NSWCA upholds $588,515 award of damages in favour of an employee despite a finding that she had adopted an incorrect work technique when performing her duties.

Ms Fullick had been employed, on a casual basis, by her employer, Integrated Pty Ltd (Integrated) since late 2009. Integrated assigned Ms Fullick to work as a production operator at a factory premises occupied by Jurox Pty Ltd (Jurox). Ms Fullick’s tasks involved working in the ‘powder room’ and emptying bags of a sugar substance (dextrose) into one of two hoppers used for production.

The bags of dextrose (each weighing 25 kilograms) were stored on pallets which were wheeled into the ‘powder room’ and placed adjacent to the hopper by a lifter. On the system devised by Jurox, the bag was mechanically placed on a platform so that the operator could slice open the bag and its contents would empty by force of gravity into the hopper. There was no need for Ms Fullick to lift the bag until it was empty.

On 5 December 2011, whilst emptying a bag of dextrose onto a hopper, Ms Fullick suffered injury to her back. Instead of allowing the dextrose to cascade into the hopper by force of gravity, she leaned forward from her waist and using her right arm and twisting her spine, lifted the bag from the back. She received workers compensation until the end of 2012, when payments ceased.

At first instance

Distric Court Justice Mahony, found that Ms Fullick was not carrying out the operation in accordance with Jurox’s system or as she had been instructed to do so. His Honour further found that Jurox was under a duty to maintain and supervise the system of work to ensure that it was complied with and it failed to properly supervise Ms Fullick in the work carried out.

His Honour found in favour of Ms Fullick and awarded her $588,515 in damages.

Court of Appeal

Jurox appealed to the NSW Court of Appeal. The appeal was almost exclusively directed to the fact finding exercise by the primary judge. In a 2:1 majority (Justice of Appeal Leeming dissenting), the NSWCA dismissed Jurox’s appeal. The majority in the NSWCA held that the essence of the finding of liability was that, although the system of work was not unsafe (if implemented correctly) and that Ms Fullick had been adequately instructed, the manner in which she carried out the work was a departure from correct process, which created a danger, when she was permitted to continue.

Ultimately, it was the failure to correct the dangerous manner in which she performed the work that gave rise to the finding of liability against Jurox. The NSWCA remarked on the absence of any evidence from Jurox of any formalised system of supervision. In his leading judgment, Justice of Appeal Simpson was satisfied that ‘even a modicum of supervision would have exposed the incorrect method that’ Ms Fullick was using.

The NSWCA did not disturb the primary judge’s finding that Integrated, as Ms Fullick’s employer, was not a joint tortfeasor with Jurox. This is because Integrated had not been shown to be in breach of its non-delegable duty of care. Whilst Integrated carried out audits of Jurox’s system of work, it was considered that the audits would have revealed an adequate and safe system. According to the NSWCA reasonable care on the part of Integrated did not extend to supervision of Jurox’s supervisory regime. Therefore, no section 151(2)(c) reduction was made.

Justice of Appeal Simpson determined that Ms Fullick did not know that she was using an incorrect and risky technique and, maintained that there was no finding of contributory negligence.

Commentary

The NSWCA’s decision not to disturb the primary judge’s ruling on liability sends a clear message to employers/host employers to ensure that adequate supervision is maintained within the workplace. It is not enough to simply prepare a safe system of work and train an employee in that system of work. Employers/host employers also have an ongoing obligation to ensure that the worker adopts the correct technique and procedure when performing his or her duties.