Is there a duty to warn workers about obvious hazards?

In my latest book, Paper Safe: The triumph of bureaucracy in safety management, I looked at the obligations of an employer to warn employees about obvious hazards, in the chapter, The Handrail Conundrum.


This issue has been explored again in the recent case of a bus driver who was convicted of negligently causing serious injury and jailed for five years.


The case involved bus driver who drove his tour bus into a low bridge, with apparent disregard for all street signage warning about the low bridge and the obvious, observable danger, which at least three of his passengers noticed before the accident.


Six people were injured in the accident.


The recently published sentencing decision examines several factors in the case, but it is clear the driver did not meet the requisite standard of care. The Court noted, for example:

Two drivers following you also saw the danger and tried to warn you but to no avail. Your passengers were some three steps higher than you were.


Three of them, as I have said, saw the bridge immediately before impact. How it is that you didn't is astonishing. [19]


And


Driving an 11-tonne bus with 14 passengers and failing to observe any of the warnings, even the bridge itself is, in my view, a serious example of this offending. As I have said why it was you were so grossly inattentive to your obligations over such a long time is unknown to me. As a consequence of your criminal negligence, no less than six of your 14 passengers were seriously injured. [49]


One element of the driver’s defence touched on the obligation of the employer:


Finally, it was said that your employer had failed to warn you of the bridge in circumstances in particular where another driver of the same company collided with the Montague Street bridge in 2006. It is my clear view that it is your responsibility as driver to observe the road and all its hazards. Employers cannot be blamed for the obvious failures of employees to take the most basic of precautions. It is the duty of all drivers to keep a proper look out. Employee drivers do not need to be told the obvious. [47] (my emphasis added)


These observations by the Court are consistent with other cases looking at the obligations of an employer to warn about obvious hazards. For example, in the decision Seage v State of New South Wales [2008] NSWCA at [32] – [33], the Court said:


It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture?


As we have probably all experienced, many organisations take it upon themselves to warn employees of precisely these types of dangers. But, just because there may not be a “legal obligation” to warn about these dangers that does not mean it is “wrong” to do so.


Obviously, not.


However, I think there is a serious question to be asked about whether consistent noise about all manner of workplace “dangers” has an adverse effect? By always talking about obvious – even trivial – hazards, might we be distracting employees from the real and critical dangers in our business? I think this is a real phenomenon, and one of the contributors to workers general cynicism about safety.


Something else that might be happening, and I often hear it discussed but I am not in any way expert enough to form a view. Is there a possibility that overzealous safety policing – sometimes referred to as hyper safety – could be destroying one of our most important safety defences, the capacity of our workers to recognise, understand and manage risk themselves? Is there an argument to be made that, rather than point out every possible hazard in the workplace and create rules and processes around how they are managed, we might be better placed teaching workers the skills to identify and recognise hazards, and then give them the autonomy, resources and trust to deal with them, themselves?

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