Failure to warn of obvious risk: $725k payout

The NSW Supreme Court has awarded $725,000 in damages to a carpenter injured in a fall after his employer failed to instruct him about a safety hazard that it assumed was obvious to all workers.

The carpenter fractured his spine in a five-metre fall from a scaffolding rail.The incident occurred at the first time the worker had worked in the area of the building in question. The worker noted that his work had to be done at some pace and he was not told or taught to check every scaffold connection.

When he stood on a scaffolding rail to retrieve a tape measure that had dropped, the rail moved, causing him to lose his balance and fall.

Failure to take proper care

The court concluded that the employer was in breach of the duty that it owed the worker by failing to instruct him not to stand or climb upon scaffold rails. The worker had no need for a safety harness if he had been given that instruction and he had complied with it.

The court commented that the dangers that the workplace presented should have prompted either a complete prohibition upon working from an unsafe platform or the rectification of the defects before work commenced.

Contributory negligence

The court did not consider the worker’s lack of care for his own safety could be characterised as mere inadvertence. However, venturing beyond the safe confines of the scaffolding platform represented a departure from his obligation to take such care of himself.

The requirement for attention to his own safety in such circumstances must have been apparent.

The court assessed the worker’s negligent contribution to his injuries at 15 per cent.

The bottom line: An employer should not assume that obvious danger is obvious to everyone. Risks should be addressed with due diligence and relevant warnings provided.

S v Emicon Pty Ltd [2014] NSWSC 1072 (12 August 2014)

This article was originally posted on Workplace OHS and has been published with permission.

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