An occupier who devises a safe system of work but fails to supervise its implementation may be liable in negligence where a worker routinely departs from the system without correction. A worker who fails to follow instructions may not be contributorily negligent where the incorrect technique became entrenched in the presence of the instructor without comment, such that the worker did not know and could not reasonably have known the technique was incorrect. Under s 151Z(2) of the Workers Compensation Act 1987 (NSW), the onus of proving that the plaintiff's employer was a joint tortfeasor lies on the defendant seeking the reduction.
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