WHEN LADDER REPAIRS SLIP AN EMPLOYER’S MIND

When you join us, you will become part of our national team working with partners across Australia on a broad range of practice areas and industries. Of course, you’ll still work closely with your local partners in Brisbane who cover a range of practice areas, including dispute resolution, energy & resources, mergers and acquisitions, equity capital markets, real estate, regulatory, restructuring and insolvency, banking and finance, and corporate finance. In addition to all of the above, our graduate program will give you access to: • Grad Academy – an intensive off-site two day conference where you will meet your peers from across our national offices, learn about our practices, important legal concepts and the skills to accelerate your career

• College of Law enrolment and a dedicated tutor support

VIBE PRACTICE AREAS

Looking after people is our top priority: our lawyers, business services professions and our clients. Our ethos is: “we’re in it together” – it’s the cornerstone of our WHEN business and what makes us a bit different. We value ‘humanity’ and ‘collaboration’ over everything else. We care about the wellbeing of our people and invest time in understanding their objectives to support their LADDER development, throughout their careers. When people come first, numbers take the backseat. We have no billable targets and less internal hierarchies, so you will be free to focus on the quality of your work and REPAIRS SLIP AN delivering the best results for our clients.

A BIT ABOUT YOU

EMPLOYER’S If you are enthusiastic, driven to succeed and want to continually develop your skills, you’ll fit right in. We’re looking for graduates who have not only excelled MIND academically, but have great communications skills, thrive in a collaborative environment and want to deliver legal advice to create the best outcomes for our clients. Have the opportunity to work alongside our outstanding lawyers. With us, you’ll gain a diverse range of experiences and develop the legal and commercial skills to provide high quality advice to sophisticated commercial clients. Competition/ antitrust Dispute resolution Corporate Employment Corporate governance Energy and resources Debt finance Foreign investment

MORGAN LYNCH

CLERKSHIP PROGRAM

Gain a realistic snapshot of what your future with us would look like. You will: • work closely with partners and senior lawyers across all of our practice areas

• from day one, you will work on high profile, complex matters

• benefit from your own structured and bespoke professional development program

• receive guidance and mentoring from a strong support network

Funds management Projects and construction

Intellectural property and IT Regulatory

Media Restructuring and insolvency

Private equity Tax

A RECENT JUDGEMENT BY THE SUPREME COURT OF VICTORIA SERVES AS A REMINDER OF THE DUTY OF CARE EMPLOYERS OWE TO AVOID EXPOSING THEIR EMPLOYEES TO AN UNNECESSARY RISK OF INJURY.

In February last year, Justice Forbes of the Supreme Court of Victoria handed down her judgement in Da Costa v Bitu-Mill (2021) Aust Torts Reports 82-606. The case concerned Mr Shaun Da Costa (‘the Plaintiff’), a former employee of BituMill (Vic) Pty Ltd (‘the Defendant’). The Plaintiff alleged that, while working on the night of 1 February 2009, he attempted to descend the ladder-like steps of a road removal

machine called a profiler. There was no light illuminating the steps so he could not see where to place his feet. His left

foot slipped on the bottom step and his knee was injured.

The Plaintiff brought an action against the Defendant for breaching its common law duty of care and its statutory duties under the Occupational Health and Safety Regulations 2007 (Vic) (‘Regulations’) by:

not providing adequate lighting in the area of the steps; allowing the steps of the profiler to become bent, defective and in a poor state of repair and maintenance; and failing to heed and respond to complaints about the condition of the steps.

LIGHTING

The Court held that, as the lights on the profiler were not permanent fixtures, the access steps contemplated use in very low light conditions. It was not as if the Plaintiff simply missed his footing in the dark; an adequate tread on the steps would have otherwise permitted a safe descent.

CONDITION OF THE STEPS

The Plaintiff testified that the steps became worn from constant use. The bottom step was held in place by a rubber

side, rather than a metal side, allowing it to move when it was stepped on. Justice Forbes accepted the Plaintiff’s evidence that on the night in question, the steps were bent and damaged and the tread was worn.

RESPONSE TO COMPLAINTS

The Court accepted that the Plaintiff made verbal reports to the Defendant about the condition of the steps on profilers, but not specifically about the steps being defective. Irrespective of these complaints, it was clear the Defendant was aware of the risk of slips and missteps for employees

using the steps. The rubber mounts used on the bottom step were not designed to prevent damage, but rather to lessen the amount of damage known to occur during use. This reinforced that the Defendant expected the step to sustain wear and damage.

The Defendant’s case was that it had a system of identifying defects and shortcomings in the steps. Its machinery was maintained by a full-time mechanic who operators could

contact if a machine required on-site work. Otherwise, machines were serviced after every 250 hours of use. However, Justice Forbes concluded that these measures were

primarily directed in ensuring the machines were safe to drive, rather than to minimise risks posed by the steps.

checklist at the start of each shift. However, the checklist did

not specifically require the operator to assess the condition of the profiler’s steps. The Court found that the checklist did not ‘allow for monitoring the accumulation of small dints, the wearing down of perforations or the stretching of rubber as occur over time’. Moreover, the Court was not satisfied

that, if an operator included a note on the checklist about

a non-mechanical issue with a step, there was a system in place to ensure this issue would be drawn to the mechanic’s

attention.

NEGLIGENCE

The Defendant, as an employer, owed the Plaintiff a duty to take reasonable care to avoid exposing him to an unnecessary risk of injury. This included ensuring the condition of the steps was adequate to reduce the risk of slips and missteps.

The Court found that the risk to the Plaintiff was not

unforeseeable or fanciful. The Defendant knew the steps were all hazards with regards to the health and safety associated with the use of a ‘plant’ in the workplace. The profiler was clearly a ‘plant’, and the Defendant’s knowledge that the steps could sustain damage may arguably amount to an identification of the hazard.

The Defendant presented evidence that the machine was subject to annual risk assessments. However, they did not

provide any details as to who conducted these assessments,

how they were conducted, any hazards identified during the assessments or what steps were taken to reduce or eliminate

the hazards.

Nonetheless, given the Court’s finding as to negligence, it was not strictly necessary to conclude whether the Defendant breached their statutory duty.

prone to damage but did not have a system in place to identify and repair or place steps that became unsafe. There was a

range of relatively simple and straightforward steps available to the Defendant to help mitigate the risk, including providing non-slip surfaces on the tread of the step, replacing the step or installing a hinged bottom step.

Therefore, the Defendant had acted negligently.

BREACH OF STATUTORY DUTIES

Under the Regulations, an employer must, as far as is reasonably practicable, identify, eliminate, reduce or control

LOSS SUFFERED

The Plaintiff underwent several types of treatment for his knee injury following the accident, ultimately culminating in an above-knee amputation on 23 May 2017. This had

an extremely negative impact on his mental health and his relationship with his family, and he was being treated for ‘a major depressive disorder with anxiety features’.

His ability to wear a prosthetic leg was compromised by lower back pain and complications from the amputation, leaving the Plaintiff mostly dependent on a wheelchair. He had not been able to return to work as a profiler since March 2009, and he was unable to work in any capacity following a total knee replacement surgery in January 2010.

ASSESSMENT OF DAMAGES

The assessment of damages was complicated by the fact that the Plaintiff suffered an underlying degenerative knee condition as a result of an earlier work injury in 1998. This made it necessary to reduce the award of damages to account for the possibility that this underlying condition could have negatively affected the Plaintiff later in life even if the Defendant’s wrongdoing had not occured. In other words, even if the Plaintiff had not slipped on the step in 2009, there’s a chance he would have suffered a decline in his work

capacity and quality of life anyway.

Ultimately, Justice Forbes awarded the Plaintiff over $2 million in damages. She assessed the award of damages for the Plaintiff’s pain and suffering to be $600,000, allowing for a 20% reduction (to $480,000) to account for the impact of the Plaintiff’s underlying condition absent the Defendant’s breach. She awarded an additional $974,275 for loss of past earnings and $20,000 for tax paid on compensation payments. Finally, the Plaintiff’s future loss was calculated at $1,057,153, less a 40% reduction (to $634,292) to reflect

the risk, something else may have interrupted or shorted his earning capacity even if the Defendant had not acted negligently.