Safe systems of work - employees working outside the scope of their employment

27 May 2022

Neither the principal contractor on a construction site, nor the employer of an injured worker were liable for injuries suffered by a bricklayer working at the Perth Stadium complex. The court did not accept the accident occurred in the circumstances alleged, and in any event was satisfied that a safe system of work was in place.

In issue

The issues at trial were:

  1. whether the Plaintiff was instructed to remove the purlins; and
  2. whether the defendants had a safe system of work in place.

The background

The plaintiff was a bricklayer employed by NeoWest Building Co Limited (Neowest) to work on the Perth Stadium project. NeoWest was engaged by the first defendant, who was the principal contractor for the project. The first defendant engaged the second defendant to provide the overall supervision of the construction of the project.

On 6 October 2016, the plaintiff suffered an injury to his left arm when he attempted to remove two overhead steel purlins. The plaintiff commenced proceedings against the first and second defendant.

The plaintiff’s first allegation was that he had been instructed to remove the purlins by his own supervisor, and by one of the Multiplex supervisors. Both supervisors denied this conversation ever occurred and further alleged that they would never have given this instruction as purlins fell outside NeoWest's scope of works and this job could only be completed by a steel rigger.

The plaintiff’s second allegation was that, regardless of whether he had been instructed to remove the purlins, the system of work was unsafe as there was no system to ensure the timely removal of the purlins by the steel riggers on-site and they should have anticipated that a bricklayer would attempt to remove the purlins. The defendants argued that a safe system of work was in place, and that they had taken what reasonable steps should have been taken on their part to deal with such an issue.

The decision at trial

In relation to plaintiff’s first allegation, Judge Sweeney was not persuaded that the supervisors instructed the plaintiff to remove the purlins. She was also of the view that it was inherently implausible that both supervisors would have forgotten the alleged conversation with the plaintiff. Judge Sweeney found against the plaintiff on credibility and she was not satisfied on the balance of probabilities that the supervisors instructed the plaintiff to remove the purlins.

In relation to the plaintiff’s second allegation, Judge Sweeney found that the scope of works for each contractor were highly detailed. Judge Sweeney did not consider that a reasonable person in the position of the first defendant directly or through its agent, the second defendant, would have supervised the setting out by NeoWest of its own works, to ensure any potential obstruction was detected. Judge Sweeney found that the system in place was adequate and safe, and encompassed what a reasonable person in the position of the first defendant would have done to guard against the risk of harm. The plaintiff therefore failed to establish his case against either defendant.

Implications for you

Whilst this case turned largely on the plaintiff’s credibility, the decision helps clarify that a system of work does not need to address potential risks of harm that occur from employees completing tasks outside of their scope of employment.

Sanders v Multiplex Engineering & Infrastructure Pty Ltd [2022] WADC 31

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