Silent ‘slipper’ found to be 33% contributorily negligent in own fall

17 October 2017

A worker slipped and fell two meters on a work site, but failing to alert his supervisor to the unsafe working conditions resulted in him being found contributorily negligent in his own fall.

The Caringbah Formwork Pty Ltd (Caringbah) employee was working for subcontractor Calcono Pty Ltd (Calcano) on the second-story of a Sydney building, when he slipped on a platform that was wet from rain, and not enclosed by any structure to prevent a fall. The worker fell two meters below and landed on concrete.

In joint proceedings, the worker sued Caringbah (his employer), Diecord Construction Pty Ltd (Deicorp) (the site’s principal contractor) and Calcono (the host employer) for damages.

New South Wales Supreme Court Justice Richard Button dismissed the worker’s claims against Caringbah and Diecord, as there was no evidence that an inspection by Caringbah would have discovered a problem with the wet platform, and Deicorp was not directly responsible for the precise way any work was carried out on the site.

As the worker’s effective de facto employer, Calcono on the other hand was found to have “breached its duty to the [worker] by failing to take reasonable precautions against the possibility that he could fall from the elevated decking” when directing the worker to work in a wet area.

However, Justice Button also found the worker to be 33% contributorily negligent for his own injuries.

Justice Button found that it would have been obvious to the worker that the platform was wet, and due to occupational health and safety training which would have helped the worker develop an understanding of the importance of informing supervisors when conditions are thought to be dangerous, he had an obligation to tell the foreman.

If the worker had done so, the foreman would have undoubtedly proposed that the worker undertake a different task until the platform had dried [and] “the fall likely would not have happened”, said Justice Button.

This serves as a reminder to all employees that despite poor working conditions, they too need to take a responsibility for their own safety.