Written by Peter CarterSeptember 25, 2013
The use of razor-sharp off-cuts as a workaround to protect electrical insulation during the construction of a Palm Beach condo development was a reasonable building technique for which an electrical contractor employer bore no responsibility for the injury to a 28-year-old apprentice.
Three appeal judges agreed, ruling he had indeed been exposed to an unreasonable safety hazard.
The severing of his ulna nerve when his left arm accidentally bumped one of the exposed sharp metal channels, was a materialisation of the risk posed by that very danger.
Heywood thus defeated the electrical company’s contention that its improvisation exemplified the exercise of all reasonable care in the circumstances. The employer nevertheless contended that even if safety measures had been implemented “it is probable that they would have not prevented” Heywood’s 2008 injury and as a result, it still should escape responsibility.
Rejecting that proposition, the appeal court accepted the first-year apprentice’s version that he would have done “his level best” to adhere to whatever steps were specified, especially since he had only been on the job for just four or so weeks and was keen to keep his job.
It concluded that the primary judge had erred: the employer had breached its duty to provide a safe system of work and its ommissions had caused the injury and loss suffered.
The Court of Appeal awarded Heywood damages largely in accordance with the trial judge’s assessment, after deduction of the amount WorkCover benefits already received, a net amount of $156,000.