Whilst CIOLPAN -v- SWAN TRANSIT SERVICES (SOUTH) PTY LTD [2020] WADC 95 is a Western Australian case, it provides useful guidance on the employer’s duty to provide a safe workplace for their employees.
Background
On 11 June 2015 the worker was driving a bus, with the driver seat set to the soft setting, over uneven ground causing the driver’s seat to violently bounce up and down resulting in injury to his neck.
The worker made a number of allegations including that the employer was negligent for failing to warn him of the risk of injury from the driver’s seat ‘bottoming out’ whilst driving the bus when the driver’s seat was adjusted to the soft suspension setting.
The worker’s evidence was that he always set the driver seat to the soft setting because it was most comfortable. He admitted he was shown how the seat could be adjusted but had never been told what suspension setting should be used or that there was any possibility that the seat could bottom out if the suspension was on the softest setting. He was also regularly reviewed by senior drivers who similarly never told him not to set his seat on the softest setting. The Drivers manual also did not include a warning of the risk of setting the seat to the soft setting.
The Finding
The main question at hearing was whether the worker’s injury was caused by the negligence of his employer.
After reviewing the CCTV footage of the incident depicting the road in front of the bus and hearing the evidence of the worker and two witnesses, the Judge found that:
- driving over the corrugations had the capacity to cause significant jolting to the bus and the driver; and
- the downward travel of the seat ended abruptly and with sufficient compression and flexion for injury to have occurred;
- the worker’s injury occurred not only when the seat reached its bottom most point of travel but when it came to an abrupt stop, or when it ‘bottomed out’ when the seat hit the hard floor.
The Employer’s Duty
The Judge held that the duty owed by an employer will include an obligation to take reasonable steps to establish, to maintain and to enforce the safe system of work.
In the circumstances he held that:
- it was reasonably foreseeable that a bus driver was at risk of injury if the driver was not warned that he/she might be injured by adjusting their seat to the soft suspension setting; and
- it was not only foreseeable but foreseen that injury could arise if there was a forceful downward movement of the seat and an abrupt halt, the very reason the seat had air suspension to begin with; and
- It was not an onerous task to give a proper induction to workers and to place written notice in each bus and in the driver’s manual
As these simple and cost effective steps were not undertaken by the employer, the Judge found there was a breach of the duty owed to the worker and awarded damages totalling more than $1,000,000.
Note: In NSW a worker injured as a result of their employers’ negligence, can only commence proceedings in Court if their level of Whole Person Impairment is assessed at 15% or more.
If you have been adversely impacted by an employer’s failure to advise risk of injury or to provide a safe workplace, please contact Amanda Robinson for an obligation-free consultation. You can either book an appointment online or call us on (02) 4050 0330.
