…OPT – single event – process worker
The plaintiff was a factory worker whose job involved using a bladed knife to removed packaging from pallets.
To do this work, he was provided a knife by the employer. It was the evidence that the blades provided would blunt in a matter of weeks, or quicker. The solution was to rotate the blades every so often to a fresh side, and after three rotations to ask a supervisor for a new blade.
The plaintiff sustained shoulder and elbow injuries when one day he overexerted himself when using a blunt knife whilst cutting packaging. A claim was brought for negligence and breach of statutory duty of the Victorian work health and safety (WHS) legislation, for a single event on the day and/or an over-a-period-of-time injury.
The plaintiff’s case failed and the appeal was dismissed.
The allegations of fault asserted by the plaintiff at trial were a lack of adequate training on how and when to rotate the blade. There were failures to provide the alternative safe systems of work of providing an easier way for workers to access replacement blades, and a system of fixed weekly or fortnightly rotations of the blade.
At trial, the plaintiff failed to prove the employer was negligent on these three points, as the trial judge found the employer’s system of work was reasonably safe. However, the claim succeeded due to a misinterpretation by the trial judge of the causation requirements of the breach of statutory duty claim, under the Victorian WHS legislation.
On appeal, the plaintiff conceded the trial judge had made an error on this point, but then instead sought to advance a further allegation of fault by the employer, in failing to warn workers that using a blunt knife for the subject task may cause physical injury.
Most of the appeal judgment is centred around the correct interpretation of the causative elements of the Victorian WHS legislation, and in the author’s view is irrelevant and non-analogous to Queensland practitioners.
In their decision, though, the Court of Appeal confirmed the employer’s system was reasonable and not negligent, however stated that although a failure to warn the case may have succeeded at trial, the plaintiff had not pleaded or led evidence to support this allegation at trial, and therefore was not permitted to advance his case on this point on the appeal.
The plaintiff’s negligence case failed and the appeal was dismissed.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, James Leggo, is an Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.