Employee contribution to negligence: The distinction between innocent error of judgement and intentional ignorance of risk

27 November 2020

The Court found the Defendant to be liable for injuries sustained by the Plaintiff while outside of work hours, without authorisation and without the Plaintiff following some safety procedures.

The Plaintiff was found to not have contributed to the negligence as it was noted that his error was one of judgment under pressure and not an intentional ignorance of risk. The Court awarded judgment to the Plaintiff in the sum of $967,383.39 clear of the refund to WorkCover Queensland.

The background

The Plaintiff commenced proceedings after suffering serious injuries as a result of falling through a faulty ceiling panel at the Defendant employer’s meatworks factory. The Plaintiff was employed as a Maintenance Manager and noticed what he believed to be smoke coming from the building while driving past after work hours. The Plaintiff went on to the roof to investigate. After realising it was steam from a damaged boiler, the Plaintiff was on the phone attempting to get details to log a job for the repair, and stood on an alsynite panel on the roof, which broke and resulted in his fall.

In issue

  • The Court was required to consider whether the Defendant breached its duty of care to provide a safe workplace by failing to have a safe work method for access to the roof or a requirement to use a safety harness. The Court was also required to consider whether the Defendant failed to take reasonable precautions by not erecting barriers/warning signs to indicate the existence of the alsynite panels. The Defendant argued that the Plaintiff was contributorily negligent as he was on the roof while on the phone, in fading light and without seeking permission to access the roof.

The decision at trial

The Court agreed with the Plaintiff’s assertions that the Defendant should have taken preventative steps to deter people from walking on the roof, including safety instructions should anyone be required to do so (which was evidenced to be an infrequent requirement). It was held that a reasonable person in the position of the Defendant would have taken these precautions and taking them would have prevented the injury from occurring.

In relation to contributory negligence, the Court found that while the Plaintiff made an error of judgment while under pressure, there was no deliberate decision by the Plaintiff to ignore a risk. The Plaintiff operated ‘on-call’ and was required to make judgment calls on whether and how to rectify problems that occurred – it was noted that the problem was serious in nature.

The Court awarded judgment in favour of the Plaintiff in the sum of $967,383 clear of the refund to WorkCover Queensland – 75% of which was for future economic loss.

Implications for you

This case provides some insight into the distinction the Courts will make when considering contributory negligence between a deliberate ignorance of risk and an innocent or inadvertent judgment call or inattention. The case also places emphasis on the requirements of an employer to ensure that where a hazardous location is in existence – proper safety procedures or prohibitive access measures are required to be in place, even if access to the subject area is infrequent or rare.

Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329

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