The WA Court of Appeal has upheld a District Court decision finding an employer negligent in circumstances where it knew workers were using a ‘short cut’ rather than the system of work the employer had devised.

John Warn was employed by Best Bar Pty Ltd (Best Bar) in its factory and was working on a machine called the ‘Robo 45’ which was used to bend steel rods. He had been using a short cut to complete the task, which required him to lift the bars out of the machine, whereas the standard method did not.

Mr Warn injured his back when he lifted the bars out of the machine. Best Bar knew that employees used the short cut but did nothing to prevent them.

The trial judge concluded that Best Bar’s knowledge of the short cut, the complete absence of instructions or limitations in its use and the lack of warnings of its dangers or any assessment of the practice meant that Best Bar was negligent.

Best Bar contended that Mr Warn led no evidence that the load was too heavy, nor that the task was unsafe or dangerous. The Court of Appeal found that, as a safe process had been established, it was for Best Bar to instruct its employees to take reasonable care to maintain and enforce the use of that process. The court considered that, even if the risk of a back injury from the particular activity was extremely unlikely, it was open to the learned trial judge to find that it was foreseeable and not far-fetched or fanciful.

Another ground of appeal was against the trial judge’s finding that Best Bar failed to provide Mr Warn with adequate information, instructions, training and supervision. While Best Bar relied on Mr Warn’s own evidence that he was properly and adequately instructed in the operation of the machine and in the completion of the task, the court considered that the fact that Mr Warn thought that he had been trained properly and thought he was completing the task in the manner in which he was trained, was proof that he had not been and the third ground of appeal was not made out. A ground of hindsight bias was also raised but was not made out.

This case provides employers with a timely reminder of the importance of enforcing safe systems of work for which procedures have been identified and instructions provided. If employees take it upon themselves to perform tasks in a different manner – with the knowledge of the employer – the employer will likely be found negligent for failing to either enforce the established safe system of work, or for failing to provide a system of work along with instructions and training for alternative methods of performing the task.

Best Bar Pty Ltd v Warn [2019] WASCA 15