Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker  NSWCA 296 (8 December 2021)
This 2021 Court of Appeal Decision canvasses the extent to which an employer owes a duty of care of an employee who is tasked with working at another place or premises of work, and what that duty entails. In this matter, the Court found that the Employer did not breach its duty of care to their employee.
Ms Walker, the first Respondent, was employed as a shearers’ cook by the second respondent, Shear Away Pty Ltd. She was working at two different grazing locations under the control of Top Hut, the Appellant. She injured herself when falling off a step upon entering an accommodation hut at a grazing property on 28 July 2015. She sued Top Hut for damages, and liability was admitted.
Top Hut then cross claimed against Shear Away, asserting that as her employer, it had failed to take proper care for her safety by not adequately inspecting the premises where she was to work.
The primary judge at first instance dismissed the cross claim, finding no breach of duty of care of the employer and awarded Ms Walker damages in the sum of $992,866.34 as against Top Hut as occupier. Top Hut appealed against the dismissal of its cross-claim against the employer (and in part against the award of damages).
The Court of Appeal unanimously dismissed Top Hut’s appeal. Gleeson JA (with Preston CJ of LEC and Stevenson J agreeing) applied Dib Group Pty Ltd Trading as Hill & Co v Cole  NSWCA 210 and found that where the employer is not in control of the premises or place at which the worker is injured, the scope of the employer’s duty, and what constitutes a failure to fulfil this duty, must depend upon all the circumstances.
He found that the primary judge was correct to find that a visual inspection by the employer of the premises, including of the accommodation building, was required by an employer in the position of Shear Away to ensure that its employees were not exposed to unnecessary risk. Such an inspection had been performed by the employer, whose representative had observed the step from a short distance away when unloading the stores from his trailer to the kitchen, the door to which was a couple of metres from the step to the accommodation hut.
The Primary Judge did not accept Top Hut’s submission that what was required of the employer was to either kick the step or physically handle or manipulate the step to ensure that it remained static when downward force was applied to it, and such submissions were not pressed before the Court of Appeal. Rather, Top Hut submitted in the Court of Appeal that what was required of the employer was to physically test the step by walking up and down it a few times. The Court found there was no error on the part of the primary judge in finding that such an inspection would not have revealed the defect with the step. Ms Walker, who did walk up and down the step on several (separate and prior) occasions, had not experienced or reported any instability of the step prior to the accident, and she was not cross examined on this issue.
The take away?
An employer who dispatches employees to other places or premises must still take reasonable care to devise a safe system of work- they cannot renounce all responsibility for their safety. However, the duty owed will operate differently on an employer’s own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which the employer does not have control. What can be said to satisfy that duty of care will differ dependent upon the individual circumstances.
In Dib Group, Basten JA found that it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. In Ms Walker’s matter, the Court was satisfied that a visual inspection that did not identify any defects, when coupled with the employers prior knowledge and use of the premises in question, was sufficient to discharge the employers duty.
In short, it is important to remember a duty is still owed by an employer, no matter where you task your employees to work. It is important to have a system of inspection or assessment of alternate work premises so that consideration can be given to whether they are safe and fit for purpose for what an employee is tasked to do. It will not be sufficient to rely upon the assessments of others to discharge this duty.
Contributor: Katrina Jenkins
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.