Should workers take responsibility for their own actions when they’re injured at work? Well, that depends. In this article, we’ll discuss contributory negligence in the employment context and look at cases where both a finding of contributory negligence has and has not been made against workers.

In Queensland, the Workers’ Compensation & Rehabilitation Act 2003 (WCRA) sets out the elements required for a finding of contributory negligence to be made against a worker.

So, what is contributory negligence? 

It’s when a worker fails to take reasonable care for their own safety, which contributes to (our emphasis) the harm the person suffers.

For example, if a worker who is required to wear safety glasses forgets to wear them and sustains an eye injury or perhaps the worker is injured when operating heavy equipment but was under the influence of alcohol. 

Section 305F of the WCRA sets out the standard of care in relation to contributory negligence and you can read the many ways a court may make a finding of contributory negligence. Read more here.

Onus of proof

Employers have the onus of proof in establishing whether contributory negligence played a part in the injury. They must prove on the balance of probabilities that the injured worker failed to abide by a standard of care that a reasonable person would have exercised if they were in the same situation. 

How does a finding of contributory negligence against a worker affect liability?

The damages amount awarded is reduced according to the percentage that the worker’s negligence is found to have contributed to the injury. For example, if the court makes a finding of 10% against the worker, the liability of the employer will be reduced by 10%. 

Case studies of contributory negligence

In Kennedy v Qld Alumina [2015] QSC 317 a finding of 50% was made against the worker because he failed to follow proper procedures when replacing a component in a pipe. Mr Kennedy was tasked with replacing a part that controlled the flow through a pipe to a tank containing a hot, caustic solution. He failed to ensure the valve stopping the caustic solution was closed (when it was in fact open) and failed to prove ‘isolation’ (that the pipe was completely drained of solution). Mr Kennedy was an experienced process technician and trained in the correct procedure for safely undertaking the task. In those circumstances, the court made a finding of contributory negligence against Mr Kennedy.

In Longbottom v L & R Collins [2021] QSC 242 a finding of 10% was made against the worker. In this case the worker was employed on a banana farm and was tasked with catching bunches of bananas being cut by another worker. The injured worker sustained injuries when a bunch of bananas collapsed onto him. The court determined that on the day of the incident the co-worker cut the tree too deeply which caused it to fall immediately and without warning. Therefore, the employer was liable for the negligent actions of the co-worker. However, the worker should have been standing clear of the tree and had he done so, ‘in the unlikely event that some part of the tree stem reached him, it would not have caused the damage done by the bunch itself’. In the circumstances, the worker disregarded an obvious risk and failed to take reasonable care for his own safety. Because the accident was primarily caused by the negligence of the co-worker, the worker’s damages were only reduced by 10%.

Some older decisions include:

• The worker fell 2 metres from a train when he failed to take reasonable care for his own safety in the face of an obvious risk – finding of 25%[1]

• A failure to take reasonable care by not glancing up from the ground regularly to avoid potential hazards – finding of 20%[2]

• The worker fell when he proceeded past a barrier and warning sign – finding of 35%[3]

Case study of a decision where no finding of contributory negligence was made

In Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, the worker was employed as a maintenance manager and while driving home (outside of work hours) past his place of work, he noticed large plumes of steam coming from a malfunctioning relief valve. Mr Walker was aware that the whole plant depended on the boiler working so he stopped to investigate. He called the repair contractor and they asked him which valve was leaking. In order to work out which valve was leaking he climbed onto the roof and stepped on the part of the roof that was fibreglass.  This area of the roof gave way and he fell 7 metres onto the concrete floor below and sustained significant injuries. 

The employer argued that Mr Walker contributed to his injuries by accessing a roof which he knew had fibreglass panels, in failing light (5pm in winter) and while he was on the phone. Mr Walker argued that although he knew part of the roof was fibreglass, he didn’t believe he was standing on that area and that due to fading light, he was unable to discern the difference in the roof panels.  

The court concluded that Mr Walker’s decision to step on the roof was an “inadvertent error of judgment made under pressure”. There was no deliberate decision to ignore a risk and therefore no finding of contributory negligence was made.

Take away points

• The Queensland cases indicate that where a worker has sustained an injury from a failure to carry out a task according to proper procedures, the court can make a finding that the worker was contributorily negligent and therefore reduce their damages. It is extremely important that employers keep written training records of the correct procedures for undertaking tasks. This assists to prove that the injured worker contributed to their injuries by failing to follow correct procedures.   

• The courts will distinguish between a deliberate ignorance of risk and an innocent or inadvertent judgment call.

• Each case turns on its own facts and is determined by which evidence is accepted by the court.  

• The courts tend to be more forgiving to workers. There is a higher duty/expectation on employers.

• It’s important to ensure safety procedure or prohibitive access measures are in place for hazardous locations – even if access is rare.

• Although the percentages of findings against workers tend to be low, they can make a big dollar difference if there is a high statutory claims refund, so the issue of contributory negligence is always worth investigating.

Webinar

You can use this WorkCover Qld webinar we presented on contributory negligence for training purposes.

About the author

Claire Bruggemann is a Consultant of Hughes & Lewis Legal

Contact

Claire@hughesandlewis.com.au

[1] Reck v Queensland Rail [2005] QCA 228

[2] Samways v WorkCover Queensland & Ors [2010] QSC 127

[3] Osborne v Downer EDI Mining Pty Ltd & Anor [2010] QSC 470