A recent decision of the New South Wales District Court has confirmed that an employer’s duty of care extends to anticipating and preventing foreseeable or actual non-compliance with safety controls and policies where reasonably practicable.
This case involved a sheep musterer who sustained fatal head injuries in a motorcycle accident that occurred on his employer’s rural property. The worker was not wearing a helmet at the time of the accident and this contributed materially to the severity of the damage from the accident.
The employer alleged that the employee was “skylarking” at the time of the incident and that other factors, such as his own unsafe driving and decision not to wear the helmet supplied to him, neutralised the effectiveness of any safety measures that might otherwise have prevented the worker’s death.
The Court concluded that:
- the employee was not acting outside the scope of his employment at the time of the accident (chasing dingoes which were a threat to the sheep), but even if he was, this did not absolve the defendant of responsibility; and
- reasonably foreseeable misbehaviour must be factored in to harm prevention strategies for the workplace where the measures that would cure the risk are practical and effective.
Judge Scotting held it was incumbent upon the employer in this case to provide further information and direction in relation to the importance of helmets because it was notorious that many riders chose not to wear them and the increased risk resulting from this practice is so severe.
The decision in this case neatly illustrates the general principles that duty holders must:
- take a proactive role in the promotion of compliance with reasonable safety measures;
- direct their minds to the risks of foreseeable (or known) non-compliance; and
- respond decisively, particularly where obvious and inexpensive counter-measures are available.