Walk this way – defending a claim, resulting in a common law claim

Key Points
  • An employer’s duty of care to an employee is very high, but it is not a strict liability.
  • An essential question in determining a worker’s entitlement to damages is looking at what actually caused the damage and looking at how the employer attempted to avoid that risk of injury.
  • If what the employer did to avoid the risk of injury was enough (a “reasonable response”), the worker’s rights will be for compensation, not damages at common law.


An ongoing source of frustration for employers and claims managers arises when measures to mitigate safety issues and protect employees have been appropriately implemented but, often for frivolous reasons, these procedures are ignored and circumvented by an employee. When these situations result in an injury, claims at common law may ensue, often for substantial amounts, leaving the impression that duty of care requirements are almost limitless, regardless of contributory actions by workers.

However, a recent decision (Leman v HV Operations Pty Limited [2017] NSWDC 113) has confirmed the appropriateness of a defendant’s actions, safety measures and processes, resulting in the successful defence of a common law claim for damages of almost $1.2mil. While the  case was brought against the owner of the workplace premises and not the employer (hence liability fell to be determined under the Civil Liability Act 2002 [CLA]), it is a timely reminder that what the defendant must establish is that having identified a risk of injury, it is required to devise reasonable measures to avoid or minimise the risk of its occurrence, not to devise a system that contemplates every possible or imaginable way in which an injury could occur.

It all started on a dark and stormy night….

Or, more accurately, it was afternoon blighted by heavy rain when an employee walking to his car ignored warning signage directing people to “Use Designated Walkways”. He voluntary left the designated covered concrete pathway in preference for a dirt track and subsequently slipped and fell on guttering in the wet conditions, resulting in a lower limb muscle tear.

The worker claimed negligence on the part of the premises owner regarding the state of the gutters and access to the car park. The defendant countered that a safe access to the car park was provided, that the defendant’s obligation did not extend to mitigating risk across all possible access to the area, and that the care taken was reasonable to avoid a foreseeable risk of injury.

The judgement supported the defendant’s contentions, finding that liability had not been established and that the defendant, by providing a paved pathway along with appropriate signage, had met the duty of care requirements. So, although an had injury occurred, the defendant, due to the precautions in place, was found to be not liable for the causation, and the safety measures instituted were deemed sufficient under Section 5B.CLA.

Further, it was found that the employee actions (both in disregarding safety  warnings and the lack of care taken by leaving the designated path) amounted to contributory negligence and would have substantially (by 85%) reduced any payment which may have been awarded, had liability been successfully established.

Of additional interest, Hicksons received instructions in this matter to advise on pursuing a recovery against defendant. Recognising the plaintiff’s limited prospects we advised against commencing an action under section 151Z and therefore recommended maintaining a watching brief. This highlights the need to exercise careful discretion about whether to commence section 151Z recovery proceedings even when a plaintiff has an existing proceeding against a third party.

Post by Stewart Cameron 

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