Injured workers in Queensland are usually shocked to receive denials of liability for accidents from WorkCover, or a refusal to accept a claim. To add insult to injury, they are also blamed by their employer for causing the accident in the first place. Anyone who has had a WorkCover claim will tell you – they make you feel like it’s all your fault. Attwood Marshall Lawyers Compensation Law Senior Associate Henry Garrett looks at the rules around the work injury blame game.
When WorkCover denies liability
When WorkCover admits liability in cases of clear negligence, the effect on injured workers and their families is palpable, providing some semblance of light at the end of a difficult and disorientating tunnel. The claimant’s trauma, uncertainty, and legal costs are substantially reduced. Benefits to WorkCover include narrower legal issues, shorter claims, and reduced legal costs of their own.
By contrast, an unfair denial of liability (despite clear negligence) can seriously impact the health and wellbeing of an injured worker.
Injured workers and plaintiff lawyers have long bemoaned unfair liability denials, somewhat cynically claiming that WorkCover issues them for strategic purposes. After all, injured workers are more likely to give up on their claim, or take less than they should, when liability has been denied and the worker blamed for their own injuries.
WorkCover’s slow (and overdue) increase in liability admissions in cases of clear negligence should be commended. However, we look forward to an upward trajectory of liability admissions by WorkCover until they are commensurate with the number of cases where negligence is clear.
Despite WorkCover’s steps to address unfair liability denials, spurious claims of contributory negligence against injured workers continue largely unabated.
What is Contributory Negligence?
Contributory negligence occurs where an injured worker negligently causes or contributes to their own work accident. In cases of “contrib”, the worker’s damages are reduced by a percentage proportionate to their own liability in negligently contributing to the accident.
For example, if a claim is worth $100,000 and a court considers the employer to be 90 per cent liable in negligence, and the worker to be 10 per cent liable by way of contributory negligence, then WorkCover will only be required to pay the worker $90,000 (i.e. 90 per cent of the total damages).
When does Contributory Negligence apply?
A worker may negligently contribute to their work accident by failing to comply with the employer’s instructions, failing to wear the provided safety equipment, failing to follow their training, being too intoxicated to safely undertake the task, or similar.
Importantly, however, courts are very slow to make a finding of contributory negligence against an injured worker if the worker’s allegedly negligent conduct was done to advance the employer’s business, even if the worker’s conduct is highly dangerous.
If an injured worker undertakes a dangerous work task to advance their employer’s interests, courts are reluctant to accept an allegation that the worker should have taken better care for their own safety whilst doing so. Courts are particularly critical of employers blaming injured workers for failing to care for their own safety in circumstances where the employer has failed to instruct, train, or warn the worker about the specific work task beforehand.
The High Court in Commissioner for Railways v Halley held that it is “quite wrong” for an employer to allege contributory negligence against an injured worker who undertook a dangerous work act for the benefit of the employer in circumstances where the employer failed to protect the worker in the first place.
Despite the plethora of “contrib” allegations made by WorkCover against injured workers (usually alleged to the extent of 100 per cent), these allegations are quite difficult to substantiate. The onus of proof lies on the defendant to do so.
A Recent Case Example – Walker v Greenmountain Food Processing
In Walker v Greenmount Food Processing, a maintenance manager was driving past the factory where he worked (after hours, in the dark) when he noticed steam coming from a faulty relief valve. The maintenance manager had been drinking alcohol (two beers). After stopping to investigate, the worker realised that steam was coming from a damaged boiler, which was an urgent issue for the factory to address. To inspect the valves, the worker stepped onto an alsynite panel on the roof whilst also on the phone, trying to organise the urgent repair. When he stepped onto the roof, the panel broke, causing him to fall seven metres onto the landing below. The worker suffered a fractured skull, moderate brain damage and multiple injuries to his spine, knees and wrist.
The work task (i.e. addressing the faulty steam valve) was one in which there had been a lack of training (e.g. working at heights), warnings, barricading, safe work methods and proper practices/procedures. Despite these failures by the employer, the worker was doing the best he could in urgent circumstances (at night, after work) to protect his employer’s interests.
Although liability was straightforward, WorkCover’s lawyers predictably denied liability and claimed contributory negligence against the injured worker.
The defendant claimed:
- It could not have foreseen that an employee would step onto the roof after hours and in fading light – particularly an experienced one who knew that alsynite panels were there. Nor did the employee seek prior permission to access the roof.
- The employee was talking on his phone at the time and did not exercise due care.
- The employee ought reasonably to have known of the risks of stepping onto the roof.
- It was a chance event, and not part of the employee’s normal work duties.
Whilst we did not act in this matter, we expect that the worker must have been incredulous. If the employer knew that the maintenance worker saw steam coming out of the faulty valve (potentially shutting down all production) and failed to investigate, his future employment would surely be called into question.
The worker went over and above for his employer and suffered severe injuries due to the employer’s failures (to train, warn, barricade, have set procedures, etc.).
The plaintiff (injured worker) claimed:
- The employer did not have a safe work method statement that prohibited access to the roof, or a requirement to use a safety harness.
- There should have been physical barriers to prevent access, and warning signs that the alsynite panel existed – it was there to cover a rusted-through hole in the roof.
- The employer should have foreseen the risk of someone falling through the alsynite panels and suffering serious injury.
- Therefore, the employer breached its duty of care to provide a safe workplace.
Despite WorkCover blaming the worker for causing or contributing to his own injuries, the court rejected the employer’s misguided claim of contributory negligence by the employee.
The court found that the employer did not have correct safety procedures in place to cover the situation that occurred and had not directed employees not to go onto the roof of the building.
The plaintiff was awarded just under $1 million in damages which were not reduced for contributory negligence.
Justice Applegarth concluded:
“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”.
Further:
- Contextual allowance must be made to cases where a worker acts “in the agony of the moment”;
- A worker’s mere inadvertence, carelessness, inattention, or misjudgement is not enough to substantiate an allegation of contributory negligence against a worker.
- Intoxication is irrelevant unless the breach of duty was specifically caused or contributed to by the worker’s intoxication, which it was not in this case.
The Future of Contributory Negligence Allegations
Despite the litany of spurious contributory negligence allegations routinely issued by WorkCover, courts are reluctant to uphold allegations of “contrib” against injured workers in most cases. This is particularly so where the worker was undertaking a task to advance the employer’s interests and where the employer has negligently failed to protect the worker in the first place.
Attwood Marshall Lawyers calls for WorkCover to review its approach to issuing contributory negligence allegations against injured workers in circumstances where it clearly does not apply.
At present, plaintiff law firms often advise their injured clients to simply ignore the formal liability decisions of WorkCover (particularly allegations of contributory negligence) because they are not legally founded.
This should not be the case. WorkCover sensibly reconsidered its approach to denying liability in cases of clear negligence and should similarly dispense with unfair allegations of contributory negligence.
Injured workers (and their families) deserve better.
Attwood Marshall Lawyers – helping workers and their loved ones through difficult times
If you have been injured at work, you may be able to make a claim for compensation. Attwood Marshall Lawyers can help you every step of the way.
As a leading Compensation Law firm, our personal injury lawyers are well-versed at ensuring injured workers gain access to their full entitlements when they suffer a physical or psychological injury at work.
We want to help you get the treatment you need so that you can get your life back on track and get back to work.
Contact our Compensation Law Department Manager Tyra Hall on direct line 07 5506 8261, email thall@attwoodmarshall.com.au or call 1800 621 071 to organise your free and confidential initial appointment. You can also visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Southport, Brisbane, Sydney or Melbourne.
