Category Archives: Work injuries

Negligence – Duty of care – Safe system of work – Work injuries

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

Lawyers

Sydney, Australia

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Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 | 13 May 1986

ON 13 MAY 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

Lawyers

Sydney, Australia

1300 00 2088

Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club [2001] NSWSC 336 | 23 April 2001

ON THIS DAY in 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962″

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61 | 16 October 1984

ON 16 OCTOBER 1984, the High Court of Australia delivered Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61; (1984) 154 CLR 672 (16 October 1984).

The High Court ruled that a special duty of care by an employer to an employee to provide a safe system of work is non-delegable.

The Victorian State Transit Authority engaged an independent contractor to dismantle a crane in a railway yard. Kondis injured his back when a metal pin fell from the crane. Kondis sued the State Transit Authority. The High Court held that the State Transit Authority, as employer, was liable for the harm caused by the independent contractor because their failure to adopt a safe system of work was a breach of the employer’s non-delegable duty of care.

Lawyers

Sydney, Australia

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Legal Issues Bulletins – NSW Department of Education & Communities

The NSW Department of Education & Communities from time to time publishes Legal Issues Bulletins.

As at 12 October 2014, there are 54 Legal Issues Bulletins. The bulletins, which are prepared as general information for officers of the department, cover issues such as criminal offences, confidentiality, power to search students, discipline, child protection, police interviews, accidents, personal injury, occupational health and safety, insurance and subpoenas. The bulletins may be accessed by visiting http://www.dec.nsw.gov.au/about-us/information-access/legal-issues-bulletins.

Lawyers

Sydney, Australia

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Cunningham and Commonwealth Bank of Australia [2014] AATA 607

Cunningham and Commonwealth Bank of Australia [2014] AATA 607 (28 August 2014).

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Hollis v Vabu Pty Ltd [2001] HCA 44 | 9 August 2001

ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html

The plaintiff was a pedestrian who was injured when a bike courier collided with him on a footpath.  The defendant was the courier company who engaged the cyclist. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.

The High Court allowed an appeal by the cyclist,  holding that the cyclist was not an independent contractor because:

  • no discretion to accept or reject work.
  • stringent roster system.
  • clear rules on taking annual leave.
  • little or no scope for freelancing.
  • no special skills.
  • cyclists were identified with the company with uniforms and a dress code.
  • pay and conditions were consistent with an employment relationship.
  • no scope for bargaining of rates.
  • the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
  • the exercise of control by the company over the courier’s activities.

The relevant considerations for determining whether or not a person is an independent contractor include: