Injured worker climbs onto roof at nightfall after drinking – no contributory negligence, says Supreme Court

In Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, the Supreme Court of Queensland found in favour of an injured worker who climbed onto a roof to inspect a boiler failure, at nightfall after drinking alcohol. He was awarded over $960,000 and his damages were not reduced for contributory negligence.

Facts

The plaintiff, Scott Walker, was employed as the maintenance manager of the Greenmountain Food Processing Pty Ltd meat processing plant at Coominya.

On Friday 12 June 2015, after finishing work, Mr Walker had two light beers with a friend at the Coominya Hotel. At about 5 pm, he drove home past the plant and noticed large plumes of steam coming from the plant. He realised it was steam venting from a boiler. Knowing the boiler was crucial to the plant reopening on Monday morning, Mr Walker’s ‘sense of duty’ to his role as maintenance manager led him to investigate.

While talking on the phone with the repair contractor, Mr Walker determined that he needed to know which relief valve was leaking so that repair could occur over the weekend. Light was fading, and time was of the essence.

Mr Walker climbed up the stairs, and accessed the roof area by stepping through a gap in the railing onto a section of roof that was alsynite (polycarbonate). When he stepped onto the alsynite, the roof gave way causing him to fall seven metres to the concrete floor.

Mr Walker fractured his skull and sustained multiple injuries to his spine, knees and wrist.

Liability

The employer argued that it was not reasonably foreseeable that a senior employee would access the roof of the rendering shed, in failing light, after consuming two alcoholic beverages and while talking on a mobile phone, when that employee knew that the roof contained alsynite panels. The employer also submitted it was unlikely that any instruction about safety harnesses would have prevented Mr Walker’s actions.

Justice Applegarth found Mr Walker to be a thoughtful, intelligent and honest witness. He accepted Mr Walker’s evidence (and that of the friend he was with) that he had only had two mid-strength beers over the course of an hour and a half. His Honour did not believe that this would have caused any material impact or rendered Mr Walker under the influence of alcohol.

After methodical consideration of the evidence, his Honour found that:

• It was reasonably foreseeable that Mr Walker, or another worker on his instruction, would have cause to go onto the roof to investigate an issue or undertake repair or installation, and the relevant risk of injury from falling off or through the roof was not insignificant.
• A reasonable employer’s response was not burdensome or expensive and could have included safety harness training for employees, instruction not to go on the roof without a harness, implementing a policy and safe work method statement for working at heights or fencing off access to the roof.
• Mr Walker was a safety conscious, dutiful and compliant, and well-regarded employee. Accordingly, implementing any of the possible precautions would likely have prevented the incident.

Contributory negligence

The employer argued that Mr Walker failed to take care for his own safety on the basis he accessed the roof which he knew had alsynite panels, in failing light, while on his phone.

While Mr Walker was aware that there was an area of the roof that was alsynite, he did not believe it was in the area that he was standing and, given the poor lighting, the difference in roof surface was not apparent to him.

Applegarth J indicated he initially believed that stepping onto the roof, without properly inspecting the surface, in fading light was a departure from the standard of care required of a reasonable person in Mr Walker’s position.

However, his Honour concluded that ‘an employee who has not been adequately protected by an employer should not be found to have been guilty of contributory negligence simply because he was engrossed in his task’.

His Honour found that Mr Walker stepping onto the roof was a momentary misjudgement, falling short of contributory negligence.

Quantum

The primary issue with respect to damages was impairment of future earning capacity.

Mr Walker was only 32 years of age at the time of trial, but had worked his way up from electrician at commencement with the employer in December 2008 to maintenance manager.

Despite his significant, permanent orthopaedic and head injuries, Mr Walker was able to return to his pre-injury role as a maintenance manager and was earning the same wage as pre-injury.

Applegarth J assessed the chances of how a variety of contingencies might impact Mr Walker’s future earning capacity, the most significant being the likelihood of losing his present employment.

The employer denied there was any plan to terminate Mr Walker’s employment and his Honour accepted that evidence. However, his Honour found there was reasonably high chance that Mr Walker would not be able to continue in his pre-injury role for a substantial period and that, if that occurred, his prospects of obtaining alternate full time work on the open labour market were poor.

Applegarth J awarded $765,600 for future economic loss and entered judgment for Mr Walker in the sum of $967,383.39 clear of WorkCover statutory refund.