Australia: Slipping standards: the duty of a reasonably prudent employer

A recent decision of the Supreme Court of Western Australia demonstrates the care needed in determining liability in slip and trip cases.

In Transfield Services (Australia) Pty Ltd v- Wieland[2014] WASCA 41, Wieland worked for Transfield as a senior chef in a kitchen at the naval base at Garden Island, Western Australia. On the day in question, he was returning to the galley after visiting the toilet and slipped on the top step of four steps leading back to the galley. It was subsequently found as a matter of fact that the rubber strip on the top step was beginning to come loose.

Inspections had been carried out weekly beforehand but the defect had gone unnoticed. The evidence of two employees confirmed that it could not be detected by a visual inspection alone. It could only be identified by physically lifting the strip from the step to which it was glued or by standing at the extreme edge of the tread at which point it began to give. It then returned to its "normal" position once the load was removed.

Wieland and others had used the steps on hundreds of occasions beforehand without incident and without noticing the defect. There was no evidence to suggest that the strip or the glue were unsuitable for their purpose or non-compliant with Australian Standards or the relevant Building Code of Australia. It was found that deterioration of the glue would happen gradually.

The trial judge found that deterioration of the glue caused a foreseeable risk of injury and that a system of visual inspection was inadequate to detect the hazard. Specifically, she found that Transfield breached its duty of care to Wieland "by failing to ensure that he was not exposed to risk of injury from the steps in the corridor at his workplace." The judge was satisfied that a system of physical inspection would have revealed the defect.

Transfield argued that the decision was wrong for the following reasons:

  • It was wrong in law to require it to "ensure" that no harm came to its employees. It only had a duty to takereasonable care to avoid the risk of injury;
  • The decision did not properly consider what was a reasonable response to the risk of harm;
  • The evidence did not support the conclusion that a physical inspection would have made a difference, or what form such inspection should take in order to be "reasonable".

The appeal succeeded on all counts. The duty is that of a reasonably prudent employer and does not require the employer to 'safeguard a worker completely from all perils'. Not all hazards can be avoided despite reasonable precaution. There was in fact nothing to put Transfield on notice of the defect.

There was also nothing to suggest that its inspection process was inadequate or fell short of any recognised industry standards (no evidence was led on this issue). In short, it was not possible to conclude that the type of system envisaged by the trial judge would have revealed the defect.

The case is a useful reminder that employers need only devise and implement reasonable systems to avoid or reduce the risk of injury. It is not a "counsel of perfection" and reasonableness will include reference to the circumstances of the industry, its resources and accepted standards.

Article written by David Kew

Kott Gunning

 

 

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