Shearing through issues of credit, design and construction of premises and an employer's liability

Judgment date: 27 September 2011

Hill & Anor v Richards [2011] NSWCA 291

New South Wales Court of Appeal1

In Brief

The absence of prior accidents and complaints is only one factor to be taken into account in determining breach of duty. Even if the design and construction of premises comply with the relevant Australian Standards, an occupier of premises may be found to have breached its duty of care to a plaintiff. When determining an employer's liability, for the purpose of assessing the reduction to be made pursuant to s 151Z(2) of the Workers Compensation Act (the WCA), the Court must weigh the different considerations arising in each specific case. Background

The plaintiff, Mr Mark Richards (Richards), was employed as a wool presser by MF & DA Alchin (the Alchins). The Alchins were engaged by Tony Hill and Diana Hill (the Hills), the appellants in the appeal, to provide a shearing team in a shed owned and occupied by the Hills.

The shearing shed on the Hills' premises had been constructed in 2003. When the shearing shed was built, the design and construction adhered to recommendations contained in a WorkCover Guide in relation to health and safety in the shearing industry. Mr Hill gave evidence that a co-author of the WorkCover publication, who was also either a WorkCover inspector or representative of the Australian Workers Union at the relevant time, had inspected the shed and made positive comments about its design and construction. Since the construction of the shearing shed there had been no complaints that the shearing board or the stairs were slippery.

Part of Richards' duties as a wool presser required him to ensure sheep were in a pen so that the shearers could work efficiently. The shed was designed such that there was a raised board or platform on which the shearing took place. The board was erected over a concrete floor. There were stairs at one end of the board which provided access between the board and the floor of the shearing shed. There was a handrail along one side of those stairs. There was a gate at the top of the shearing board.

Richards alleged that, on 31 October 2005, he was working at the Hills' shearing shed. Mr Hill was present at the shearing shed throughout the course of the morning working as a wool classer. Mr Michael Alchin was also present and had seen Richards walk up and down the stairs a number of times throughout the course of the morning.

Richards had been working for several hours on the morning of 31 October 2005 during which time he had...