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Which case won?

casea
The case for the injured worker
  • While it was not common for workers to go onto the roof of the shed, there were times when it might be required, such as for repairs, or to identify a problem, and it would be my responsibility as maintenance manager to do so.
  • Workers were never instructed not to go onto the roof.
  • My employer failed to train me in the availability of an alternative method of identifying which of the three pipes may be releasing steam.
  • My employer had safety documentation with respect to working at heights, but I was never given this documentation. There was no policy for working at heights outside or on the roofs of buildings.
  • There was a scissor lift available, but it would not have allowed me to see the leak and it could not have been accessed quickly.
  • There were no guardrails, fences, barricades or signs preventing access to the roof. No safety harnesses were provided or required for accessing the roof.
  • There was no webbing below the Alsynite or metal roofing panel above it.
  • It was foreseeable that a worker would at some point need to go onto the roof of a shed. My employer should have taken precautions which would have prevented injury.
caseb
The case for the employer
  • We have a zero tolerance drug and alcohol policy in the workplace. Any employee who attends the workplace under the influence of alcohol or an illicit drug is not permitted to commence or continue work.
  • The manager had been drinking alcohol at the time he came onto the site, in clear contravention of the policy, and he later failed to disclose to Workplace Health and Safety Queensland that he had been to a hotel.
  • The manager’s action in going up onto the roof of the shed did not form part of his duties, but was a chance event when he noticed steam when driving by the plant after hours.
  • He did not inform anyone from the company of his intention to access the roof of the shed.
  • A reasonable person could not have foreseen that a senior employee, holding a management position, would access the roof of the shed in failing light after consuming two alcoholic beverages, while talking on a mobile phone, in circumstances where he knew the roof contained Alsynite panels, but he was not able to see those panels.
  • Even if directions or training had been given to workers not to go onto the roof, it would not have stopped the maintenance manager from going onto the roof, given the circumstances of urgency which arose.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
a62%
b38%

Expert commentary on the court's decision

Phil GriffinManaging Director
“Investigating maintenance needs and making repairs was part of the maintenance manager’s duties, and he was required to be on call after hours, so it did not matter that the problem had happened after hours or that he saw it by chance.”
Supreme Court finds in favour of maintenance manager

In the case Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, the court determined that while it was not common for workers to go onto the roof of the shed, there were potential reasons why it might be required, such as to identify a problem or to carry out minor repairs or installations.

This would be the responsibility of the maintenance manager, Mr Scott Walker, whether personally or by directing others.

Absence of policies or training related to accessing roofs of buildings

The court found that workers were never instructed not to go onto the roof. The employer, Greenmountain Food Processing, had safety documentation with respect to working at heights, but there was no evidence it was ever given to Mr Walker.

There was no policy for working at heights outside or on the roofs of buildings. There was a scissor lift available, but it would not have allowed Mr Walker to see the leak and it could not have been accessed in a timely manner.

Court rejects employer’s argument that manager was under influence of alcohol

The court determined that Mr Walker would not have been under the influence of alcohol at the time and rejected the employer’s attacks on his credibility for not disclosing to Workplace Health and Safety Queensland that he had been to a hotel.

The court accepted Mr Walker might have felt that disclosing that fact might open him to unfair or unfounded allegations of intoxication.

Employee acted out of sense of duty and failed to appreciate extent of risk

The court accepted that Mr Walker was acting out of a sense of duty and on the advice of the boiler contractor in trying to observe where the leak was coming from, so as to ensure the plant could operate on Monday.

He was taking a risk in being on the roof, but did not appreciate the extent of the risk. Nothing caused him to stop and think about the risk or prevented his access to the roof, or prevented him from walking on the Alsynite.

Court determines risk of injury was foreseeable by employer

The judge identified the relevant risk of injury as the risk of suffering injuries when investigating a maintenance problem or undertaking a repair or installation that required Mr Walker to go onto the roof of the shed.

Investigating maintenance needs and making repairs was part of his duties, and he was required to be on call after hours, so it did not matter that the problem had happened after hours or that he saw it by chance.

The risk was foreseeable within section 305B(1)(a) of the Queensland Workers’ Compensation and Rehabilitation Act 2003 for those reasons and in circumstances where:

  • There was no prohibition on maintenance workers going on the roof
  • There was no requirement to wear a safety harness
  • There was no training about working on roofs
  • There was no barrier to impede access to the roof
  • There was an Alsynite area not designed to support the weight of a person which was not reinforced and which also did not have a barrier around it
  • There was no warning of where the Alsynite was
  • The maintenance manager (or another worker at his direction) may need to go onto the roof to investigate a problem or for repair work, which might arise in circumstances of urgency

In the view of the court, the risk of falling off or through the roof, particularly through the Alsynite, ought to have been known or identified on a risk analysis.

Simple and inexpensive precautions employer could have taken

While the probability of the risk occurring was low, it was “not insignificant”, especially given the seriousness of the potential injury. The burden of taking precautions to avoid the risk of injury was not great.

Even a simple and obvious warning sign such as “Danger: No access to roof without safety harness”, in accordance with a safe work method statement as set out in section 300 of the Queensland Work Health and Safety Regulation 2011, would have been compliant with the duty of care owed by the employer.

The court rejected the suggestion that directions or training of workers not to go onto the roof would not have stopped Mr Walker from going onto the roof in the circumstances of urgency, such as those which arose.

The court accepted that he was a dutiful and compliant employee who would have observed such a direction made for his safety. If properly trained, he would have considered the risk more carefully and would have used a safety harness to access the roof.

Contributory negligence and alcohol consumption

Greenmountain Food Processing argued that the appropriate finding in relation to Mr Walker’s contributory negligence should be 50 per cent.

The court considered the question of Mr Walker’s contributory negligence in accessing the roof, which he knew to have Alsynite panels, in failing dusk light, while engaged in a mobile phone conversation.

According to the judge, Mr Walker was “following instructions from an expert in the field” over the phone. Also, the issue of the consumption of alcohol was raised, which was found to “not add much to the equation”. Both of these arguments were thus declined by the judge.

The judge commented that “an employer must bring into account, in formulating a safe system of work, the possible distraction of an employee preoccupied with the task in hand”, as Mr Walker was. The judge concluded that his conduct amounted to “mere inadvertence, inattention or misjudgement”.

Mr Walker’s distraction in not fully considering the risk was due to his attention being focused on the urgent task, as he had not been specifically warned of the risk or trained in a safe procedure.

He was not disobeying any directions. It was an inadvertent error of judgment made under pressure, and the judge found this to fall short of contributory negligence.

Long-term impact of diffuse brain injury

After the injury Mr Walker had returned to his job, but he experienced physical and cognitive limitations in performing it and would need the support of a compassionate employer. Due to his physical injuries and particularly the diffuse brain injury he had suffered, he was found to be unlikely to progress in his role.

The judge also felt that he would be at a great disadvantage if he lost his current job at the meatworks or there was a change in the employer, as he could not become a tradesman or do manual work.

Mr Walker’s brain injury and subsequent limitations would prevent him progressing to higher management or seeking another similar role: he was “locked into trying to hold this job”.

After considering a variety of contingencies, and having regard to the principles in Malec v JC Hutton Pty Ltd, the court arrived at a judgment for Mr Walker for $967,383.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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