Workplace safety protocols need to be reviewed

A recent case in New South Wales found that an employer operating a winery had breached its statutory workplace obligations to provide a safe system of work, which resulted in an employee suffering fatal injuries while draining liquid from a tank at the winery.

The case is not remarkable for its outcome and its tragic consequences are not unique.  However, comments by the Court are particularly relevant to all employers in relation to the systems of work they may have in place at their workplaces.

Prior to the fatal occurrence at the winery, the employer had in place and implemented a safety protocol which prevented workers from being in a particular part of the winery whilst the plant was in operation.  A component of the plant however moved whilst not being operated due to an unforeseen blockage.  This caused the plant to move resulting in the employee being crushed.

The employer acknowledged the risk of being crushed in the tank area was foreseeable, but said that it was not reasonable to foresee the occurrence that caused the plant to move, that is the blockage, which ultimately caused the accident.

The Court found the blockage hazard was reasonably foreseeable and found the employer consequently liable.  The employer’s safety protocol did not take into account the likelihood of the plant moving whilst not in operation.  Prior to this event, the employer had experienced no other accidents nor incidents concerning the plant in 30 years of operation.

The Court stated that employers should not be lulled into a false sense of security regarding their safety protocols simply because there have not been any previous accidents or incidents in the workplace.  Whilst employers may have developed ‘safety protocols’ to ensure that employees are protected, some safety protocols do not go far enough to cover all bases regarding hazards within the workplace.

This case is a reminder that employers need to ensure that their safety protocols are up to date, regularly reviewed and sufficient to cover all foreseeable hazards within the workplace.  Hence to minimise occurrences such as described above, employers should:

  • provide for all foreseeable risks and not just risks that have resulted in actual incidents;

  • undertake thorough risk assessments of the workplace to ensure that all foreseeable hazards are incorporated into the safety protocols;

  • provide training to employees as to the hazards which have been identified; and

  • at least annually, review the safety protocols within the workplace to ensure that they are still adequate and appropriate for the workplace.

Should you wish to discuss your duties as an employer or anything further relating to this case or any other employment issues, please contact:
Ian Curlewis, Partner, on 9288 6756 / or
Michael Jensen, Senior Associate, on 9288 6944 /

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.