2.1.2 Industrial Accidents[1]

Introduction and overview
  1. I turn to the first question: Was any negligence of the defendant a cause of injury to the plaintiff?
  2. In a case such as this, which concerns a claim by an employee against [his/her] then-employer, negligence means a failure by the defendant to take reasonable care for the safety of its employee.
  3. In law, an employer is under a duty to take reasonable care for the safety of its employee. A breach of that duty is negligence. Where a plaintiff employee proves breach of duty, the injured employee is entitled to recover damages for injuries, loss and damage of which the employer’s negligence was a cause.
  4. An employer’s duty is to take reasonable care for the safety of its employees. That does not mean that the employer is under a duty to safeguard its employee from all dangers that might conceivably arise. What is required is that reasonable care be taken in all the circumstances.
  5. To determine whether an employer has been guilty of negligence, the test is, as the law calls it, an objective one. The duty owed is the duty of a reasonably prudent employer in the circumstances. It is a duty to take reasonable care to avoid exposing its employee to unnecessary risk of injury – that is, risks of injury which are reasonably foreseeable. You decide whether the defendant acted reasonably by deciding what you would expect of a reasonably prudent employer in the particular circumstances. You do so without the benefit of hindsight. The mere fact that the plaintiff was injured does not answer the question whether the accident was reasonably foreseeable by a reasonable employer in all the circumstances. But it would be just as wrong to conclude that the defendant did not breach its duty because it did not, in fact, foresee risk of injury.
  6. Negligence may consist of doing something which a reasonable employer would not have done in all the circumstances. It may consist of not doing something which a reasonable employer would have done in all the circumstances. It may consist of both acts and omissions. Here, according to the plaintiff’s case, [his/her] employer was negligent in [insert the acts and/or omissions relied upon].
  7. Before going further, could I highlight something about which I have directed you earlier: It is for the plaintiff to prove, on balance of probabilities, that the defendant was negligent, and that such negligence was a cause of his accident and injuries. It is not for the defendant to disprove negligence.
  8. The general principle that an employer must take reasonable care for the safety of its employees has a number of aspects. Underlying them is the fact that it is the employer, not the employee, which has control over the workplace, the system of work adopted, the plant and equipment supplied, and the instruction, training and supervision of employees.
Particular aspects of the general principle
  1. In this case, the plaintiff particularly relies upon [this aspect/these aspects] of the general principle:

If the plaintiff alleges a failure to provide a safe place of work, add the following shaded section:

10.  An employer must take reasonable care to provide a safe place of work for its employees. Here, the plaintiff alleges – and the defendant denies – that the defendant breached this aspect of its duty of care.
11.  [Set out particulars of allegation and denial].

If the plaintiff alleges a failure to maintain a safe system of work, add the following shaded section:

12.  An employer must take reasonable care to institute and maintain a safe system of work for its employees. Here, the plaintiff alleges – and the defendant denies – that the defendant breached this aspect of its duty of care.
13.  [Set out particulars of allegation and denial, making it clear whether the plaintiff complains that a safe system was never implemented; or, having been implemented, was not maintained].

If the plaintiff alleges a failure to provide safe plant and equipment, add the following shaded section:

14.  An employer must take reasonable care to provide its employees with safe plant and equipment with which to work. Here, the plaintiff alleges, and the defendant denies, that the defendant breached this aspect of its duty of care.
15.  [Set out particulars of allegation and denial].

If the plaintiff alleges a failure to adequately instruct and train, supervise, and give appropriate warnings, add the following shaded section:

16.  An employer must take reasonable care to adequately instruct and train its employees in their work, to supervise their work, and to give appropriate warnings. Here, the plaintiff alleges that the defendant gave [him/her]:
(a)  [inadequate instructions and training and/or
(b)  inadequately supervised [him/her] in [his/her] work and/or
(c)  failed to give [him/her] appropriate warnings].
17.  The defendant denies any such failure.
18.  [Set out particulars of alleged breach and denial].

If the plaintiff alleges a failure to ensure an employee other than the plaintiff was reasonably skilled, instructed, and supervised, add the following shaded section:

19.  An employer must take reasonable care to ensure that an employee’s fellow workers are reasonably skilled, adequately instructed and trained, and adequately supervised in their work. Here, the plaintiff alleges – and the defendant denies – that [his/her] fellow worker [X] was not:
(a)  [reasonably skilled and/or
(b)  adequately instructed and trained and/or
(c)  adequately supervised]
20.  [Set out particulars of allegation and denial].
  1. In deciding whether the defendant acted reasonably, it is relevant that in the modern employment world there is an affirmative obligation upon an employer to consider the issue of accident prevention.
Momentary inattention

If the plaintiff's momentary inattention, distraction, or negligence is in issue, add the following shaded section:

22.  An employer must take into account the possibility that an employee may be momentarily inattentive, or distracted, or even negligent when performing his work, and suffer injury in consequence. That is a matter you should bear in mind when considering what steps the defendant should have taken, as a reasonably prudent employer, for the safety of the plaintiff.[2]
The response of a reasonable employer
  1. The plaintiff alleges that the defendant failed to provide [him/her] with [a safe place of work/a safe system of work/safe plant and equipment]. [He/She] called evidence as to what a reasonable employer should have done about [that matter/those matters]. In deciding what a reasonable employer should have done in response to foreseeable risk of injury, and thus whether the defendant breached its duty of care to the plaintiff, there needs to be balanced out, particularly:

(a)  the magnitude of the risk;

(b)  the degree of probability of its occurrence; and

(c)  the extent to which any expense, and difficulty and inconvenience in taking it,

balances out against the taking of alleviating action.

  1. A small risk of serious injury is one thing. A big risk of less serious injury is another. Each may require action. It is for you to decide what response, if any, to foreseeable risk of injury was required of a reasonable employer in the defendant’s position.
Post-accident changes to the workplace

If the plaintiff calls evidence about post-accident changes to the workplace, add the following shaded section:

25.  The plaintiff called evidence that, subsequent to being injured, the defendant [altered the workplace/changed its system of work/changed its plant and equipment].
26.  [Set out changes made, and when].
27.  The plaintiff says that the alteration/change was such as would have prevented [him/her] being injured. The fact that the defendant made that alteration/change – assuming you find that it did – does not prove that it breached its duty of care to the plaintiff by having the place of work/system of work/plant and equipment as it was when the plaintiff was injured. But it is evidence from which you could infer that it was reasonably practicable for the defendant to have made that alteration/change before the plaintiff was injured, and that the cost of doing so was not excessive.[3]
Incorporated defendants

If the defendant is a company and the plaintiff alleges negligence via the actions of one or more of the company's managers or supervisors, add the following shaded section:

28.  The defendant was a company. A company acts by its managers and supervisors. Here, according to the evidence, the company acted particularly through [X]. [One aspect of] the plaintiff’s case requires you to decide whether, acting through its managers and supervisors, here [X], the defendant’s conduct, by [acts/omissions], fell short of the reasonable care demanded in the circumstances. That is what the plaintiff alleges. The defendant denies any such breach.
29.  In law, an employer which is a company bears responsibility for the negligent acts of its managers and supervisors. If you found that [X] – whether it be by act or omission - did not act as a reasonably prudent [manager/supervisor] should have done in the circumstances, and that such lack of reasonable care was a cause of injury to the plaintiff, then negligence would be established against the defendant.
30.  [Set out particulars of alleged breach and denial].[4]
Negligent conduct of co-workers

If the plaintiff alleges negligence of one or more co-worker, add the following shaded section:

31.  An employer is responsible for the acts and omissions of an employee’s fellow workers. Their negligence – that is, failure to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury – is in law treated as the employer’s negligence. [One aspect of] the plaintiff’s case requires you to consider whether a cause of [his/her] injury was the negligent conduct of [his/her] fellow worker [Y]. That is what the plaintiff alleges.
32.  The defendant denies any such breach. If you were satisfied that [Y] – whether by act and/or omission - did not act as a reasonably prudent fellow employee should have done in the circumstances, and that such lack of reasonable care was a cause of injury to the plaintiff, then negligence would be established against the defendant.
33.  [Set out particulars of alleged breach and denial].
Failure of a contractor to implement or maintain a safe system of work

If the plaintiff alleges negligence of a contractor, add the following shaded section:

34.  The plaintiff alleges [he/she] was injured because [he/she] was exposed to an unsafe system of work. The defendant denies the allegation. The evidence called by the plaintiff was to the effect that the system was [implemented/maintained] by [C], a contractor engaged by the defendant. In law, an employer is liable for the failure of a contractor engaged by it to [implement/maintain] a safe system of work for use by the employer’s workers. If you were satisfied that [C] – whether by act or omission – did not take reasonable care to [implement/maintain] a safe system of work, and that such lack of reasonable care was a cause of injury to the plaintiff, then negligence would be established against the defendant.
35.  [Set out particulars of allegation and denial, encompassing particulars of the contractor’s role][5]
Breach of statutory duty as a particular of negligence

If the plaintiff alleges a breach of a statutory duty as constituting a particular of negligence, add the following shaded section:

36.  In this case, the plaintiff alleges, as a particular of the defendant’s negligence, that the defendant breached a statutory duty which it owed [him/her]. The particular provision upon which [he/she] relies is [set out the relevant provision; if the provision is a regulation, a copy will have been put in evidence, and the jury will be provided with it].
37.  I direct you that the defendant did owe the plaintiff a duty under that provision.
38.  It is for you to decide whether the plaintiff has proved that the defendant breached that duty.
39.  [Set out competing arguments].
40.  The fact of breach, if you find that the defendant breached its statutory duty, does not of itself prove that the defendant was negligent. But the plaintiff may rely upon such breach as evidence of the defendant’s negligence.[6]
Breach of statutory duty as a cause of action

If the plaintiff alleges a breach of a statutory duty as a cause of action, add the following shaded section:

41.  In this case, the plaintiff alleges not only that the defendant’s negligence was a cause of [his/her] injury, but also that the defendant breached a statutory duty which it owed [him/her], and that such breach was a cause of [his/her] injury. This allegation – that is, of breach of statutory duty – raises a distinct basis of claim against the defendant. It is the subject of Question [#].
42.  If the plaintiff establishes that the defendant owed [him/her] a duty imposed by the [Act of Parliament/Regulation] upon which [he/she] relies, that it breached that duty, and that the breach was a cause of his injury, then you would answer ‘yes’ to Question [#]. You would then go on to consider damages. You would do so regardless of the answer you had given to the question whether any negligence of the defendant was a cause of injury to the plaintiff.
43.  The provision upon which the plaintiff relies is this: [set out the relevant provision; provide a copy to the jury if the provision is a Regulation a copy of which has been put in evidence].
44.  I direct you that the defendant did owe the plaintiff a duty under that provision. The nature of the duty is set out in the provision itself.
45.  I further direct you that if the plaintiff establishes that the defendant breached that duty, and that such breach was a cause of [him/her] suffering injury, then [he/she] is entitled to damages for [his/her] injury, loss and damage.
46.  It is for you to decide whether the defendant breached that duty, and whether any such breach was a cause of his injury. These are matters which the plaintiff must prove on the balance of probabilities, an onus which I have already explained to you.
47.  Breach will be proved if it is established that the defendant’s conduct was contrary to the requirement or prohibition of the provision. It is beside the point whether the conduct was intentional, negligent or even accidental.[7] [8]
Occupational Health & Safety (Manual Handling) Regulations 1999
Judicial Note: The Occupational Health & Safety (Manual Handling) Regulations 1999 apply until their repeal on 1 July 2007.
Judicial Note: Judges should consider whether these directions need to be amended following Deal v Father Pius Kodakkathanath [2016] HCA 31. See the directions under Occupational Health & Safety Regulations 2007 (below) for guidance.

If the plaintiff relies on the Occupational Health & Safety (Manual Handling) Regulations 1999 to found a cause of action, include a direction based on the following shaded section. The following direction focuses on Regulations 13-15 where a plaintiff nurse handles a live patient: