Hefty compensation payouts of up to $1 million ordered by courts serve as stark reminders for all commercial property stakeholders of their Work, Health and Safety (WHS) obligations. Findings handed down in the NSW and Queensland cases also provide valuable insight into duty of care and how misunderstanding its complexities creates a minefield for employers, contractors and sub-contractors alike.

The Queensland case involved a meat processing plant worker who was eventually awarded almost $1 million in a common law compensation claim secured by Hall Payne Lawyers after falling through the roof of a shed and sustaining serious injuries. The events surrounding the injury however were anything but straight forward.

Ill-fated mission

The man, Mr Walker, was employed by Greenmountain Food Procession Pty Ltd as maintenance manager, responsible for managing repairs, upgrades, employees and the smooth running of the entire plant and machinery – including the boilers which were essential to its operation.

Greenmountain had engaged contractors PBQ to perform maintenance on the plant’s boilers. One evening Mr Walker was on his way home about 5pm when he saw steam billowing from the rendering shed where the boilers were located and went to investigate before the afternoon light faded further.

PBQ were due to perform routine maintenance the following day, so Mr Walker called the relevant person at PBQ, Mr Butler, to discuss the issue and see what had to be done. To reach the tanks, Mr Walker used the stairs outside the shed to access the platform between the roof and the tanks. There was no rail preventing roof access from the platform, no sign warning of risk, nor any bollards blocking the access point.

Mr Butler told Mr Walker it was important to know which valve was leaking so it could be repaired, and so while still on the phone to Mr Butler, he proceeded onto the roof to get a better look.

Mr Walker was aware at the time that alsynite had been used to repair a hole in the roof of the shed, but not precisely where. He also knew alysnite was not up to weight bearing. Unable to see in the failing light of day Mr Walker stepped on the alysnite which gave way resulting in him falling seven metres onto the concrete below – losing consciousness, sustaining skull fractures, injuring his spine, wrist and knees and suffering a brain injury.

Employer’s defence

Worker’s compensation entitlements were granted – but Greenmountain was subsequently sued over failure to provide a safe work environment and breaching duty of care. Greenmountain’s defence claimed no breach of duty, arguing it was not reasonably foreseeable that Mr Walker would access the roof, that Mr Walker had been negligent in doing so, and that he was acting outside work hours, in failing light.

Significantly, the employer claimed it wasn’t generally necessary for staff to access the roof and contended Mr Walker’s actions were not part of his normal duties.

The findings

The Supreme Court of Queensland ultimately found for Mr Walker. Why? Because Greenmountain staff had accessed the roof previously and could be expected to access the roof for various tasks. What’s more, the court found that the maintenance manager may need to access the roof and that the nature of this role would mean this may occur outside regular shift hours, especially if there was an urgent reason to do so such as attending to emergency repairs.

The court also found that the alysnite presented a safety risk and that Greenmountain could have allayed this by raising awareness through training, issuing a safe work method statement (SWMS), or simply placing a sign at the entry of the roof from the platform – none of which had occurred. In the end, the court decided Mr Walker's actions did not meet the threshold for contributory negligence and awarded him  $967,383.39 by way of common law damages.

Doubling down on duty of care

In July this year, two decisions handed down by The New South Wales District Court delivered a wake-up call for contractors and sub-contractors by pointing out they need to be acutely aware of their WHS obligations. The decisions saw heavy penalties dealt to a roofing company over two serious incidents – the first involving electrical shock of two workers, and the second, a fall impacting four workers. 

The roofing company was conducting works as a subcontractor on a construction site at the time of both incidents. In the first incident, in February 2019, a worker was fatally electrocuted when high voltage power lines contacted a steel handrail. Another worker who tried to help received an electrical shock and severe burns on his legs.  Both workers had been subcontracted by the roofing company.

In second incident, also in February 2019, the roofing company’s workers were stacking asbestos roof sheeting in preparation for its removal when the weight of the sheeting caused the roof to collapse, sending two workers plunging four metres onto concrete and injuring another two.

SafeWork NSW conducted investigations and ordered the primary contractors cease work immediately and implement a range of safety measures.

When the matter went to court the roofing company was found to have neglected its duty of care to ensure safety processes and systems were implemented and followed. The roofing company director countered by arguing he understood safety issues were the full responsibility of the primary contractor.

But in the eyes of the law, a duty of care cannot be transferred to another person, the court ruling that “more than one person can concurrently have the same duty” and must comply with WHS laws.  

The roofing company realised it was in breach of the Act and pleaded guilty to failing to comply with its WHS duty and exposing workers to a risk of death or injury. Due to the early guilty pleas, it received a 25% discount on the penalties by the court and ordered to pay $450,000 and $150,000 respectively.

Importance of knowing obligations

Ultimately, it is not a defence for a business to suggest it is not responsible for complying with its WHS obligations to the workers it engages simply because another business was primarily responsible for a worksite,” said Shawn Skyring, principal lawyer with Coleman Greig Lawyers.

“These cases also show that businesses that subcontract labour may continue to have WHS obligations over those subcontracted workers, even though they are not employees.”

Considering the reputational damage and costly legal fees triggered by such cases, WHS experts advise all businesses involved in CRE and construction work to have:

  • appropriate risk assessment measures
  • Safe Work Method Statements (SWMS) especially if in high-risk construction work
  • WHS policies and procedures, and
  • controls to ensure that work is conducted in a safe environment and safe manner.