Court of Appeal decision – Host employer not liable for attempted murder by labour hire worker; NSW employer fined over $200,000 for misleading SWMS; Employer fined $120,000 for serious WHS breaches after failing to follow own SWMS; Former NRL player commences first concussion legal action.
“Court of Appeal decision – Host employer not liable for attempted murder by labour hire worker”
Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright  NSWCA 21
A host employer was successful in its appeal against a decision that found it was negligent for a labour-hire worker’s psychiatric injury, which allegedly resulted from a murder attempt by another labour-hire worker.
In our April 2015 Workplace Safety and Insurance e-update, we reported on the NSW Supreme Court decision in Wright by his tutor Wright v Optus Administration Pty Limited  NSWSC 160.
Glenn Wright (the Worker) was employed by labour-hire company IPA Personnel Pty Ltd and on-hired to Optus Administration Pty Limited (Optus) to work in its call centre. The Worker, together with another labour-hire worker employed by a different labour-hire company, Mr "G", was at Optus’ premises for a training course.
Early one morning during the course, G was found on the roof of the building in a “trance like state” and asked to see the Worker. The Worker was asked if he would go onto the roof and assist G. On the roof, G attempted to lift the Worker and throw him over the balcony and punched him until restrained by another employee. Subsequently, it was discovered that G had “formed a desire to kill someone” and that someone was the Worker.
The Worker suffered injury to his head and a psychiatric injury (chronic severe PTSD).
In the initial proceedings, the NSW Supreme Court held that Optus owed the Worker a duty of care, which extended to taking reasonable care to protect him from the criminal acts of others in the workplace.
Decision on Appeal
Optus appealed the decision on a number of grounds, including the finding that it owed a duty of care to the Worker not to cause mental harm and had breached that duty of care.
Justice Basten held that the relevant duty was under section 32 of the Civil Liability Act 2002 (NSW), which required Optus to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.
Justice Basten noted that the trial judge held that Optus, via the collective knowledge of its employees, was negligent because it ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness. It was Justice Basten’s opinion that it was impermissible to combine the knowledge of Optus employees and attribute this knowledge to the Company to demonstrate a breach of duty of care.
Justices Basten and Hoeben agreed that to identify the duty Optus owed to the Worker required the identification of the risk which might give rise to mental harm. There was no finding that Optus should have foreseen the risk that G may assault or attempt to murder the Worker and that the Worker would suffer a psychiatric illness as a result. Accordingly, Optus did not have a duty to take reasonable care to protect the Worker against mental harm.
Justice Basten also held that Optus was not vicariously liable for the acts of its employees, as again, it was not foreseeable that G may have assaulted or attempted to murder the Worker, which might cause a person of normal fortitude to suffer psychiatric illness.
The Appeal was allowed. The Trial Judge’s Orders, including the awarding of nearly $3.9 million in damages to the Worker were set aside.
Work Health & Safety
“NSW employer fined over $200,000 for misleading SWMS”
SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex No 2  NSWDC 20
- The employer was prosecuted in the District Court of NSW and found guilty of failing to comply with a health and safety duty and thereby exposing a worker to a risk of death or serious injury, contrary to section 32 of the Work Health and Safety Act 2011 (NSW).
- The employer was ordered to pay $220,000 in fines and $80,000 in payment of SafeWork’s costs.
- A Safe Work Method Statement (SWMS) must be:
- clear and drafted by a person who can foresee all risks and provide recommendations to minimise and control risks; and
- enforced, ensuring that workers are aware of them and trained in their contents.
In February 2014, Mr Lever drove a semi-trailer to the Tamex Depot to deliver freight. At the depot, Mr Mackersey, an employee of Tamex, began to assist Mr Lever to unload the truck using a forklift. Whilst unloading the truck, Mr Lever was struck in the head by the door of the freight cage. He suffered a depressed skull fracture and a traumatic brain injury. As a result of the incident, Mr Lever continues to suffer brain impairment, right-sided deafness, dental injuries and injury to his lower back.
Mr Lever was a regular driver to the Tamex Depot. Mr Lever and Mr Mackersey had developed a practice for unloading the truck, which allowed Mr Lever to come into close proximity of the operating forklift (i.e. within 1-2 metres).
In 2010, Tamex adopted a Safe Work Method Statement (SWMS) that required a 5 m pedestrian exclusion zone around an operating forklift. The Court found that the language used in the SWMS was “ambiguous” and “ineffective”. Further, the 2010 SWMS was not implemented or enforced and employees had not received training in it.
In May 2013, Tamex’s HR Manager circulated a draft SWMS, which contained the requirement of a Traffic Management Plan (TMP), which indicated that Tamex had actual knowledge of the measures available to eliminate risks. Unfortunately, the 2013 SWMS was not implemented and did not contain a requirement for securing of the cage doors, due to the HR Manager not foreseeing this particular incident.
Tamex adopted the May 2013 SWMS in March 2014, which included a few modifications – such as the requirement to secure the cage doors.
Since the incident, Tamex has continued to make further improvements to its SWMS.
Prosecution in the District Court
In the 2016 proceedings, Judge AC Scotting found:
- The unloading practice usually adopted by Mr Lever and Mr Mackersey exposed Mr Lever to a risk of death or serious injury as a result of being struck by the forklift or a falling object from the forklift.
- The incident was caused by Tamex because it had failed to implement and enforce a TMP at the depot that provided:
- an exclusion zone around an operating forklift;
- the provision of a designated truck driver safety zone;
- instructions to truck drivers to remain in the truck driver safety zone whilst their vehicle was being loaded or unloaded;
- that forklift operators were to immediately cease activity if a pedestrian came within 5 m of the pedestrian exclusion zone; and
- that cage doors were to be secured to the cage.
- The risk of injury to a pedestrian in close proximity to an operating forklift was obvious and foreseeable and Tamex had identified these risks in both the 2010 and 2013 SWMS.
- Had the risk been identified by Tamex, measures could have been taken to eliminate or minimise the risk.
Tamex was found guilty of the offence and the matter was listed for a sentencing hearing.
Judge Scotting acknowledged that Tamex had taken steps prior to the incident with respect to its health and safety duties and obligations and steps were taken to improve its systems immediately following the incident. Further, Tamex accepted responsibility for its failings that led to the incident, which resulted in Mr Lever’s injury and appropriate support was offered to him.
Additional mitigating factors included that Tamex did not have any prior convictions, was a good corporate citizen that provided a number of services and scholarships to the wider community and who cared for the environment.
Taking the circumstances and mitigating factors into account, Judge Scotting imposed a fine in the sum of $220,000 on Tamex and ordered Tamex to pay SafeWork's costs (totalling $82,000).
Comment – what can your business learn from this decision?
It is important that employers take their health and safety duties seriously. Over the last few months, the focus has been on businesses in the transport industry due to failures to comply with their health and safety duties.
For example, the County Court of Victoria (VCC) ordered Toll to pay $1,000,000 (one of the highest safety fines in Australian history) for its failure to meet its WHS duties (The Director of Public Prosecutions v Toll Transport Pty Ltd  VCC 1975). The VCC made it clear that competent risk assessments and timely action were critical to safety legal compliance. Having accurate risk assessments ensures that accurate SWMS are developed.
Employers are encouraged to regularly check the accuracy of their SWMS and risk assessments to ensure they are up to date with industry standards and codes. If there are any amendments that are made to these documents, training should be provided and new copies of the SWMS made available to all workers.
“Employer fined $120,000 for serious WHS breaches after failing to follow own SWMS”
SafeWork NSW v United Roof Tiling Pty Ltd  NSWDC 14
An employer who pleaded guilty to breaches of the Work Health and Safety Act 2011 (NSW) (WHS Act) was fined $120,000.00 after several roof tiling employees fell from an unsupported awning.
The employer failed to follow its own Safe Work Method Statement (SWMS) and its director knew about insufficient support for the awning but failed to guarantee that it was corrected prior to employees commencing work.
The employer was a roof tiling company, engaged by a third party to provide roof tiles and roofing services for a two storey, residential duplex project.
Before roof tiling work on the site began, the employer’s director attended the site to quote for the work. On viewing the site, the director identified that the existing support for the roof awning, overhanging the first storey balcony, was inadequate. The director requested that the site manger erect two additional supports under the awning. The site manager erected only one additional support.
On the day roofing work was to commence on site, the director attended the site along with some of roof tiling employees. The director observed that only one additional support had been erected and mentioned this to the site manager. The director then left the site.
The employer had a SWMS for laying roof tiles that addressed the risk of falls. The SWMS stated that fall protection in the form of netting or other methods must be used, harnesses must be worn and anchored, and safety roof rails must be installed where scaffolding was not provided. On this site, there was no netting or other fall protection, no harnesses and the scaffolding erected by the third party builders was incomplete and not compliant with Australian standards.
In short, the employer failed to follow its own SWMS.
The incident occurred when three employees were standing on the awning section of the roof after tiling had been completed and the awning gave way.
One employee fell two storeys to the ground and sustained very serious injuries. The other two employees fell onto the first storey balcony and sustained less serious injuries.
The director was charged with, and pleaded guilty to, breaching section 32 of the WHS Act.
Decision of the District Court
In determining the appropriate penalty, the Court considered the seriousness of the breach, general and specific deterrence, the foreseeability of the incident and the resulting injuries and measures the employer could have taken to prevent the incident and any injury.
The Court particularly considered the fact that the employer did not follow its own SWMS and that the director had identified a safety risk in the inadequate awning support but failed to ensure the risk had been removed before work commenced.
The Court determined the breach to be serious and warranted both general and specific deterrence. The Court also found that the employer could have prevented the incident and the injuries suffered by the employees by taking safety precautions, including those in its SWMS.
Accordingly, the Court ordered the employer to pay a fine of $120,000.00 and SafeWork’s costs.
Comment – what can your business learn from this decision?
This decision is a timely reminder for all employers to review and update their SWMS regularly and to ensure there is strict compliance with SWMS.
Employers are also reminded that where a safety risk is identified and a solution is proposed, that risk should be eliminated before work is commenced or continued.
“Former NRL player commences first concussion legal action”
In late February 2017, former Newcastle Knights (the Club) player James McManus commenced legal proceedings in the NSW Supreme Court against the Club regarding the management of concussions he experienced in the National Rugby League (NRL) competition – the first of its kind in Australia.
McManus was forced to medically retire in August 2016 due to his head injuries. McManus last played in July 2015, in a match where he suffered a number of concussions. He was subsequently diagnosed with minor brain damage and scarring on the brain.
The issue of concussion management became a hot topic for sport in Australia in light of the class action litigation in the USA commenced by former National Football League (NFL) players against the NFL for damages arising out of injuries arising from concussions. In 2015, settlement was approved with the NFL agreeing to pay former players the total sum of $1.3 billion.
More recently, the NRL has taken measures to manage the issue of player concussions. “The Management of Concussion in Rugby League Guidelines” (the Guidelines) were introduced and over time they have been strengthened to ensure enhanced player welfare.
The litigation initiated by McManus is a reminder for sporting clubs and organisations of their responsibility to ensure the work health and safety of players whilst they are on the field.
Further, officers of clubs and organisations have work health and safety obligations to exercise due diligence to ensure that the club or organisation complies with their duty to ensure a safe system of work.
Other workers, such as medical professionals and trainers also have duties and obligations to take reasonable care that their acts or omissions do not adversely affect the health and safety of other players and to follow health and safety policies or procedures, for example, the Guidelines.
Finally, players have duties to ensure their own health and safety and the health and safety of other players.
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