Employer’s failure to identify hazards leads to damages for worker

Employer’s failure to identify hazards leads to damages for worker

Under Victorian law, employers have a duty to provide and maintain a healthy and safe work environment for their employees by ensuring compliance with their Occupational Health and Safety (OHS) obligations. The law also requires employers to eliminate or minimise risk where reasonably practicable to do so.

Case Study

In the recent case of Sampson v Thiess Pty Ltd & Anor [2020] VCC 1568, a worker was awarded damages after he was injured on a non-compliant scaffold step. 

In March 2012, the worker was carrying buckets of rubble down scaffold stairs when he felt pain in his left knee as he reached the landing. The worker suffered a severe twisting injury resulting in a high-grade anterior cruciate ligament (ACL) tear in his left knee. This required him to undergo three surgeries including an ACL reconstruction.

The worker was found to have suffered a ‘serious injury’ and issued proceedings against the employers involved for breaching their OHS obligations.

Victorian County Court Judge Andrea Tsalamandris was particularly concerned about the excessive height of the step. The last step which the worker took, was found to have a 325mm rise which exceeded the maximum recommended standard height for scaffold stairs. The risk of this height causing injury was supported in Court by an expert witness, who said that the variations in step dimensions could interrupt a workers’ gait cycle timing and result in a misstep. An additional 100 millimetres, for instance, could require further acceleration and force in taking the step. He was subsequently of the opinion that the risk of injury could have been prevented by either:

  • ensuring the temporary stairway was suitably designed to meet the regulations/standards
  • raising the landing area to reduce the height of the bottom step; or
  • reinstalling the temporary stairway by ensuring all step dimensions were consistent.

In this case, the incident report following the injury noted that the employer would take corrective action by installing an additional platform to reduce the rise of the step to less than 225mm, and this in fact did occur. Taking into account the recommendations of the expert and the post-injury corrective action, Judge Tsalamandaris therefore found that the employer could have avoided the injury by taking such measures to eliminate or reduce the risk in the first instance. 

Consequently, the employer was found to be negligent by breaching their duty under the state OHS Regulations by failing to have a system in place to identify hazards associated with the use of scaffold stairs. The worker was awarded $120,000 in damages. This amount took into account pre-existing injuries the worker had suffered, as well as the extent of restrictions he now suffered.

If you would like advice regarding an injury caused at work as a result of the employer’s failure to identify hazards, please call (03) 9321 9988 and speak directly to a lawyer.

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