PCBU does not have to ‘ensure’ safety   

WA; Sept 2014 

It was wrong in law to require a PCBU to "ensure" that no harm came to its employees. It only had a duty to take reasonable care to avoid the risk of injury. This was the finding after an appeal. 

Mr Wieland, suffered injuries in the course of his employment when he lost his footing on the top tread of a set of four stairs and fell.  

On the day in question, Mr Wieland, who was working for Transfield as a senior chef in a kitchen at the naval base at Garden Island, Western Australia, fell as he was returning to the galley after a toilet break. He slipped on the steps leading back to the galley. It was subsequently found as a matter of fact that the rubber strip on the top step was beginning to come loose. 

At trial, evidence was presented that a visual inspection could not reveal defects in the rubber strip. Accordingly, Transfield’s inspections had not found any defects.  The evidence of two employees confirmed that it could not be detected by a visual inspection alone. It could only be identified by physically lifting the strip from the step to which it was glued or by standing at the extreme edge of the tread at which point it began to give. It then returned to its "normal" position once the load was removed. 

Wieland and others had used the steps on hundreds of occasions beforehand without incident and without noticing the defect. There was no evidence to suggest that the strip or the glue were unsuitable for their purpose or non-compliant with Australian Standards or the relevant Building Code of Australia. It was found that deterioration of the glue would happen gradually. 

The trial judge found that deterioration of the glue caused a foreseeable risk of injury and that a system of visual inspection was inadequate to detect the hazard. Specifically, she found that Transfield breached its duty of care to Wieland "by failing to ensure that he was not exposed to risk of injury from the steps in the corridor at his workplace."  

Transfield Services (Australia) Pty Ltd (Transfield) were found to be negligent in not physically inspecting the stairs and thereby failing “to ensure” Mr Wieland’s safety.  

Transfield appealed against the trial judge’s decision.  They argued  that the decision was wrong for the following reasons: 

·        It was wrong in law to require it to "ensure" that no harm came to its employees. It only had a duty to take reasonable care to avoid the risk of injury; 

·        The decision did not properly consider what was a reasonable response to the risk of harm; 

·        The evidence did not support the conclusion that a physical inspection would have made a difference, or what form such inspection should take in order to be "reasonable". 

The Court of Appeal allowed the appeal.  

In the leading judgment, Pullin JA agreed that the trial judge had erred in requiring Transfield to “ensure” the safety of Mr Wieland. An employer is only required to exercise “reasonable care”, his honour ruled. 

The court went on to hold that there was no evidence to suggest that a reasonable employer would have regularly carried out a physical inspection of the stairs. 

Judge of Appeal Pullin also found the trial judge had erred in finding causation. According to the court, there was no evidence to support a conclusion that a physical inspection before the incident would have revealed that the rubber strip was no longer attached to the step and therefore prevented the fall. 

Chief Justice Martin and Newnes JA agreed with Pullin JA.