Download: 2016 PUB BC Employee fault no effect on employer liability - 13 July.pdf

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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 context

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 rules.

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 $40,000.

The appeal

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 relevant regulations.

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 injury.

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.