Ray Schaffer, Principal Consultant of RMH Schaffer & Co provides information on employers’ contributory negligence.
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 towards 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.
Questions must be raised on the way the employers’ 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 operators’ workers compensation claim. These questions will be aimed at uncovering the employers negligence.
While this form of negligence is more or less understood by most employers, another form that is far less well known or understood is contributory negligence. A few examples will clarify the meaning of contributory negligence.
Identifying contributory negligence refers to identifying the facts surrounding a motor-bike rider being injured in an accident, and not wearing a safety helmet or a passenger being injured while driving a motor-car and failing to fasten a seat belt, or driving when under the effect of alcohol.
The injured person has contributed through their own negligence to the seriousness of the injuries sustained. The aspect of this contributory negligence is frequently over-looked in the making of a Workers Compensation claim by an employer for an injured worker. This form of contributory negligence is also to be found in many shop-floor situations.
The growing trend in manufacturing is toward automation. The latter, has many positive benefits. For example, reduced numbers of employees (and their associated costs) twenty four hours shifts; and often reduced injuries and reduced worker compensation claims, to name a few.
There are several serious potential risk factors in this scenario. These risk factors are chiefly found in the OH & S Act 2000 as amended section 11. The 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.
This also implies 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. The amended section 11 also produces in evidence, the facts relating to the manufacturers role.
This may be something as simple as the factual knowledge the manufacturer acquires through production and supply of the plant, where he learns say, of a design fault in the machine about which he does not take the precaution of notifying, to all of the users to whom he has supplied the plant.
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 to include assemble, install or erection.
For the employer the plant manufacturer may be a contributor to the negligence that caused harm to the factory owners’ 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 the fact whether the 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 occurs where there is bullying taking place in the workplace. This is unknown in some industries and endemic in others.
The media has 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.
According to the report, the enquiries chairperson has received over one hundred submissions regarding bullying by officers. It appears the officer’s 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 being bullied at work. Bullying is rapidly becoming a major cause of the making of workers compensation stress claims by employees.
Employers are grossly unaware 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 some what differently to NSW. In a land- mark case, Workcover sued in the Melbourne magistrates court a trio of men accused of physically and sexually assaulting a co-worker who developed a post- traumatic stress disorder.
Under the Accident Compensation Act 1985, Section 138, Workcover 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, the Workcover Agent or Workers Compensation Insurer must be informed.
In the scenario of the injured worker harmed by plant with an unidentified design flaw, the manufacturer of the plant should be interviewed regarding the records of notification on warnings for safe operation supplied to purchasers of the plant. If the manufacturer of the plant does not co-operate, then the suspected fact of a design flaw should be brought to the attention of the Insurer, 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.
In the final scenario above, dealing with bullying, any party who has knowledge of the facts should be interviewed. A direct witness must be interviewed.
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 the Workcover Agent or the Insurer.
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 inevitable 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.