What happens to an employer when they fail to adhere to adequate workplace health and safety standards? That employer might be on the receiving end of an order to empty their pockets, according to the NSW Court of Appeal. This announcement comes after the Court’s landmark decision in Cavanagh v Manning Valley Race Club Ltd  NSWCA 36, to award upwards of $1 million to a worker who was permanently injured because of their employer’s negligence.
Employers often miss the mark when it comes to keeping their workers safe during the nine-to-five (actually, during all hours of the workweek, as you’ll later find in the case examples). Some speculate this may because many employers fail to comprehend the importance of having clear policies and procedures, explaining what a safe workplace looks like.
What is Workplace Health and Safety?
Workplace health and safety is an umbrella term, relating to the management of risks to the health and safety of every person in your workplace. Within Australia, there are model workplace health and safety laws in existence, including the Work Health and Safety Act 2011 (Cth) (“WH&S Act”). Each state and territory (aside from Victoria) have implemented model safe workplace laws into legislation.
It’s important to note a few things about the WH&S Act:
- All persons conducting a business or undertaking (“PCBU”) have a primary duty of care to ensure the health and safety of workers and others at the workplace, so far as reasonably practicable. Importantly, providing a safe workplace is a legal requirement applying to all PCBUs, which cannot be excluded by law.
- Employees are not the only personnel protected by the WH&S Act. The term ‘workers’ extends to people who carry out work in any capacity. This includes, but is not limited to, contractors, labour hire personnel, apprentices, trainees, persons conducting work experience and volunteers.
- In return, workers have a duty to take reasonable care for their own health and safety and that of others who may be impacted by their acts or omissions. Understandably, workers are also required to follow workplace health and safety instructions, policies and procedures.
- In addition to the model WH&S Act, most jurisdictions also have their own workplace health and safety laws and a regulator who enforces them. Put simply, each state and territory are responsible for their adoption, regulation, and enforcement of the model laws.
- There are various penalties for both individuals and corporations who are subject to workplace health and safety laws. The harshest penalties comprise of imprisonment for serious offences (for example, where a worker dies because of a workplace health and safety breach, as will be considered later) and monetary penalties that delve into the millions.
With penalties as harsh as imprisonment in some states or a multimillion dollar fine, it is self-explanatory why employers need clear, incontestable workplace health and safety policies and procedures. Although they might be costly to create and implement, in the long run, quality workplace health and safety practices will save you and your business both time and money.
Employer protection is not the only benefit. In terms of workplace culture, workplace health and safety practices show your employees that their health and safety is important, and that your business cares and is committed to ensuring they are safe at work.
Here are some examples of what can happen when employers get it wrong.
Reflection Required on Workplace Health and Safety Failure
No doubt Manning Valley Race Club (“the Club”) will be reflecting on their workplace health and safety policies, after their failure to equip their tractors with rear-vision mirrors cost them a hefty payout in the matter of Cavanagh v Manning Valley Race Club Ltd  NSWCA 36.
Racecourse Manager, Anthony Cavanagh (“Mr Cavanagh”), maintained the Club’s racecourses for approximately 12 years. Part of his role was to operate a tractor with a ‘land leveller’ attached to the rear of the tractor. The very nature of this task required Mr Cavanagh to look over the back of his shoulder (think of the common ‘shoulder check’ used while merging lanes).
He told the Court that he needed to perform this motion every few seconds. Doing this motion, every few seconds, for 3-4 hours, six days per week is undeniably a recipe for a very sore neck and back (perhaps why modern tractors attach the leveller at the front of the vehicle).
But Mr Cavanagh said the repetitive act of turning his neck caused more than a bit of discomfort. Twelve years of backwards glancing left him with serious injuries to his back and neck, which equated to a 27% whole person impairment. Inevitably, Mr Cavanagh was unhappy when the Club refused to take any accountability.
On Appeal, the Court held that the Club was negligent in failing to provide a safe workplace and method of smoothing the land and awarded Mr Cavanagh $1,004,111 in damages. The Court remarked that it was unreasonable for the employer to take no action at all. In warning off other employers who might be tempted to cut corners, Justice Leeming observed that:
“A reasonable response by his employer to the foreseeable risk of harm posed by [the worker’s] employment would have been not to permit that to occur for many years, but instead to have installed a mirror, or perhaps a rear-vision camera, or use a different tractor with a swivel seat…”
Key take-away for employers: have open, frank dialogue with your employees about their workplace health and safety concerns. It might also be useful to try and think outside of the box when it comes to meeting your expectations regarding what a safe workplace looks like.
Miner’s Not-So-Minor Incident
An additional $1.5 million was slipped into the wallet of miner, Jamie Tyndall (“Mr Tyndall”), after his successful negligence claim against former employer, Kestrel Coal (“Kestrel”). Mr Tyndall was a machinery operator at an underground coal mine in the Bowen Basin, the Court heard in Tyndall v Kestrel Coal Pty Ltd (No 3)  QSC 119. For approximately six years, Tyndall operated a ‘loader’ – a machine used to cut through underground matter to extract coal.
This aggressive machine would vibrate so furiously that Mr Tyndall reported his whole body would ‘buzz’. To cut to the chase, your body involuntarily shaking for a whole nine-hour shift is not only uncomfortable; it is also dangerous. But, of all the injuries that could occur while operating high-risk machinery, it was Mr Tyndall’s unassuming left ring finger that caused himself, and Kestrel, grief.
After suffering agonizing pain and noticing considerable discolouration in his left hand, Mr Tyndall rushed to the Emerald hospital. He was soon diagnosed with ‘white finger syndrome’ – a disease where excessive vibration causes the hand to swell, tingle, go numb and even lose dexterity. Following this, Kestrel found themselves defending a negligence claim in the Queensland Supreme Court.
It was held that not only was Mr Tyndall’s injury reasonably foreseeable, but Kestrel had anticipated its occurrence. This was evidenced by the fact that Kestrel was aware the machine should be operated in two-hour intervals and the existence of internal policies, which sported considerable information on how to avoid white finger syndrome.
After consideration of the competing medical evidence, it was held that Kestrel had breached their duty of care and failed to adhere to their own workplace risk guidelines and recommendations of vibrational assessment reports. Consequently, Mr Tyndall was awarded $1,483,318.57 in damages.
Key take-away for employers: be cognisant to your obligations arising under relevant workplace health and safety instruments – particularly ones created and adopted by your own workplace.
University’s Workplace Health and Safety Case Collapses
Warning: for those easily shocked, take a seat before proceeding.
A worker whose knee collapsed when she walked over to a colleague’s desk, is set to appear before the South Australian Employment Tribunal, after her employer failed to have her compensation claim thrown out. In Robinson v University of South Australia  SAET 23, the University employee stood from her chair, where she then fell, injuring her elbow and knee.
She wasn’t pushed; she wasn’t shoved; she wasn’t even touched. Medical evidence revealed that Ms Robinson even had an underlying knee issue which contributed to the event. However, the Tribunal did not nurse this argument. Instead, the Tribunal held that, “the immediate cause of the injury was the physical movement taken by the worker”, while at the unsafe workplace.
In his decision, Deputy President Judge Crawley said that he was satisfied that Ms Robinson’s employment was an important or influential cause for her injuries. While the worker must still present and succeed with her claim, it certainly presented an important lesson to the University to provide a safe workplace.
Key take-away for employers: even where a worker with an underlying injury is hurt at work (and while completing a menial task), it is imperative to have adequate workplace safety rules.
How to: Breach Your Workplace Health & Safety Obligations
Metro Trains Melbourne Pty Ltd (MTM) was fined $100,000 last month for a 2018 failure to provide workers with accurate diagrams and, consequently, a safe workplace. MTM’s negligence likely came as a shock to one worker, who touched a livewire which was not correctly located on the diagram provided to him.
When updating the Glenwaverley line, MTM workers (relying on dodgy diagrams) did not isolate a 600-volt feeder cable. If, like many, you do not know what a feeder cable is, it is a cable that supplies electricity from one point to another. Inevitably, huge amounts of electricity flow through these cables. No wonder the consequence of touching such a cable was burns and a trip to the hospital.
The Melbourne Magistrates Court heard MTM failed to provide safe systems of work, by failing to provide accurate diagrams and site inspections. An incident that easily could have ended in death and just as easily could have been prevented by MTM.
Key take-away for employers: having clear workplace health and safety expectations is an easy way to ensure your business does not end up before the Court, defending a negligence or workers’ compensation claim. As all cases have shown, having clear workplace health and safety policies, which you ensure your employees understand, is a no-brainer.
Prison Time for Reckless Repairman
On a much more serious note, a Queensland man who ran a motor repair business has become the state’s first individual to be prosecuted, convicted and jailed for industrial manslaughter. Sentenced to a 5-year jail term, suspended after 18 months, Mr Jeffrey Owen (Mr Owen) was responsible for the work-related death of his friend.
In 2019, Mr Owen was using a forklift to lift a generator. Unfortunately, the forklift did not have lifting capacity to hold the heavy generator, which then fell and killed his friend who was assisting with the task. The Queensland District Court found that Mr Owen was operating the forklift negligently for various reasons, including that he did not hold a forklift licence and had no documented workplace health and safety procedures related to utilising a forklift.
Despite Mr Owen’s defence running an argument that the deceased was not performing work, but merely a good friend helping his buddy, the Court held that he was a “worker” for the purpose of the WH&S Act. Relevantly, a “worker” is broad enough to capture any person carrying out work in any capacity for a PCBU.
Key take-away for employers: although the earlier cases were discussed in a tongue-in-cheek manner, Mr Owen’s matter serves as a timely manner to employers that creating a safe workplace is not a game. Employers owe serious responsibilities and obligations under workplace health and safety laws which can make being the boss seriously, risky business.
If you wish to discuss any aspect of this client alert or require specialist advice or assistance in relation to an employment or workplace health and safety matter, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please also note that the law may have changed since the date of this article.