Appeal a slippery slope for worker with laden bin

20 November 2019

Worker unsuccessful on appeal in connecting an employer's alleged breach of duty to his injury.

In issue

  • The content of the duty owed by the employer to the worker.

The background

The worker was employed by the appellant as a waste management labourer. He sued the appellant after sustaining an injury to his right knee while removing a bin liner loaded with rubbish from a garbage bin on 23 May 2008, the Scone Club Race Day.

The Scone Club Race Day is the biggest event on the appellant's calendar and, on the day in question, there were large numbers in attendance at the appellant's course.

Some wheelie bins were located on a grassy slope. It was argued on behalf of the worker that the danger associated with the task could have been reduced through the construction of concrete pads on which to place the bins. There was some discussion about whether the system for waste removal required wheeling the bin to a nearby skip or emptying the bin liner where the bin was situated.

The decision at trial

At first instance the worker was successful and was awarded judgment in the sum of $339,515.02 plus costs.

The Trial Judge found that the placement of concrete pads on the sloping lawns was a reasonable measure for the appellant to take to minimise or eliminate the risk of harm because they would provide a level platform on which the garbage collector could stand, thereby minimising the risk of slipping on food or fruit around the bin. Her Honour considered it unlikely the concrete pads would themselves constitute a risk of tripping since they would be supporting obvious and large black bins.

The issues on appeal

The appellant appealed, contending that the Trial Judge ought to have concluded that there was no foreseeable risk of injury that was measurable, or that there was no risk sufficiently substantial to warrant the steps the Trial Judge held should be taken.

The decision on appeal

The decision was overturned on appeal. It was found that the Trial Judge erred in concluding the appellant failed to take reasonable care by reason of its failure to install concrete pads upon which to locate the bins. There was no evidence of the gradient of the slope. There was no reliable evidence regarding the proposed pads to be installed. It was not certain that a concrete pad would be less prone to causing injury than grass. Concrete pads would be a permanent feature where on other less busy race days, bins may not be required. There was added difficulty in mowing grass around the concrete pads.

Implications for you

It is not enough for an injured worker to establish that a duty was owed and an injury was sustained. There must be a connection between the duty owed and the cause of the injury.

Scone Race Club Ltd v Cottom [2019] NSWCA 260

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