The court apportioned liability for an employee’s injuries at 75% for a refinery site occupier and 25% for the employer.
In issue
- Whether the second defendant, Dalby Bio-Refinery (Dalby), occupier of the premises where repair works were being carried out, owed a duty of care to Speziali (the plaintiff) in providing a safe system of work, whether the plaintiff had been contributory negligent and the apportionment of liability between the plaintiff’s employer, the first defendant, Nortask Pty Ltd (Nortask) and Dalby.
The background
The plaintiff claimed damages for personal injuries suffered during the course of employment with the first defendant, Nortask. Nortask carried on a business of civil construction and engineering for the mining, gas and energy sectors. Nortask was engaged by Dalby to carry out repair works on a Cyclone, a silo which stood approximately 14.5 metres tall located on Dalby’s premises. At the top of the silo, there was a platform which was accessible from the ground via a series of three ladders and two intermediary platforms. The plaintiff, whilst carrying out repair works, suffered significant injuries when he slipped from the top ladder used to access the site of the repair works, falling 8.8 metres onto a concrete slab at ground level.
The decision at trial
Liability as between the plaintiff and Nortask was not in dispute. Negligence against Dalby was established. It was held that the mechanism of the plaintiff’s fall was foreseeable, and the risk of injury was not insignificant. A key finding was the failure of the access system which provided an unacceptably large gap between the bottom of the steel cage around the top ladder and the top guardrails of the mid platform which allowed a person who slipped from the top of the ladder to go over the top of the mid platform guardrails thereby falling to the ground. The gap rendered the access system non-compliant with the relevant Australian Standards. Identification of this non-compliance was the responsibility of Dalby as occupier of the premises. The risk associated with this non-compliance was foreseeable and Dalby failed to identify and rectify this non-compliance.
Dalby alleged contributory negligence by the failure of the plaintiff to take precautions against the risk of injury. The court found there was no contributory negligence on the part of the plaintiff. Amongst other factors, the court relied on the decision in Bankstown Foundry v Braistina [1986] 160 CLR 301, finding the plaintiff’s conduct in descending the top ladder resulting in a slip amounted at most to ‘mere inadvertence, inattention or misjudgment’ absolving him from any contributory negligence.
Nortask admitted liability to Speziali however submitted a proper apportionment between Nortask and Dalby should be 25/75 respectively. The court determined that 'equity is equality' and in this case could not apportion liability equally. Instead, it found the defendants’ culpabilities were distinguishable accepting Nortask’s submission on apportionment, concluding the dominant cause of the plaintiff’s injuries was the responsibility of Dalby, as occupier, in identifying and rectifying a foreseeable risk of injury.
Implications for you
Occupiers should not rely on contractors to identify risks and take precautionary steps to avoid personal injury. An occupier has an obligation to ensure their plant and equipment is free of any foreseeable risks and are compliant with Australian Standards. They are to take all necessary steps to provide a safe system of work and avoid exposing any contractor, or employee to a foreseeable risk of injury. Occupiers must undertake risk assessments in relation to plant and equipment on their premises to identify reasonably foreseeable risks and ensure a safe place of work. It should not be assumed that primary responsibility for this can be delegated to a third party irrespective of their qualifications and expertise. Furthermore, the case highlights contributory negligence may be narrowly determined in cases where there are pre-existing, obvious and inherent foreseeable risks associated with safe work practices.
