Who is liable if a worker returns to the workplace after work hours and injures themselves? Do employers have a duty of care to their workers in these instances?
The answer will depend on the facts of each case. In the decision of Walker v Greenmountain Food Processing Pty Ltd, handed down on 29 October 2020, Justice Applegarth of the Queensland Supreme Court held that the employer did in fact have a duty of care to its worker.
In this particular case, the Plaintiff was employed by the Defendant as a maintenance manager.
The Plaintiff finished his shift at 3.00pm on Friday and went to a local pub for a couple of knock-off beers. After that he left for home, driving back past the Employer’s premises where he noticed plumes of steam venting from a malfunctioning relief valve.
Conscious of potential damage to the premises, he decided to investigate in the “fading winter light”.
The Claimant accessed a metal roof whilst speaking to a maintenance contractor on his mobile phone. While traversing the metal roof, he stood on a fibreglass panel which could not support his weight. He fell more than seven metres to the concrete floor and suffered serious injuries.
The court held the activity undertaken by the Plaintiff at the time of his injury was within the scope of his employment, whether or not it occurred outside normal working hours. The Plaintiff had not been specifically trained regarding roof access and therefore did not know to avoid the fibreglass panels which were incapable of bearing his weight. Given the perceived emergency, he was merely taking prompt action to investigate the malfunction, and inadvertently stepped on the fragile panels.
In addition, the court did not accept that the Plaintiff was contributorily negligent having consumed a couple of mid-strength beers, because that would not have been enough to render him intoxicated.
The facts in this case are somewhat unique and it is easy to understand why an employer would argue it should not be liable for injury resulting from after-hours access. However, in the circumstances, it was foreseeable that a person could fall through the fibreglass panels if they accessed the roof, and the Plaintiff was acting in the course of his employment by responding to an emergency, albeit after normal working hours. The risk of injury could have been reduced or avoided by appropriate signage or barricades preventing access to the roof which was incapable of sustaining a person’s weight.
