Liable: Coles failed to train against foreseeable risk

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Liable: Coles failed to train against foreseeable risk

Coles Supermarkets has failed to overturn a ruling that it was liable for $1m in damages after an employee fell from a step while stacking shelves.

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Coles Supermarkets has failed to overturn a ruling that it was liable for $1m in damages after an employee fell from a step while stacking shelves.

It confirmed the employer should have provided training.

Facts and background


A woman employed by a supermarket chain was required to rearrange stock on higher shelves in a store. To reach the stock, she used the so-called Safe-T-Step provided by the store. The device had an upper platform about 0.37m from the ground and a half-way step about 0.18m from the ground on each of its four sides. The woman usually dismounted sideways to her right with her right leg. She then kicked the step along the aisle before stepping up again to reach the next section of high shelving. She had seen co-workers using the step that way and imitated their method.

When the woman dismounted via the half-step in December 2009, she fell and was injured. She sued the employer in negligence, but the employer denied liability. In its induction booklet it had provided her information on the safe use of the step.
Alternatively it argued that the safe way of using it had been obvious, and by not using it that way the woman was guilty of contributory negligence.

The trial judge in the Supreme Court of the ACT found the employer liable in negligence (Harris v Coles Supermarkets Australia Pty Ltd [2017] ACTSC 81). 

The issues


In the Court of Appeal, the employer appealed against the findings of its liability and that the woman was not guilty of contributory negligence.

Considerations


The argument that the danger of dismounting sideways from the step had been so obvious that no reasonable adult would require training or supervision was not accepted by the justices in the Court of Appeal. This was because the employer had already at the trial conceded that the risk of harm from using the step that way had been reasonably foreseeable and ‘not insignificant’. This view had been backed up by two ergonomists giving expert evidence.

The trial judge had also dealt with the issue of the likelihood of an accident caused by unsafe use of the step. The employer’s accident statistics had revealed that about 47% of accidents between 2004 and 2009 had involved people dismounting from the step. The recommendations after a risk assessment had been that there should be training and supervision in the use of the step and that line managers should do the training and ensure compliance. On that basis, the employer had included the information in its induction material that employees were to step down backwards from the step and not forwards or sideways.

The justices accepted evidence that, because of the volume of material given to new employees at induction, it was understandable that the woman, and others, had no recollection of being informed of the safe use of the step. In addition, there was no evidence the employer had provided any supervision in the use of the step. The woman herself had regarded the sideways dismount as a time saver because, without the need to turn the body and step down backwards, she could immediately kick the step further along the aisle before remounting it again.

Decisions


Justices Mossop, Loukas-Karlsson and Charlesworth found that the trial judge’s conclusion that the standard of care required the employer to provide training and supervision relating to the use of the step had not involved any error. The employer had therefore been liable for the injury.

Since there was no evidence that the woman had known her method of using the step had exposed her to a risk of harm, there was no question of contributory negligence.

The justices dismissed the employer’s appeal.

The bottom line: If you concede that a risk of harm from a way of working is reasonably foreseeable and ‘not insignificant’, you cannot then argue that neither training nor supervision is necessary because the way of working is obvious. Also, if there is no evidence that a worker is aware of a risk of harm, the worker cannot be guilty of contributory negligence.

Read the judgment


Coles Supermarket Australia Pty Ltd v Harris [2018] ACTCA 25 (29 June 2018)
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