The Court reinforces the importance of adequate training and instruction even where the employee has extensive experience

19 May 2021

The New South Wales Supreme Court found that the employer failed to provide a safe system of work even where the plaintiff knew of the risk associated with lifting heavy items from an awkward position.

In issue

  • Whether the employer provided a safe system of work; and
  • The extent of the plaintiff’s contributory negligence where she was aware of the risk and ought to have taken appropriate care to ensure her own safety.

The background

The plaintiff sustained injuries on 28 December 2003 when she bent down to retrieve and lift olive drums weighing around 13kg or thereabouts. The plaintiff suffered an injury primarily to her back and neck, but secondary to that, a urinary/bladder impairment, a gastrointestinal injury due to her medications and a psychological injury.

The plaintiff’s claim was brought against the Workers Compensation Nominal Insurer because the employer was no longer operating at the time of her claim. The plaintiff claimed negligence against the employer because the system of work in place, including the location of the olive drums, was unsafe. Further, the direction to lift the olive drums in the manner it was performed was negligent.

The employer argued contributory negligence by the plaintiff due to the fact that she had lifted the olive drums against instructions issued by the manager. These instructions being that all female shop assistants were not to attempt to lift the olive drums. However, the Court accepted that the manager did not pass on these instructions to the plaintiff.

The decision

The Court awarded judgment in favour of the plaintiff in the sum of $1,138,449.60.

The Court found that the plaintiff’s injuries were caused by the manner in which she was lifting the olive drums from an awkward position. Accordingly, her injuries were foreseeable and significant in circumstances where there were reasonable alternatives available. These alternatives being that the plaintiff should have had assistance available or that the olive drums should have been stored in an area that would not have involved awkward posture or positioning when lifting.

Against the proposition of contributory negligence, the Court accepted evidence that the plaintiff had asked the manager to perform the task and/or to assist her in the task, which the manager denied. Accordingly, the Court noted that were it not for this refusal, the plaintiff would not have done it herself and subsequently injured herself. Considering this, the Court assessed the plaintiff’s contributory negligence at 7.5% for failing to look after her own safety as the plaintiff acknowledged, from her previous experience, the risk associated with lifting heavy items from an awkward position.

Implications for you

This decision reinforces the importance that employers should ensure that training and instructions are adequately conveyed to employees. In particular, for employees tasked with strenuous manual work such as heavy lifting. Further, it is a reminder that even when the risk of injury may appear obvious to experienced employees, employers should provide all employees with comprehensive training.

Franco v Workers Compensation Nominal Insurer (No 2) [2021] NSWSC 129

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