Employer escapes responsibility after shearer’s cook falls on loose step on occupier’s premises

21 May 2021

The New South Wales District Court found the occupier of a premises wholly liable, while the employer was found to have discharged its duty of care to its employee by undertaking a reasonable inspection of the premises.

In Issue

  • The substantive issue in this case was whether an employer could discharge its non-delegable duty to take reasonable care for its employees by merely making inquiries as to the safety of premises of an independent third-party occupier.

The background

The plaintiff was employed as a shearer’s cook by Shear Away Pty Limited (employer). On 28 July 2015, she arrived at Banoon station at around 5 p.m. Whilst exiting her accommodation on the third occasion, the entry step moved and fell apart, causing the plaintiff to fall and suffer injuries. She commenced proceedings against Top Hut Banoon Pastoral Co Pty Limited t/as Trustee for the Wakefield Family Trust (occupier), who was the occupier of Banoon. The occupier filed a cross claim against the employer, alleging a breach of a duty of care and a failure to inspect the occupier’s premises prior to the arrival of his employees at Banoon.

The plaintiff’s nominal employer, Mr Godde, gave evidence that this was the third occasion that he had stayed at Banoon. There were no prior safety issues with the stairs, or generally, at Banoon. At the start of each year, he would speak with the property owners as to the suitability of the shearer’s accommodation. He acknowledged that landowners were sometimes reluctant to spend money on the accommodation. Whilst he agreed that it would be prudent to inspect the accommodation for safety, he said that it was not practical to inspect every piece of timber on the properties. He also occasionally sent shearers onto the next station in advance and permitted them to use the shearing equipment without inspecting it first.

On the day of the incident, he and his employees arrived at Banoon at around 5 p.m. While unloading, Mr. Godde glanced at the step at various times and did not notice any issues. The only way that he could have discovered the step was unsafe was to have physically raised it or kicked it with his foot. Around 7 p.m., another employee alerted Mr Godde to the plaintiff’s injuries. He approached the plaintiff and noticed that the step was comprised of two pieces of timber on a plank, which was not affixed to the ground.

The following day, Mr Godde informed the owner of Banoon, Mr Wakefield, that the property was not adequately set up. Mr Wakefield advised that his son-in-law had failed to carryout various repairs prior to the commencement of the shearing season. The step was subsequently repaired and screwed into place. When Mr Godde attended Banoon in 2016, he observed that the steps had been replaced with new steel steps.

The decision at trial

Early in the hearing, the occupier admitted breaches of its duty of care. Weinstein J found that the risk of harm (being the risk of the plaintiff stepping on a timber step which was not affixed) was foreseeable, not insignificant, and that a reasonable person in the occupier’s position would have taken precautions by ensuring the step was affixed. He was satisfied that the occupier breached its duty of care to the plaintiff and the plaintiff would not have suffered the harm, but for the occupier’s negligence.

The employer’s duty to the plaintiff was to do what was reasonable. Weinstein J found that this did not involve Mr Godde arriving at Banoon before his employees and manipulating each step. Rather, it involved Mr Godde, on behalf of the employer, casting his eyes over the premises to ensure that it appeared safe. Consequently, a reasonable inspection would not have discovered the detached step and there was no causal connection between any breach and the plaintiff’s injuries. In Weinstein J’s opinion, the employer did not breach its duty to the plaintiff.

Weinstein J found for the plaintiff against the occupier alone for $992,866.36. Damages were therefore assessed pursuant to the Civil Liability Act 2002 (CLA).

In separate recovery proceedings between the employer and the occupier, the employer sought recovery of workers’ compensation payments made to the plaintiff pursuant to section 151Z(1)(d) of the Workers Compensation Act 1987 (the WCA). The parties agreed that the plaintiff had at least 15% whole person impairment and would be entitled to modified common law damages if the employer was negligent, pursuant to section 151H of the WCA. However, as the employer was not negligent and the damages exceeded the payment made by the employer pursuant to the WCA, Weinstein J found for the employer against the occupier for $380,758.29 plus interest.

Implications for you

It is well established that an employer has a non-delegable duty to take reasonable care for its employees. This includes carrying out site inspections to ensure that an occupier’s premises are safe for its employees. However, an employer only needs to do what is reasonable in the circumstances. If a reasonable inspection would not have disclosed the risk of injury to an employee, then an employer may not be negligent for an employee’s injuries.

An appeal by the occupier against the dismissal of its cross claim against the plaintiff’s employer (and in part against the damages award) was dismissed on 8 December 2021.

Julie Walker v Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust; Shear Away Pty Limited v Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust [2021] NSWDC 147

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