Consider this scenario:

Bob the Builder employs Adam, a young apprentice. Bob directs Adam to use a chisel to clean out some concrete overpour. Bob takes care to provide suitable equipment (gloves, chisel and safety glasses) and instructs Adam to wear the gloves and safety glasses when chiselling out the concrete. Adam signs a Safe Work Method Statement to that effect.

What happens when Adam performs the task and is struck in the eye by a piece of concrete?  Has Bob breached his duty and has Adam contributed to his injury?

On the face of the limited information, it is easy to form the view that Bob took all reasonable steps and Adam might be responsible for his own misfortune if he failed to heed the instruction.

But what if we introduce some more detail?

Adam is working outside in the Brisbane summer. His head is cast down and the heat is making his glasses fog up and the perspiration is making the safety glasses slide down the bridge of his nose.  His gloves are ineffective at wiping the sweat from his brow and often knock his glasses askew when he wipes his forehead. As the lenses fog up, it is easier for Adam to see what he is doing when the glasses have slid down his nose a little.

In those circumstances, is Bob negligent and has Adam contributed to his injuries?

Would a risk assessment of performing the job in hot humid conditions identify further risks, causing Bob to take steps to ensure the safety glasses stayed flush against Adam’s face (perhaps secured by elastic) or instruct that under no circumstances was the chisel to be used if the glasses were not flush against Adam’s face, even for a moment?

Employers need to remember specific always trumps general, and a risk assessment of a general safeguard in a specific circumstance may identify peculiar risks that require further consideration. 

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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