Bourk v Power Serve P/L & Anor

(2008) 175 IR 310; [2008] QCA 225

Queensland Court of Appeal

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Interrogate

Catchwords

1. Statutes
2. › Breach of statutory duty
3. › Causation
4. › Absolute statutory obligation to ensure workplace safety
5. › Whether employee must prove hypothetical inspection system would have detected defect
6. › Whether causation established by proof of defective equipment causing injury
7. › Workplace Health and Safety Act 1995 (Qld), ss 22, 27, 28, 37
1. Employment Law
2. › Liability of employer for injury to employee
3. › Safe system of work
4. › Provision and maintenance of safety equipment
5. › Breach of statutory duty under Workplace Health and Safety Act 1995 (Qld), s 28(1)
6. › Whether employer's failure to maintain safety equipment caused employee's injury

Quick Take

Under s 28(1) of the Workplace Health and Safety Act 1995 (Qld), where an employer provides defective safety equipment that fails and causes injury, causation is established without the employee needing to prove that a hypothetical system of inspections would have detected the defect. The additional causation requirement applies only where the employer has established a system under s 27 and relies on it as a defence. The cases of McWilliams and Duyvelshaff, which require proof that the employee would have used safety equipment had it been provided, are distinguishable because they involved qualified duties to provide specific equipment, not an absolute duty to ensure safety.