A Western Australian employer has been ordered to pay more than $400,000 in damages to a worker who was injured while performing a task that it wrongly believed to be "common, practical and safe".
The Piv's Engineering Pty Ltd worker told the District Court that in August 2007 he used a crane to pick up a 270kg L-shaped piece of steel and put it on a trestle, where he tack welded it to a workpiece while it was still attached to the crane.
The crane was then removed because "everyone wanted to use it", he said.
When he moved the workpiece to work on it, the tack weld failed, causing the steel to fall and land on him, crushing his leg.
He also injured his left shoulder when he landed on the concrete floor. He said that since the incident the pain in his leg was "there all the time", he usually had pain in his lower back, and he could no longer lift his left arm because of his pain.
The worker alleged the employer was negligent in failing to instruct him to properly secure the workpiece, failing to provide adequate overhead mechanical means for securing steel structures, failing to provide him with adequate supervision and failing to undertake a hazard analysis of the job.
The employer accepted liability, but argued the worker was "contributorily negligent in that he failed to perform an adequate tack weld, take reasonable care to ensure that the tack weld was sound and/or for failing to carry out his duties in a reasonably safe manner in all of the circumstances".
The employer argued that the procedures put in place to secure the workpiece were "common, practical and safe", and had been performed by the worker "on numerous occasions" prior to the incident.
It said the worker was "more than adequately trained and experienced to know how to safely complete the job", and that his injury "was not reasonably foreseeable and there was no reasonably practical measures [it] could or should have taken to avoid its occurrence".
But District Court Commissioner Michael Gething found that a "reasonable employer" would have "appreciated the risk that the tack welds in the present case could fail".
He said there was no "inadvertence, inattention or misjudgment" on the part of the worker.
"The [worker] acted with due care, based on his experience. He was given no supervision, and did not act in breach of any direction from his employer," he said.
"The [employer] has failed to discharge the onus on it to prove contributory negligence."
Approach to safety "rudimentary"
The worker also claimed that when he joined the company he was not inducted or given any safety instructions.
He said he had never undertaken safety induction training or attended safety meetings.
The employer argued that safety meetings were held "every couple of months or so", and an undated Employee Induction Verification Form showed the worker had been inducted.
Commissioner Gething said the form seemed "fairly rudimentary" and that it seemed to "deal mainly with procedures".
"The minutes of the toolbox meetings also suggest a rather rudimentary approach to safety," he said.
Commissioner Gething assessed the worker's damages as $747,346 in economic loss and medical expenses.
However, he was required to cap the payout at $400,475, after assessing the worker's permanent impairment as less than 25 per cent.
Alvarez Cabrera v Piv's Engineering Pty Ltd [2012] WADC 62 (27 April 2012)
