The decision of Henry J in Savage v Dangan Pty Ltd handed down on 8 November 2012 discussed an employer’s duty in relation to a safe system and place of work owed to its workers pursuant to the Workplace Health and Safety Act (the WHSA) and at common law.

The Plaintiff pursued a claim for damages relying on a breach of statutory duty, pursuant to s 28 (1) of the WHSA (pre July 2010 amendment) and/or a breach duty at common law.  

The Plaintiff succeeded with the claim for a breach of the WHSA but not a breach of the duty owed at common law.  

The Plaintiff (Worker) was employed as a cleaner at the Defendant’s (Employer) backpacker hostel business. The Worker was first employed in 1999. She had twelve years experience as a cleaner. At the commencement of her employment she was given no organised induction, training or written explanation of her duties.  

Although never specifically instructed by the Employer to do so, the Worker would sometimes use a long handled broom to brush down the ceilings and walls of the corridors. She would hold the broom outstretched directly up above her with her head craned back and eyes wide open looking up.  

On 6 November 2005 when the Worker was performing this task she felt something land in her left eye. She developed infectious keratitis and lost approximately 85% of her normal vision in her left eye.  

The matter proceeded to trial on 5 November 2012 on the issue of liability only.  

Findings

Statute

Section 28 (1) of the WHSA prior to the July 2010 amendments read “an employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work”.  

By virtue of s37A of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 (effective from 1 July 2010), it extinguishes any right to take a civil cause of action arising from a contravention of a provision of the WHSA.  

The significance of the amendment meant that statute no longer imposed civil liability on employers who failed to ensure the health and safety of their workers by simply causing injury to those workers.  

This amendment acts retrospectively and applies where:

  1. There is a contravention of the WHSA post July 2010; or
  2. Proceedings for the action have not started before July 2010; or
  3. Proceedings for the action commenced after 8 August 2008 but the trial in the proceedings has not started before July 2010.

Henry J found there was no issue that the WHSA, as it stood prior to the s37A amendment, applied. The Worker commenced litigation on 2 May 2008.The retrospective reach of the abolition of civil liability did not extend to the time the Worker commenced proceedings. This meant that the WHSA continued to have the effect of imposing civil liability on the Employer.

Henry J went on to consider whether there was a breach of statutory duty. He stated s 28 (1) if the WHSA (as it stood at the time of the Worker’s injury) imposed a very high obligation on an employer than that placed on an employer at common law. He expressed the high obligation is apparent from the use of the word “ensure”. He went further to say under s 28 (1) an employer has to discharge a workplace health and safety obligation for exposure to risk. That is, in properly managing risk, there is a positive obligation on an employer to identify hazards and assess risk.  

Henry J indicated direct observation of how the Worker was performing her task of brushing overhead would have identified a risk. He opined despite the fact that the risk of such an injury occurring was moderate to low and the risk of such a serious injury occurring was low, it would have been simple for the Employer to adopt some control measures such as supplying the Worker with safety glasses.  

Henry J stated the Employer neither identified the hazard of particles falling towards the Worker nor did it assess the risk of it occurring. In fact, the Employer did not even know of the method used by the Worker when she cleaned the ceilings and it took no measure to ensure the premises were being cleaned safely.  

Henry J found the WHSA had the effect of rendering the Employer civilly liable for failing to ensure the safety of the Worker and therefore liable for her injury suffered due to that failure.  

Common Law

For completeness Henry J went on to discuss the obligation of the Employer at common law. He opined under common law the Worker does not have the benefit of the higher obligation imposed on the Employer by statute.  

He expressed under common law the question was whether an employer, would, acting reasonably, have taken any action in response to forseeability. He stated when considering risk, it is not only the chance of the event occurring but the likelihood of the event causing some significant harm. The common law threshold was obviously lower than generally ensuring workplace health and safety under the WHSA pre July 2010. He expressed the activity was being undertaken by an experienced cleaner who had performed the task for years without incident. He opined the probability of an eye injury was so low that the Employer acting reasonably was unlikely to have taken any action by way of response.  

Henry J stated ultimately the Worker’s claim for negligence must fail under common law. At common law the Employer discharged its duty of care.  

Conclusion and Implications

The implications of this case are limited due to the abolition of the right to take a civil cause of action for breach of the WHSA. The significance of the amendment means that it is not enough for a worker to bring an action based on the notion that ‘had their safety been ensured they would not have suffered injury’. Rather it is the chance of the event occurring and the likelihood of the event causing some significant harm that needs to be considered.  

Had proceedings been commenced for this incident today the Worker would not have the benefit of strict liability imposed on the Employer by statute. Ultimately the Worker would not have received judgement for breach of statutory duty.  

Despite the limited implications of this case it is still illustrative that, when considering risk and the chance of an event occurring, it is beneficial for an employer to actually observe their workers perform tasks at the outset of their employment and through training to properly identify a risk. Something as inexpensive as providing safety glasses may save an injury occurring.  

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