In Doumit v Jabbs Excavation the NSW Court of Appeal found that although employers do have the duty to ensure the safety of employees, the duty does not extend to circumstances where the employee disregards the safety system in place. A personal injury claim was rejected and dismissed on appeal as the employee had no regard for his safety and the employer did take reasonable care of the employee with respect to the system of work.
The employee received training on how to work around bulldozers on site. The employee was working in the vicinity of a bulldozer picking up timber and debris as the site was being cleared, ignored signs and warning sounds and was hit by the bulldozer while it was reversing. The driver of the bulldozer could not have seen the employee who was directly behind him, the bulldozer was fitted with a beeper when it was in reverse. The employee was directed to keep clear of the bulldozer, and it was not understood as to why the employee would stand in the blind spot where the driver could not have seen him when the risk of injury was so high.
It is very important for employers to have documented and enforced safety systems of work in place for which all employees receive adequate induction and regular training. Where an employee deviates from instructions it will be difficult for liability to attach, as the employer would have done all that is reasonably practicable to maintain the safety of the employee. Although the employer escaped liability in the personal injury claim where negligence is a key element – it is unlikely it would have escaped a successful prosecution in NSW. The NSW safety regime reverses the onus of proof and requires a higher standard of safety protection than the common law test of negligence.