14 Mar 2013
WH&S laws and the injured worker: One breach of duty does not causation make
by Dan Trindade, Lauren Townsend
Unless a worker's injury is caused by a breach of legislation, an employer will not be liable for both the breach of the work health and safety legislation and the worker's injury
A recent Victorian Court of Appeal decision reinforces that an injury sustained by a worker won't always be attributed to a breach of the employer's/person conducting a business or undertaking (PCBU's) statutory obligations in respect of work health and safety.
In Duma v Mader International Pty Ltd  VSCA 23, Mr Duma was a qualified motor mechanic employed by Mader International to conduct maintenance work on ambulances. One day, when working on his back underneath a vehicle using (or about to use) a particular tool which required him to exert a degree of manual force, he sustained an injury to his cervical spine and tore his left supraspinatus tendon. The injury ultimately meant that he was unable to continue to work.
Mr Duma sought damages in respect of his injury in the County Court of Victoria, arguing that his employer failed to comply with its duties under the Occupational Health and Safety (Manual Handling) Regulations 1999 (Vic) to:
identify tasks involving hazardous manual handling (including a task requiring the use of force exerted by a person to move something) before those tasks are undertaken;
undertake a risk assessment in respect of that task; and
ensure any risks are eliminated, or (where it is not practicable to eliminate the risk), to reduce the risk so far as is practicable.
However, despite Mader International's concession that it had not complied with all of its statutory duties, the jury found that there was no negligence or breach of the employer's statutory duty that caused Mr Duma's injury and the Court found in favour of the employer. Mr Duma appealed the decision to the Court of Appeal.
Did the employer's breach cause the employee's injury?
The Court of Appeal acknowledged that in the past, where there had been a breach of a statutory duty by the employer, courts had been willing to readily conclude that injuries sustained by a worker had resulted from the employer's breach (especially where the risk was foreseeable). However, the Court of Appeal held that this was not the case in Mr Duma's circumstances, which were not analogous to a failure to maintain a guard or safety screen in front of a dangerous machine.
Mr Duma's appeal (and claim at first instance) ultimately failed because he could not overcome the hurdle of demonstrating that his employer's breach of the Regulations caused his injury. The Court of Appeal found that it was open to the jury to find, on Mr Duma's evidence, that:
the lack of availability of alternative tools;
Mader International's failure to adopt a different system of work;
Mader International's failure to carry out a risk assessment; and/or
the lack of training given to him,
did not cause his injury. The Court of Appeal also held that there was no evidence that would have compelled the jury to conclude that if a risk assessment had been performed, and alternative tools and work methods proposed by Mr Duma during the trial had been identified, it would have led to any relevant change in the system that would have prevented his injury. This was because those alternatives were impracticable and came with their own unique risks.
Implications for employers and PCBUs
Although the worker in this case was not successful in his damages claim, employers should not be complacent about compliance with their statutory duties. Each piece of work health and safety legislation around the country (whether harmonised or not) establishes consequences for failure to comply with statutory duties.
In most cases the consequences involve monetary fines and in some cases (including an officer's duty to exercise due diligence under the harmonised WH&S legislation), offenders can be imprisoned. The outcome would likely have been different for Mader International if it had instead been prosecuted for breach of the Regulations.
This case highlights, however, that unless a worker's injury is caused by a breach of legislation, an employer/PCBU will not be liable for both the breach of the work health and safety legislation and the worker's injury. In those cases, to be able to successfully claim damages the worker will need to establish that the employer's statutory breach was the cause of his or her injury. This can often be difficult to prove to the required standard, particularly where the worker cannot prove that there were other steps the employer/PCBU could have reasonably and practicably taken which would have mitigated the risk of an injury occurring.
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