Employers must ensure safety

Monday, 18 July, 2005

A Queensland company that failed to have in place a system for removing by-products has been found negligent for failing to ensure safe access to a workplace.

The worker, employed by Carbon Consulting International, sampled coal at the Dalrymple Bay Coal Terminal (DBCT). He had taken coal samples from a train in a rail receival shed and was leaving the shed when he tripped just outside the door and fell, injuring his back.

The worker had tripped over some 'grizzlies' (large rocks or clumps of clay that had to be removed during the coal unloading process), which had been left outside the shed door. The grizzlies were usually stacked beside a handrail at the side of the train. The worker sought damages from DBCT, alleging that it was negligent in failing to provide a safe system of work.

In the Queensland Supreme Court, Justice Peter Dutney said that for the worker's case to succeed, the evidence only had to establish on the balance of probabilities that DBCT's employees were responsible for the location of the rocks.

He accepted that only authorised personnel could enter the receival area - and it was not the responsibility of a coal sampler to deal with the grizzlies - so it followed that the grizzlies must have been moved from inside to the entranceway by a DBCT employee.

DBCT argued that the worker's specific claim particulars were deficient because they didn't include anything to do with allowing rocks in the area in the first place. But, Justice Dutney found the worker was allowed to rely on his general particular. "Even though it fails to provide any details of the respects in which the system of work was unsafe, no clarification was ever requested by the defendant, nor did the defendant ever attempt to strike out the particular on the grounds that it was in any way embarrassing." Justice Dutney found no evidence of any system to safely remove the grizzlies from the receival area. He said common sense suggested that in the absence of such a system, they would inevitably end up distributed in inappropriate places, and DBCT had a duty to ensure they were kept out of walking areas.

Justice Dutney found the worker had proved DBCT was negligent in both permitting the rocks to be placed in the doorway and in failing to promptly remove them. Taking into account that the incident brought forward by a number of years the worker's degenerative changes in his back, he awarded him $139,814.17, which included $30,000 for pain and suffering.


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