Duty Of Care Owed By Employer To Employee Not Working At Its Premises

Judgment date: 24 July 20091

Dib Group Pty Ltd t/as Hill & Co v Cole [2009]

NSWCA 210

In Brief

A defendant seeking to rely on a defence under s 151Z of the

Workers Compensation Act 1987 bears the onus of

establishing liability on the part of the employer.

An employer's duty of care to its employees will operate

differently in circumstances where it has full control over

premises and in circumstances where it does not. However, in all

instances, a court will ask what the employer should have

reasonably done in the circumstances to avoid the risk of

injury.

Background

On 30 June 2005 the plaintiff was delivering fuel to the

defendant's premises at Braidwood Road, Goulburn in Southern

NSW. Whilst returning to his truck the plaintiff stepped on the

cover of an inspection pit and as he did so the cover moved causing

him to fall into the pit.

The metal cover of the pit was designed to rest upon a concrete

rim within the pit. The pit was required to be inspected and

cleaned by employees of the defendant on a weekly basis. For some

time before the accident, the defendant's employees had chipped

away the concrete at the corners of the rim so as to allow the lid

to be more easily lifted by applying downward pressure on one side

of the lid. This had resulted in the lid becoming unstable if

stepped on.

The plaintiff had visited the defendant's depot on numerous

occasions prior to the accident. The plaintiff gave evidence that

he had walked across the area at least 50 times and had not stepped

on the lid prior to the date of the accident.

District Court Decision

The plaintiff commenced proceedings against the defendant as

occupier of the premises where the accident occurred. Goldring DCJ

found that the defendant was liable to the plaintiff in negligence

and the plaintiff was awarded damages in the sum of

$318,719.23.

His Honour made no deduction in respect of the contributory

negligence on the part of the plaintiff, holding that there was

nothing to indicate that it was unsafe for a person to place weight

on the cover of the pit.

In respect of the plaintiff's employer's negligence,

Goldring DCJ held that an employer's duty of care is not

absolute and that a site inspection would not have revealed that

there was a problem with the pit cover. While his Honour found that

there was a duty on the part of the employer, which was breached,

he held there was no causal relationship between the breach and the

injury sustained by the plaintiff.

On Appeal

The...