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careless employees

careless employees. Obligation to provide a safe workplace. Reasonably Practicable Objective Not dependant on causation.

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careless employees

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  1. careless employees

  2. Obligation to provide a safe workplace • Reasonably Practicable • Objective • Not dependant on causation

  3. However, the duty to provide a risk-free work environment is a duty owed not only to the careless and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable NSW v TRW [2001] NSWIRComm 52

  4. The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment… One must then weigh the chances of spontaneous stupidity, or a fall, or the like, against the practicability of guarding the machine so as to maintain its function while preventing the human factor from resulting in injury. If the danger is slight and the installation of a guard would be impossibly expensive, or render the machine unduly difficult to operate, then it may be that the installation of the guard is properly to be regarded as impracticable. Each case must be decided on its own facts. Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119

  5. Foreseeability is important • Carelessness is not a defence for a foreseeable hazard • Objective assessment about what steps are necessary to manage a risk

  6. Unforeseeable conduct The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304

  7. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267

  8. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable. The unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR

  9. In some cases, it will not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. There are limits to the degree of instruction which can be expected to be provided to an experienced employee Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267

  10. It was not reasonably practicable to prohibit the workers from attempting to support multiple glass sheets by hand, because it was not a practice adopted in the factory, it was contrary to the instructions given to the workers by the defendant and thereby it was not reasonably foreseeable. The precise mechanism of the incident occurred by reason of the deceased acting irrationally and by both the deceased and Mr Pham acting against instructions and with a significant disregard for safety. That set of circumstances was also not reasonably foreseeable. Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58

  11. It is a version of the infinite regression of supervision argument, which if accepted would mean that every well trained tradesmen should be supervised or observed by a superior trained tradesmen, and he seemingly in turn should be supervised himself by someone even higher. Inspector Davies v Prospect Electricity (Unreported, Fisher P, CT747, 9 Nov 1992)

  12. It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture? Seage v State of New South Wales [2008] NSWCA 328

  13. When I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so. Electric Power Transmission Pty Limited v Cuiuli[1961] HCA 3

  14. Thoughts • Reasonably practicable steps to protect people from hazards • Obligations extend to careless employees • Conduct that is foreseeable • Recognising that people make mistakes • Recognising that people will not always comply with directions (hence the hierarchy of controls)

  15. Thoughts • Are not expected to guard against the unforeseeable, including unforeseeable conduct be employees • Do not have to warn against the obvious

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