Employer liable for health and safety failure of employee to protect themselves…

The District Court found a company liable for the death of their employee. An employee of the company died while operating machinery. He was an experienced and rigorously trained worker who was responsible for supervising other workers.

The employee removed a steel mesh guard on machinery to clean it. Although he had previously switched off the machine for cleaning earlier that day, on this occasion, the machine was still running. Tragically, he was drawn into the machine and was fatally crushed.

The machine had been retrofitted by the company with guarding intended to prevent access to moving parts. However, these guards were secured with "quick-release" fasteners rather than being interlocked to the machine's power source. This meant the guards could be easily removed by a worker while the machine was still in operation.

The Court largely focused on the guard system on the machine, and whether it was “reasonably practicable” for the company to have installed interlocking guarding, instead of the quick-release guards. In reaching their decision the court focused on a number of factors, including:

Foreseeability
The company’s duty to ensure the health and safety of their works includes guarding against mistakes their employees may make. The Court held that even though the employee was well trained, it is foreseeable that they may try and clean the machine while it was still running. As such, the company’s failure to put preventative measures in place against this was a breach.

Availability of safety technology
Experts testified that an interlocking guarding system was available, suitable and cost effective. The company had no excuse to not have such technology in place.

Industry Standards
Even though the company argued that no other company in the industry was using interlocking guards, the Court said that industry standards are judged by what other should be doing, not what they are doing.

Feasibility
The Court also did not accept the company’s argument that an interlocking guarding system would cause time delays that would make the work unviable. The Court said the safety concerns warranted a slight inconvenience in turning off the machine to clean it.

The Court held it was reasonably practicable to install an interlocking guarding system on the machine that would have prevented the incident from occurring, and by failing to do so the company did not meet their obligations.

This case serves as a reminder to employer and business to ensure that they are taking all reasonable steps they can to ensure they provide a safe environment for their workers. Of particular note is the Court highlighting that the company was liable for not protecting against foreseeable human error. Just because a worker may make a mistake, does not mean the employer is off the hook. In this case, the overall environment created by the company was the focus.

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