Occupiers (Not Employers) Beware - Loose Step Leads to $1 Million in Damages
In a cautionary tale for all employers and occupiers (especially those with stairs!), the recent case of Julie Walker v Top Hut Banoon Pastoral Co Pty Ltd sets a stern reminder that steps need to be taken (pun intended!) to ensure that the workplace is safe and adequately maintained so as to avoid causing injury to others.
The plaintiff was employed by Shear Away Pty Limited, however, Top Hut Banoon Pastoral Co Pty Ltd was the occupier of Banoon station where she was attending as a shearers’ cook.
On 28 July 2015, whilst at Banoon station, the plaintiff put her foot on a step, and as she was bringing her other foot down, she felt it tilt and she was suddenly on the ground screaming out for help. She said that she noticed that the step had broken and one side had come “loose of the wood” and had torn completely off, the other side was “hardly attached but there”.
She sustained injuries to her lower back, right wrist, left ankle and right knee. She also suffered a psychiatric injury and an exacerbation of her type 1 diabetes mellitus. Her injuries were assessed to be a 15% whole person impairment.
The Law Generally
At law, it is well established that an employer has a non-delegable duty to take reasonable care. The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury.
The employer’s duty to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control.
The distinction in this case fell to fact that the employer did not have full control over the premises and therefore, in the opinion of District Court Judge Weinstein SC, there was no breach of duty on the part of the employer and the employer’s duty where there was a defect in the occupier’s equipment or plant was to do no more than cast an eye over the premises to ensure they appeared safe. The occupier alone was liable in negligence for not taking precautions against the risk of harm from the defect that caused the injuries to the plaintiff.
Whilst the final orders on damages are still to be made, the plaintiff will be awarded approximately $1 million dollars for her injuries and Weinstein SC’s decision included a non-economic component of around $240,000, given the significant effect on the employee’s lifestyle and health following the fall.
It was held that she was no longer able to perform her role after the fall, and had to quit her job, which she had intended to keep till her late 60s.
Whilst the employer in this case was held to not be liable for the injuries sustained by the plaintiff, this does not automatically mean that this will be the case for other employers in the future – no one case is the same! Employers still need to ensure they take reasonable care to avoid exposing employees to unnecessary risks of injury, so far as is reasonably practicable.
For occupiers, it is a stern warning that liability for injuries sustained will not automatically rest with the employer and there is the real risk that liability may fall on the occupier alone if the premises is not safe and not safely maintained.
For advice regarding your premises or for advice regarding your Workplace Health and Safety obligations, contact either the Enterprise Legal Workplace team or the Business and Property team today: