The Facts
Maintenance manager notices steam rising from plant premises when driving past after work
The plaintiff was the maintenance manager of a meat processing plant. He finished work at 3:30pm on a Friday, 12 June 2015, and met a friend at a hotel where they each had two schooners of mid-strength beer.
While driving home past his workplace at about 5pm, he noticed large plumes of steam venting from some large tanks due to a malfunctioning relief valve.
He phoned the boiler contractor, who told him that it was time-critical for him to find out which valve the leak was coming from before the steam ran out. This was so that the leak could be repaired on the weekend and the plant could open on Monday, as the tanks were essential to the processing.
Maintenance manager goes to investigate steam leaking from tanks
The manager went to investigate which pipe was leaking so that the problem could be fixed over the weekend. He could not see from outside, so he climbed up the steep metal stairs to the platform near the top of the tanks.
From where he was standing on the platform he was unable to see where the leak was, as there were three parallel pipes.
At first he leaned out through a gap in the railing, but still could not tell where the leak was because of the cloud of steam, so he stepped through the gap in the railing onto the roof of a shed. He was still on the phone to the boiler contractor at that time.
Maintenance manager falls through roof and suffers serious injury
It was winter and the light was fading, so the manager stepped onto the roof surface to get a better view. There was a section of the roof that had been replaced some years ago with a polycarbonate product called “Alsynite”.
He had known about the replacement, but not the exact area where it was. He stepped onto that section and it collapsed, resulting in him falling over seven metres onto a concrete floor and sustaining serious injuries.
He fractured his skull and injured his spine, knees and wrist. He was knocked unconscious and was eventually found by a truck driver making deliveries.
Dispute between worker and employer proceeds to Supreme Court
The manager sued his employer for negligence, which the employer denied.
It was up to the Supreme Court of Queensland to determine whether or not the worker should receive compensation.
Expert commentary on the court's decision
Supreme Court finds in favour of maintenance manager
In the case Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, the court determined that while it was not common for workers to go onto the roof of the shed, there were potential reasons why it might be required, such as to identify a problem or to carry out minor repairs or installations.
This would be the responsibility of the maintenance manager, Mr Scott Walker, whether personally or by directing others.
Absence of policies or training related to accessing roofs of buildings
The court found that workers were never instructed not to go onto the roof. The employer, Greenmountain Food Processing, had safety documentation with respect to working at heights, but there was no evidence it was ever given to Mr Walker.
There was no policy for working at heights outside or on the roofs of buildings. There was a scissor lift available, but it would not have allowed Mr Walker to see the leak and it could not have been accessed in a timely manner.
Court rejects employer’s argument that manager was under influence of alcohol
The court determined that Mr Walker would not have been under the influence of alcohol at the time and rejected the employer’s attacks on his credibility for not disclosing to Workplace Health and Safety Queensland that he had been to a hotel.
The court accepted Mr Walker might have felt that disclosing that fact might open him to unfair or unfounded allegations of intoxication.
Employee acted out of sense of duty and failed to appreciate extent of risk
The court accepted that Mr Walker was acting out of a sense of duty and on the advice of the boiler contractor in trying to observe where the leak was coming from, so as to ensure the plant could operate on Monday.
He was taking a risk in being on the roof, but did not appreciate the extent of the risk. Nothing caused him to stop and think about the risk or prevented his access to the roof, or prevented him from walking on the Alsynite.
Court determines risk of injury was foreseeable by employer
The judge identified the relevant risk of injury as the risk of suffering injuries when investigating a maintenance problem or undertaking a repair or installation that required Mr Walker to go onto the roof of the shed.
Investigating maintenance needs and making repairs was part of his duties, and he was required to be on call after hours, so it did not matter that the problem had happened after hours or that he saw it by chance.
The risk was foreseeable within section 305B(1)(a) of the Queensland Workers’ Compensation and Rehabilitation Act 2003 for those reasons and in circumstances where:
In the view of the court, the risk of falling off or through the roof, particularly through the Alsynite, ought to have been known or identified on a risk analysis.
Simple and inexpensive precautions employer could have taken
While the probability of the risk occurring was low, it was “not insignificant”, especially given the seriousness of the potential injury. The burden of taking precautions to avoid the risk of injury was not great.
Even a simple and obvious warning sign such as “Danger: No access to roof without safety harness”, in accordance with a safe work method statement as set out in section 300 of the Queensland Work Health and Safety Regulation 2011, would have been compliant with the duty of care owed by the employer.
The court rejected the suggestion that directions or training of workers not to go onto the roof would not have stopped Mr Walker from going onto the roof in the circumstances of urgency, such as those which arose.
The court accepted that he was a dutiful and compliant employee who would have observed such a direction made for his safety. If properly trained, he would have considered the risk more carefully and would have used a safety harness to access the roof.
Contributory negligence and alcohol consumption
Greenmountain Food Processing argued that the appropriate finding in relation to Mr Walker’s contributory negligence should be 50 per cent.
The court considered the question of Mr Walker’s contributory negligence in accessing the roof, which he knew to have Alsynite panels, in failing dusk light, while engaged in a mobile phone conversation.
According to the judge, Mr Walker was “following instructions from an expert in the field” over the phone. Also, the issue of the consumption of alcohol was raised, which was found to “not add much to the equation”. Both of these arguments were thus declined by the judge.
The judge commented that “an employer must bring into account, in formulating a safe system of work, the possible distraction of an employee preoccupied with the task in hand”, as Mr Walker was. The judge concluded that his conduct amounted to “mere inadvertence, inattention or misjudgement”.
Mr Walker’s distraction in not fully considering the risk was due to his attention being focused on the urgent task, as he had not been specifically warned of the risk or trained in a safe procedure.
He was not disobeying any directions. It was an inadvertent error of judgment made under pressure, and the judge found this to fall short of contributory negligence.
Long-term impact of diffuse brain injury
After the injury Mr Walker had returned to his job, but he experienced physical and cognitive limitations in performing it and would need the support of a compassionate employer. Due to his physical injuries and particularly the diffuse brain injury he had suffered, he was found to be unlikely to progress in his role.
The judge also felt that he would be at a great disadvantage if he lost his current job at the meatworks or there was a change in the employer, as he could not become a tradesman or do manual work.
Mr Walker’s brain injury and subsequent limitations would prevent him progressing to higher management or seeking another similar role: he was “locked into trying to hold this job”.
After considering a variety of contingencies, and having regard to the principles in Malec v JC Hutton Pty Ltd, the court arrived at a judgment for Mr Walker for $967,383.