When an employee is injured in the workplace insurers need to consider the personal contribution the employee made towards sustaining the injury in the first place. In legal terms, this is called contributory negligence and, if the insurer can prove it, a finding of an employee being negligent can represent a significant reduction in damages paid by the insurer.
In this case summary we examine a damages claim made by Mr Bulent Ayciek, an assembly worker from Victoria, against his employer, an electrical components company. Unlike Queensland, in Victoria a jury (rather than a judge) can decide the outcome of personal injury cases and, in this case, the jury found the Employer to be negligent and awarded damages to Mr Ayciek of $585,000.
However, the jury went on to find there was contributory negligence by Mr Aycicek, whereby he was partly responsible for one of the events which caused his injuries, and determined the damages paid to him should be significantly reduced by 38% to $336,770.
Mr Aycicek appealed against the finding of contributory negligence which related to an incident in 2005. In that incident, Mr Aycicek lifted a full crate of electrical components weighing approximately 62kg without assistance. As a result, he injured his back.
The Employer said Mr Aycicek was himself negligent because he breached the Employer’s policy on lifting weights that are greater than 20kg without assistance and that he ought to have known the crate was too heavy to lift without assistance The Employer said Mr Aycicek should have weighed the crate first or waited for someone to help him.
Mr Aycicek said there were trolleys at the premises (which would have made the job easier) but there were not enough of them and one was not available at the time he lifted the box. He said he saw people lifting crates alone, or as a team, all the time and he had never been told to lift the crate in a particular way. He had no way of knowing how much a crate weighed but said “… we have to do it. That’s...part of the job”.
The Employer alleged Mr Aycicek was given a document about manual handling in his induction. This document stated that as a “rough rule of thumb” workers should not lift unassisted weights greater than about 20kg, however this statement was buried in the middle of a seven line paragraph.
The Victorian Court of Appeal had the power to set aside the jury’s verdict if it was unreasonable or against the weight of the evidence. It observed that Mr Aycicek had the onus of proving negligence against the Employer for the claim in general but, for contributory negligence, the onus is reversed and the Employer has the onus of proving contributory negligence against the employee..
During cross-examination, Mr Aycicek agreed he had been “told” about the 20kg rule, but the Employer could only prove was he had been given the manual handling document during his induction. It was unreasonable for the jury to conclude that Mr Aycicek had not complied with a direction to only lift the crate with assistance. The jury could only reasonably conclude that Mr Aycicek was doing his job, just as he and many other colleagues had done before with no criticism or correction by the Employer.
This case illustrates that Employers who seek to criticise an injured person’s conduct by alleging contributory negligence have the responsibility of proving it. The Employer is required to present a clear and credible argument for contributory negligence, and must prove it by providing evidence and witnesses in support of the argument.
In summary, what at first glance may appear to be obvious negligent conduct by an employee can in fact be far more difficult to prove once the system of work carried out on a day-to-day basis is closely examined. Employers can protect themselves by recording the details of health and safety training provided to employees upon induction and throughout their term of employment.
Written by Cameron Seymour, Partner and Daniel Sullivan, Associate
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