Bourk v. Power Serve Pty Ltd and Ors [2008] QCA 225

This recent decision of the Court of Appeal sends a clear reminder to all employers of the strict obligations the law places upon them to protect their workers against workplace injuries.

The case highlights the need for all employers to have appropriate systems in place to identify defects in equipment and to maintain equipment, even where that equipment is new.

Mr Bourk sustained serious injuries when he fell from a power pole as a result of a clip on his safety harness failing. The clip itself was approximately six weeks old and it was said to have complied with the relevant Australian Standard at the time of purchase. The clip was defective in that its spring loaded "gate" intermittently failed to close. Had the employer inspected the clip, this defect may or may not have been discovered.

The Trial Judge found that whilst the supply of relatively new equipment may have been sufficient to discharge the employer’s duty of care under the general law, there was still a breach of the Workplace Health & Safety Act ("the Act"). Unfortunately for Mr Bourk, the finding that there had been a breach of the Act was not sufficient to establish liability on the employer’s part – Mr Bourk still had to show that that breach caused the injury and the trial judge was not satisfied that Mr Bourk had proven this. The difficulty for Mr Bourk was that he had no memory of the accident, the clip had been lost by a third party and there had been no reported defects before the accident occurred.

The issue on appeal was whether the employer’s breach of the Act caused the injury in circumstances where the employer did not have any system of inspection and checks in place with respect to the clip, even though such a system may not have identified the defect anyway.

Section 28(1) of the Act provides that an employer must ensure the workplace health and safety of their workers at work. In order to discharge this obligation, an employer must comply with all relevant advisory standards, industry codes of practice, ministerial notices and regulations made about the way to prevent or minimise exposure to a workplace risk. If, as in this case, there are no such standards or practices in respect of the particular risk, the employer can discharge their obligations by choosing an appropriate way to deal with the workplace risk, by taking reasonable precautions and by exercising proper diligence.

The Court of Appeal found that the employer was in breach of section 28 of the Act and that breach caused the claimant’s injury. The duty imposed by section 28 was found to be absolute. Had there been a diligent system of checks and inspection in place and this system failed to find the defect, the employer may have been able to establish a defence under sections 27 or 37 of the Act. However, as there was no system at all, it was quite irrelevant that such a system may, or may not have detected the relevant fault.

Mr Bourk was awarded $850,000 in damages (including a significant refund to WorkCover Queensland), a result which is likely to have an impact on the employer’s WorkCover premium in subsequent years.

Employers are reminded that their obligations under the Act do not just extend to their workers. The Act creates obligations in respect of any other persons who might be affected by the conduct of their relevant business or undertaking, which includes members of the public who come into the workplace.

If you have any queries regarding this issue or would like to discuss any other matters related to insurance law, please contact one of our Insurance team on 07 3231 2444.