You may have heard coaches say to their teams “keep doing the one percenters”. This phrase refers to each player focusing on doing the little things right to result in a significantly higher chance of success for the team as a whole. The concept is well known in the sporting word, but it can also be applied to business operations, particularly in relation to reducing risk.

Employers should look at the “one percenters” in their organisation and take time to anticipate and identify risks introduced by unusual variations to a set routine or work method. Lawyers call these variations “distinguishing factors”. These seemingly small or unintended variations can sometimes have monumental impact on a risk profile.

As an example, I recently saw a claim where a worker cut his own hand whilst using a machete for clearing vines and weeds. The employer did not expect the worker to use the machete for the task, but the tool was available and the worker made the decision to use it.

The injured worker had professed to have the skills and experience to use a machete. It seems reasonable to question how the employer could be liable for a self-inflicted (albeit accidental) injury. It is also tempting to submit the analogy that employers of office workers are not liable for injuries to workers who cut themselves with a kitchen knife on a lunch break.

However, on a closer examination of the facts of the claim, it can be seen that the employer could be liable for the unanticipated variation in procedure.

The one percenter (distinguishing factor) was the fact that, to allow the tool to be hung on the wall, the back edge of the machete was shaped like a hook. The presence of that hook meant that, as the worker swung the blade, the hook could catch on vines or vegetation and disturb the arc of the swing causing the worker to miss his target. That risk had not been anticipated, so it had not been identified and no warning (or training to ensure he aimed wide of his own hand in case his swing was interrupted) had been given to the worker.

Had the employer gone that extra bit further when training the worker to either exclude the use of the machete or highlight the potential danger of the hook, the employer would have had a stronger case to defend liability.

This case is a good reminder for employers to be thorough when considering the dangers to their employees and ascertain the risks of unanticipated variations to procedures. Dangers are not always obvious, and often sneak through when routine is even slightly disrupted.

“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.”
For the latest publications and updates, click on the link below.
Scroll to Top

Book a consultation