Contributory negligence

Ray Schaffer* reveals how smart employers are reducing their Workers Compensation premiums.

Ray Schaffer* reveals how smart employers are reducing their Workers Compensation premiums.

NEGLIGENCE is the much feared N—word for any employer. It means, in effect, that the employer has failed in the mandatory Duty of Care vis—a—vis his employees.

At the time of a serious incident when an employee has been injured perhaps, critically, tough questions will be asked regarding the manner in which the employer’s negligence has contributed to the employee’s injury.

In what way has the employer’s OHS safety management system failed to meet the OHS Act’s section 8 statutory obligations?

These tough questions should be asked by the employer, since this party will now be faced with the prohibitive and on-going costs of the injured operator’s Workers Compensation claim. What these questions will be aimed at uncovering is the employers ‘negligence’.

While this form of negligence is more or less understood by most employers, another form is far less well known or understood, namely, contributory negligence. Yet, it has a potentially very important role to play – a role that can save the employer – big dollars.

A few examples will quickly clarify the meaning of contributory negligence. Identifying contributory negligence means the need to identify the facts surrounding an incident, for example a motorbike rider being injured in an accident and not wearing a safety helmet.

Or a passenger being injured while driving a car and failing to fasten a seat belt. Or driving when you know you have had a few too many. So, in effect, the injured person has ‘contributed’ through their own negligence to the seriousness of the injuries sustained.

What is frequently overlooked in the making of a Workers Compensation claim by an employer for an injured worker is the aspect of this contributory negligence.

The way to go about gathering and presenting this evidence to the Workers Compensation Insurer (now known as Agents) will be dealt with further below.

This form of contributory negligence is also to be found in many shop floor situations. Let us examine a few. The growing trend in manufacturing is toward automation. The latter, has many positive benefits. For example, reduced numbers of employees (and their associated costs) 24 hour shifts; and often reduced injuries and reduced worker compensation claims, to name but a few.

Nevertheless, there is a serious potential risk exposure in this scenario. In fact, there are several. These risk factors are chiefly to be found in the OH&S Act 2000 as amended section 11.

All in the design

The manufacturers of plant equipment for example – makers of automated machines that perform tirelessly the work of several workers – have set down for them in this section, the mandatory duties that must be conformed with.

What this may mean, is that an employer who installs automated machinery which contributes to the injury of a worker may have grounds to point a finger at the manufacturer of the plant equipment, and produce in evidence, the facts relating to the manufacturer’s role.

This may be something as simple as the factual knowledge the manufacturer acquires through production and supply of the plant equipment — where the person learns say, of a design fault in the machine about which he/she does not take the precaution of notifying to all of the users to whom he/she has supplied the plant equipment.

The many duties of such a manufacturer are fully set down in section 11 (2) of the Act. The sting in the tail is to be found in section 11 (3).

The Act extends the meaning of ‘manufacture’ of plant equipment to include assembly, installation or erection. For the employer, the plant equipment manufacturer may be a contributor to the negligence that caused harm to the factory owner’s employee.

Just how the factory owner may go about gathering and preparing factual evidence for presentation that will support a contributory negligence claim- is set out further below.

The next potential for contributory negligence scenario to be examined is that of a ‘third party’ contributing to the negligence.

An example of contributory negligence may occur where an employee’s work requires that he/she drive a company motor vehicle.

In the event of a motor accident, it would be prudent for the employer to examine and investigate the incident from a number of different viewpoints, including – what possible contributory negligence originated from the driver of the company vehicle, as well as perhaps from a ‘third party’ — also, whether there was a pedestrian or driver of another vehicle or a person who assisted or who hindered the company vehicle driver in a ‘third party’ capacity. Distractions- caused by mobile phone use are a common factor here.

The third example we may examine, occurs where there is bullying taking place in the workplace. This is unknown in some industries and endemic in others.

A duty to care

The media have recently highlighted the opening of a Parliamentary enquiry into the culture of bullying in the NSW Ambulance Service. So bad has this apparently been over the past two years, that five officers have committed suicide.

The enquiries’ chairperson has received according to the report, over one hundred submissions regarding bullying by officers.

It appears the officers’ requests for help ‘fell on deaf ears’.

Most employers are unaware that their Duty of Care obligation extends to ensuring that no employee suffers harm as a result of for example, being bullied at the workplace.

Bullying is rapidly becoming a major cause of Workers Compensation stress claims by employees. What employers are grossly unaware of is that contributory negligence may play a significant role in such claims. This may occur where co-workers are involved in bullying tactics against a fellow worker.

The first in a line of cases came before the courts, back around early 2000 in Victoria, where Workers Compensation operates somewhat differently to NSW.

In a landmark case, Worksafe sued in the Melbourne Magistrates’ Court a trio of men accused of physically and sexually assaulting a co-worker who later developed Post- Traumatic Stress Disorder (PTSD).

Under the Accident Compensation Act 1985, Section 138, Worksafe can take legal action against a negligent third party who has contributed to a workplace stress injury.

The message for employers being, that if another party is responsible for the worker’s injury — that is, other than the workers employer, you should, in Victoria advise your Worksafe Agent or in NSW, your Workers Compensation Insurer or WorkCover NSW.

Safe Solutions

In the scenario of the injured worker harmed by plant equipment with an unidentified design flaw, the manufacturer of the equipment should be interviewed, if possible, as to what records of notification to purchasers of the plant equipment were made and regarding warnings of the equipment’s safe operation.

If the manufacturer of the plant equipment will not co-operate, then the suspected fact of a design flaw should be brought to the attention of the Insurer/Agent and by the employer of the injured worker.

In the second scenario above where a motor vehicle accident occurs involving a company car, all of the witnesses should be interviewed and if possible, a record made of what they know. But, more than this, the investigation should look at the possibility of a ‘third party’ having been involved. It can be quite amazing what can be unearthed with diligent interviewing.

In the final scenario above, dealing with bullying, any party who has knowledge of the facts should be interviewed. Ideally, what you are looking for is a ‘direct’ witness.

That is, a person who was present and can provide a statement regarding the details of the incident, step by step, factually, from immediately before the incident to a careful record of the outcome as well as if possible, the harm caused to the person plus if possible, information regarding any potential contribution of negligence by a third party.

This information is recorded in either a Sworn Statement or a Record of Interview. And this written information is submitted to WorkCover or relevant safety authority or the Insurer/Agent.

Negligence means ‘trouble’ whether for an employer, employee, contractor or third party. The employer should not be the sole party to bear the cost.

But, without taking the steps, set down above, in general terms, the employer may well find that in ignorance of the aspect of contributory negligence, the whole of the cost of the Workers Compensation claim is for the account of the employer.

It is inequitable that the employer should bear the brunt of the costs single-handed especially, where there is evidence that a contributing factor to the incident and the resulting harm to the worker was the negligence of a person other than the employer.

*Ray Schaffer is the Principal Consultant with- R. M. H. Schaffer &Co – Health, Safety and Environment Consultants. For more information phone: 02 9878-0613, email: or visit the website at: Pose a question and receive an answer at no cost.

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