An employer who is warned by an employee of the danger of an unbenched excavation face and fails to ensure benching or battering before permitting work in the vicinity breaches its duty to provide a safe place of work. A principal contractor and site manager who fail to comply with their own site safety plan regarding excavation safety similarly breach their duty of care to workers on site. A worker who takes a calculated risk by briefly entering a known danger zone to retrieve a tool necessary for ongoing work, in circumstances where the employer has failed to make the workplace safe, may not be found contributorily negligent where the exposure was momentary and the worker had repeatedly raised safety concerns.
The full text is available to signed-in members, including the 4 later cases that cite this judgment.