In brief 3 min read
The Western Australian Court of Appeal has confirmed that employers cannot rely only on the experience of their workers to discharge their safety duties, and instead must be proactive in providing training and instruction about safe work methods.1
- The decision is a reminder that every employer has a duty of care to its employees that cannot be delegated to its workforce, and extends to giving employees instructions if reasonably required to safeguard them from danger or injury.
- Employers cannot rely on the experience of their workers as a substitute for training and instruction, even in circumstances where to provide instruction or direction might appear presumptuous or embarrassing to experienced employees.
- Employers should ensure that all workers are properly inducted, trained and provided with clear instructions in relation to safety procedures and potential hazards, regardless of how obvious the risk may be.
Kerry Watson was employed by Gary Ward to drive road trains, primarily transporting livestock, for Ward's Stock Transport. In 2015, Mr Watson was seriously injured in the course of his employment, when he was struck by a bull when the animal baulked before entering a pen in a trailer. Mr Watson brought negligence proceedings against Mr Ward, arguing that he had breached his duty of care as an employer.
Mr Watson was not provided with any formal induction, instruction or training when he commenced his employment with Ward, or any instruction not to enter a trailer with a baulking animal. Mr Ward relied instead on Mr Watson's experience in the industry.
This decision was an appeal by Mr Ward of a decision of the District Court of Western Australia. He challenged the court's finding that he was in breach of his safety duties, arguing that it had erred in articulating the risk of harm by reference to what steps could have been taken to avoid the incident, rather than whether the risk was reasonably foreseeable. Mr Ward also appealed the contributory negligence component of the damages awarded, which were over $1 million. He argued that Mr Watson's level of contributory negligence of 20% was inadequate, given the obviousness of the risk and Mr Watson's experience.
The Western Australian Court of Appeal upheld the District Court's original decision, but increased Mr Watson's contributory negligence component from 20% to 40% because his conduct went beyond carelessness and fell below the standard of a driver acting reasonably for his safety.
The key issue to be decided on appeal was whether reasonable care required an employer in Mr Ward's position to instruct its employees never to enter a trailer with an animal that has baulked upon entry.
Despite the risk being obvious to workers, the court found that the employer's responsibility to take reasonable steps to provide a safe system of work was unaffected. It found that Mr Ward had failed to discharge his duty not only to devise a safe system for managing a baulking animal, but to maintain, enforce and instruct his employees in that system. This was instead left up to his employees.
There are real dangers in relying solely on the experience of employees without taking into account varying levels of ability or carelessness on their part. Against the 'minor inconvenience' of having to tell an experienced employee how to perform a task they might already be familiar with, the court said there is little cost in issuing the instruction.