takes into
account community standards but does not necessarily require the
elimination of risk.
If the Workers' Compensation and Rehabilitation Act
2003 (Qld) had applied, it is expected that the risk would not
have overcome the 'not insignificant' requirement in
section 305B(1)(b) and, even if it did, would not warrant a
complete change to the employer's storage system pursuant to
section 305B(1)(c) and (2).
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).