Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...The ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages after she injured her right hip in a fall after stepping sideways down from a safety step (Coles Supermarkets Australia Pty Ltd v Harris [2018] ACTCA 25).
The employee claimed that she was not trained in the proper use of the safety step and was not told by Coles that she should step backwards down from the step, and not to the side. The employee also claimed that Coles knew about the risks associated with the use of the step and did not provide appropriate managerial supervision of its use.
Coles argued that the yellow safety steps in question were used every day in its supermarkets and in other businesses across Australia and that the proper use of the safety step was obvious to any adult employee. Coles argued that the safety step - a sturdy, yellow, box-shaped step with triangular cut-outs at mid-height – was a simple piece of equipment, the safe use of which was obvious from looking at the object and no amount of training or supervision was necessary.
Coles also claimed that the risk of the kind of incident that occurred was “infinitesimally low” when examined in the context of how widely and frequently the steps were utilised.
Coles argued that the employee’s use of the step, in stepping down sideways instead of backwards, was a deliberate choice made by the employee to use the step in a way that she ought to have known would expose her to risk of harm. In this sense, Coles argued, the employee was guilty of contributory negligence.
The obviousness argument
The Court of Appeal found that the safe use of the step was not as obvious as Coles attempted to argue. The employee’s evidence was that, as the step had four identical sides, she thought that it was “fine” to step up or down from any side. The Court of Appeal rejected the argument that the use of the step was obvious.
The low probability argument
Coles’ argument that the probability of the incident occurring was “infinitesimally low” such that it did not breach its duty of care to the employee, was also rejected by the Court of Appeal. Prior to mounting this argument, Coles had already conceded at the initial trial that the risk of the incident occurring was not insignificant. The Court of Appeal found the submission that the risk was very low could not be easily reconcilable with the prior concession that the risk was not insignificant. Further, the Court of Appeal noted that evidence was presented at the trial that Coles had conducted a risk assessment in relation to the safety step and had recorded 385 incidents involving the safety step across its 750 stores between 2004 and 2009.
Coles submitted that the seriousness of the recorded incidents varied and that, in context, the number of recorded incidents was very small compared with the frequency of use of the safety step across its stores. Whilst acknowledging this submission, the Court of Appeal did not accept that it outweighed Coles’ earlier concession.
The contributory negligence argument
Having already rejected the obviousness argument, the Court of Appeal rejected Coles’ claims that the employee was contributorily negligent. It was not obvious to the employee on encountering the step that stepping down sideways was a safety risk. The Court of Appeal found that it was reasonable for the employee to expect that if there were some risk associated with the use of the step, it would be brought to her attention.
The Court of Appeal also noted that Coles did have training material related to the step, which advised employees to step down backwards from the step, but Coles had failed to establish that this material was ever bought to the attention of the employee.
The Court of Appeal dismissed Coles’ appeal.
Lessons for employers
Serious injuries can result from simple tasks, particularly when those tasks are repetitive and employees attempt to find, in their mind, quicker or simpler ways of performing those tasks.
Cutting corners on simple tasks can result in employees working in unsafe ways and employers should regularly monitor and audit how such tasks are being performed. Where the performance of particular tasks is not meeting an employer’s safety standards, employees should be corrected or retrained on proper performance of that task.
Similarly, employers should never assume that a piece of equipment which seems obvious to use and hazard-free will be used by all employees in the same way. Use of equipment, even simple tools, should be regularly monitored and audited to identify any corner-cutting and potential safety risks.
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