- The Court of Appeal of Western Australia was tasked with determining whether an employer could be found liable for injuries sustained by a worker as a result of him placing himself in what could arguably be described as a dangerous and compromising position.
On 18 February 2015, the respondent, Gregory Watson, sustained serious personal injuries during the course of his employment as a road train operator with the appellant, as a result of being struck by a bull. The incident occurred when one of the appellant’s trailers was being loaded with cattle, when a bull a baulked before entering the front pen of the trailer. As the respondent was attempting to encourage the bull to move forwards, the bull forced him up against the loading dock, causing the respondent’s injuries. The respondent sued the appellant in negligence on the basis that it failed to provide him with a safe system of work by failing to instruct him not to enter a pen with a baulked animal.
The decision at trial
The trial judge determined that in failing to provide those instructions and training, the appellant failed to discharge its duty to the respondent. Judgment was entered in favour of the respondent, ordering that the appellant pay him damages in the sum of $1,232,429.02 plus costs. A finding of 20% contributory negligence was made against the respondent.
The trial judge considered that of all the significant risks of personal injury arising in the work of transporting cattle, the risk of a worker sustaining an injury when attempting to handle animals that had baulked was ‘particularly significant’. Evidence was adduced at trial regarding a safer method for dealing with baulked animals, known as the ‘three man method’. The trial judge accepted that this method ought to have been taught to the respondent and instructions provided to use that method. The relative experience of the respondent as a cattle transporter was also in issue, given that he had worked in the industry since 1994.
The issues on appeal
The appellant argued 5 grounds of appeal,:
- The trial judge did not properly identify the relevant risk. The relevant risk ought to have been whether it was reasonably foreseeable that an experienced cattle operator would enter into a trailer with a large and unpredictable animal.
- The trial judge erred in finding that a reasonable employer would have used the three-man method to mitigate against the risk of harm.
- The trial judge erred in determining that if the appellant had provided directions to the respondent in relation to the use of the three-man method, the incident was unlikely to have occurred at all.
- The trial judge did not adequately resolve discrepancies in the evidence led by the appellant and respondent at trial.
- The finding of 20% contributory negligence was inadequate.
The decision on appeal
The Court of Appeal’s decision mainly turned on its determination in respect of the second ground of appeal. It was submitted by the appellant that the trial judge ought to have considered whether, in the exercise of reasonable foresight, a reasonable employer would be expected to warn or direct the operator from entering a confined trailer with a baulked bull having regard to the obviousness and magnitude of the risk; and the improbability of an experienced operator taking such a risk. In this regard, the court ultimately found that:
- Although the obviousness of the risk was a relevant consideration in the assessment of what a reasonable person may do, in the present case determination of what a reasonable employer would be required to do should be examined in the context of the appellant’s overarching duty to provide a safe system of work and his capacity to instruct and enforce that system. This included providing adequate instruction in relation to dealing with baulked animals to ensure a safe system of work was in place.
- While the experience of employees is one factor which may be relevant to reasonableness, a safe system of work is generally one that is safe for an ‘average’ worker with the employer’s enterprise. It is not a system of work safe for only those with significant skill or experience. It was noted that an employer even with a highly skilled workforce, ought to have in contemplation means by which the employees are to safely unload unpredictable large animals.
The Court of Appeal ultimately found that having regard to all the circumstances, the potential consequences of the risk were so significant, and the expenses associated with taking precautions were so low, that even though it was unlikely that an employee would place themselves in such a compromising position, a reasonable employer would have ensured that such conduct was prohibited.
In relation to contributory negligence, the Court of Appeal determined that the respondent was 40% contributorily negligent for the loss he sustained. In making this finding, it was noted that the respondent’s conduct fell well below the standard of a driver acting reasonably for his safety, and failed to have regard to the magnitude of the known risks associated with entering the pen with a baulking bull.
Implications for you
The decision highlights to employers the importance of having in place adequate training and instructions in order to account for reasonably foreseen events that may give rise to a risk of injury. It is always important to keep in mind that the court’s impose a higher duty on employers to ensure employee safety.