At common law, employers owe their employees a non-delegable duty to take reasonable steps to provide a safe system of work and a safe place of work. The scope of the instructions that an employer must provide to its employees in order to discharge that duty is, however, often the subject of dispute.
In the recent case of Gregory Spencer Ward trading as Ward’s Stock Transport v Watson [2021] WASCA 44 (Ward), the Court of Appeal considered the issue of the level of instruction required to be given to experienced employees in order to provide a safe system of work.
The decision of the Court of Appeal is instructive. It is important for employers to appreciate and understand the level of instruction required to be given, even to vastly experienced long term employees.
Facts
On 18 February 2015, Kerry Watson was seriously injured when he was struck by a bull in the course of his employment as a stock handler with Gregory Ward (the accident). Watson sued Ward for common law damages on the basis that Ward was allegedly in breach of his duty of care as his employer.
On the day of the accident, Watson had entered the rear bull pen to encourage a baulking bull to move forward. The bull turned on him and forced him up against part of the loading dock, causing his injuries.
Decision of the District Court
At Trial in the District Court, Ward argued that the risk associated with a baulking bull was so obvious that experienced stock handlers did not need to be instructed as to avoiding the risk. Ward argued that Watson’s own negligence, in deciding to enter the pen, was the cause of his injuries.
O’Neal DCJ found in favour of Watson in the action, and:
- said that Ward’s failure to instruct his employees never to enter a pen with a baulking animal was in breach of his duty of care, and that the breach caused Watson’s injuries; but
- found Watson guilty of contributory negligence and reduced his damages by 20%.
Decision on Appeal
Ward appealed the decision of the District Court for a number of reasons. His grounds of appeal included that O’Neal DCJ erred in law in finding that an employer was required to provide vastly experienced stock handlers with ongoing specific instruction in relation to dealing with livestock.
The Court of Appeal rejected the grounds of appeal challenging the District Court’s findings on liability and causation. Of particular interest, in relation to instructions to be given to experienced employees, the Court held:
[147] …while the experience of an employer’s employees generally will be relevant to the formulation of a system of work, ultimately, a safe system of work is one that is safe for an ‘average’ worker within the employer’s enterprise. It is not a system which is safe only for those of superior skill whose attention never wanders.
[166] … an employer, even with a highly skilled workforce, ought have in contemplation the means by which his employees are to safely load unpredictable ‘half wild, ill-tempered 450 kg animals’.
In that context, the mild embarrassment that an employer may feel at, sometimes, having to tell their employees how to ‘suck eggs’ is a burden that on occasion the employer must bear in the discharge of his or her duty of care.
The Court of Appeal did, however, uphold the appeal in relation to Watson’s contributory negligence. The Court found that the reduction for contributory negligence made by the District Court was manifestly inadequate and as a result, the judgment was substituted so as to reflect an apportionment of liability of 60% to the Ward (as the employer) and 40% to Watson (for his own contributory negligence).
Implications
The level of instruction required of an employer in order to discharge its duty to provide a safe system of work is a significant issue in relation to common law workers’ compensation claims.
The Ward case confirms that the duty on an employer is a significant one, and that the experience of a workforce will not excuse the obligation to provide ongoing instructions that may seem unnecessary or awkward to give to skilled employees (who must all, according to the Court of Appeal, be treated as if they are ‘average’ workers within the employer’s enterprise).
This article was written by Matthew Thickett, Partner and Katie Brakespeare, Solicitor.
