I have written many times over the years that documentary evidence can trump witness evidence, especially when a witness gives evidence of what "usually happens” or “would have" happened instead of what actually happened.
Employers often say to me "We can't have a written procedure for every single task in the workshop".
Judges understand that not every single task undertaken in a workshop will have a documented safe work procedure. However, an employer’s duty to take reasonable steps to provide a safe system of work, extends not only to the core operations of a business, but any activity undertaken by its workers in the course of their employment, even if the activity is considered a "one–off".
To illustrate the point, we recently advised an employer in a claim where one of their workers suffered a finger de-gloving injury handling pieces of steel. The worker's hand became caught in a pinch point between two heavy pieces of steel.
Although the exact task undertaken by the worker was somewhat out of the ordinary, the nature of the employer's business required workers to manually handle heavy steel and deconstruct/reassemble steel framework.
A brief description of the "one–off" task was performed and communicated to the worker. A more detailed walk-through of the task would have identified the weight of the steel lifted, the need for a two-person lift, the pinch point, and the need to enforce the use of protective gloves. Unfortunately, a risk assessment was not formalised, specific instructions were not provided and an injury ensued.
It is true the job could have been performed 99 times out of 100 without injury. It is also true that if injury is not suffered, a damages claim cannot be brought. However, on an occasion when an injury is suffered, and a damages claim results, it will be difficult to defend that claim in the absence of good evidence (preferably documentary) of a risk assessment identifying risks and instructions given to develop a safe system of work, including appropriate protective equipment, to minimise the risk of injury. The risk assessment could be as simple as a general checklist that could be used across various tasks.
Employers should not regard the documentary evidence so much as assisting if an accident occurs, but as helpful in identifying and reducing the risk of an accident occurring in the first place.
The more unique the one-off task, the higher the need for active supervision to control the known hazards and to be on hand when unforeseen hazards start to emerge.
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