You are the owner and operator of a cardboard box making enterprise that purchased a new box making machine from a reputable manufacturer of such machines in Germany. The machine has multiple guards and safety devices. You install the machine in your factory and begin putting it to use immediately. Whilst not on point with the above hypothetical the recent decision of Schmidt v SJ Sanders Pty Ltd [2012] QDC 1481 will be relevant. There the worker was employed as a truck driver when he fell whilst alighting from the steps of his Volvo FM prime mover. The worker’s evidence was that on 15 January 2008 he had pulled over to the side of the road in wet conditions and alighted from the truck on a number of occasions, however, on the last occasion he slipped whilst placing his right foot on the top step of the truck’s access system.

There was much debate about the precise mechanism of injury with respect to when and whether the worker had his back to the outside of the truck and if he pivoted on the step. Ultimately, the Court accepted the worker’s evidence that as he twisted his body to exit the truck he also twisted his right foot so it came into contact with the wet rounded edge, of the top step with the result that he lost his grip and therefore his balance on the step and slipped.

At trial the employer alleged that the step was slip resistant and sufficient based upon the design and construction of the manufacturer. The employer’s evidence was that he would have his back to the outside of the truck before exiting the cabin and that the step was made of aluminium with a rounded edge.

The employer’s evidence was that there was no formal system of training in relation to access/egress issues for new drivers, however, it was argued that this was irrelevant on the basis that the employer was unaware of any defect in the design of the steps of the truck.

His Honour accepted that there was a reasonably foreseeable risk of injury associated with descending the steps of the truck. He noted the expert engineering evidence of both Intersafe and Dr Grigg that the rounded nose tread of the step was not slip resistant and found that the employer was or ought to have been aware that when the door of the truck was open the top step was exposed to the elements thereby giving rise to the risk that it could become slippery.

His Honour also noted and accepted the worker’s evidence that he had adopted a ‘side on’ type approach to the top step as opposed to the employer’s evidence that he would have his back to the outside of the truck. He also noted the worker’s evidence that he had adopted the same ‘side on’ type approach on previous occasions including in the employer’s depot and therefore concluded that the employer knew, or ought to have known, of the worker’s approach to egress from the truck. His Honour concluded that this approach gave rise to a reasonably foreseeable risk of injury that was enhanced in wet condition and based on the above the employer ‘must have been aware of this’.2

Critically, His Honour held:

In this case, in circumstances where it is recognised that falling when using access systems of trucks is an ongoing problem despite efforts by manufacturers to improve designs, I consider the defendant was required to recognise that there will be occasions when truck drivers will be distracted by emergency or some other cause from giving attention to their own safety. Accordingly there existed a distinct possibility that a driver who was hurry to exit a cabin in wet conditions would fail to take sufficient care to avoid injuring himself.

Inadvertence can also give arise from an employee not having been given proper instructions as to how to safely exit a truck in these circumstances. Therefore, in my view, inadvertence by a truck driver in exiting the defendant’s Volvos in wet conditions was a foreseeable possibility and therefore was a foreseeable risk of injury through inadvertence even by an experienced truck driver.3

In considering the Wyong v Shirt4calculus of how to respond to such a risk, His Honour found that the employer ought to have conducted its own risk assessment of the access system, devised a safe system of access and egress, instructed and trained its workforce in relation to the same and thereafter implemented and enforced such instruction and training.5 His Honour also concluded that a risk assessment of the truck’s access system would have identified the need to install slip resistant grip to the rounded nose tread of the step and accepted the worker’s evidence with respect to the minimal expense and inconvenience with which such measures could have been implemented.

His Honour found that the training and instruction that ought to have been given to the worker included direction that he maintain three points of contact at all times and undertake a ‘backwards descent’ which would have avoided the need for the worker to twist or pivot on the step which thereby alleviated the risk of slipping. He also opined:

As I have indicated this duty included not only a duty to establish and to train and instruct its drivers in such a safe system of work but to ensure it was implemented by enforcing it, such as by providing appropriate supervision. As Fryberg J said in Reck “Training to perform an action required more than issuing warnings and giving commands. It requires the employer to demonstrate and explain the action, and then for the employee to practice it until it becomes automatic”.6

His Honour noted that after this worker’s injury the employer applied a ‘3 points of contact’ sticker to its trucks and developed an access/egress policy which he found demonstrated that at the time of the worker’s injury there ‘existed a simple, practical, convenient and inexpensive way of tacking action to alleviate the risks’.7

It is clear that this case reinforces the onerous duty imposed on employers. This case also highlights the risk to employers in relying upon the design and manufacture of equipment purchased from reputable manufacturers without conducting their own risk assessment of such equipment in the context of its intended use in the employer’s workplace.

Whilst every case will turn on its own facts, it is likely that the decision of Schmidt v SJ Sanders Pty Ltd will have wider application to any number of industries and will not be limited to the trucking industry. Perhaps you ought to conduct a risk assessment of that new cardboard box making machine after all?