In a recent finding of Coroners Court of Qld, the Coroner was critical of BHP Billiton Mitsubishi Alliance (BMA)’s attempt to reduce costs by modifying its plant and equipment. The modification of the machinery was done to reduce downtime and costs associated with maintenance. The modifications were outsourced as the employers responsibility to another company, but the coroner remained critical of the employer’s action.
The Case
In August 2017, a highly regarded boilermaker was using an air carbon arc gouger to remove welds from the wear plate on the excavator bucket. The plate suddenly sprang forward striking him on the head and knocking him unconscious, resulting in his death. The Coroner stressed that BMA’s lack of knowledge of the inherent risk of this “unprecedented and highly unusual” event, does not reduce any obligation to keep their workers safe. When employers are planning to arrange modifications to save money, it is crucial to take extra care and perform thorough risk assessments so that no workers are harmed ‘through no fault of his/ or her own’.
While the coroner’s findings and recommendations cannot be used as evidence in any other court or tribunal (such as a workers compensation claim), the sentiment expressed by the coroner is reflective of the Queensland law in injury claims. Employers have a non-delegable duty to ensure a safe workplace. This is a fundamental principle enshrined in our common law as well as legislation.
Section 19 of Queensland’s Work Health & Safety Act 2011 requires that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers (either their own work or other workers whose activities may be influenced or directed by the person). The person conducting the business must also ensure, as far as is reasonably practical, that non-workers at not put at risk from the work being undertaken. This includes visitors or customers.
What this means for Employers Responsibility
In a nutshell, what this all means is that employers responsibility cannot simply be brushed over when it comes to the health and safety. They cannot outsource all responsibility for safety to a third person or company. To do so could expose the employer to either prosecution under the workplace safety regime or a personal injury claim for damages or a third party public liability claim (much less damage to the business or its reputation).
Of course, this does mean that the employer needs to do everything themselves, particularly when they don’t have relevant expertise in the safety issue. The use of other advisers or professionals or experts may well be necessary to manage or minimise risks of unsafe events. However, the employer must take steps that are necessary or practical to try to maintain safe work practices and environments. Safety should not be compromised merely for the sake of saving money.
No one wants to go to work and be injured, and no employer ought to want to deal with the consequences of having injured a worker. The emotional toll, the potential harm to the reputation of the business, the insurance premium rises, and any down time from the injury event can devastate both the worker and the business. Therefore, employers ought to keep a keen eye on supporting their workers and their business by also keeping a keen eye on safety.
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Posted in: Personal Injury
April 19 2021
