Best Bar Pty Ltd v Warn

[2019] WASCA 15

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Employer's duty of care
4. › Safe system of work
5. › Obligation to establish, maintain and enforce safe system
6. › Whether employer breached duty by failing to enforce standard operating procedure when aware employee using non-standard method
7. › Whether risk of back injury from manual lifting reasonably foreseeable
1. Tort
2. › Negligence
3. › Breach of duty
4. › Reasonable foreseeability of risk of injury
5. › Distinction between foreseeability and likelihood of risk
6. › Whether expert evidence required to establish foreseeability of back injury from manual lifting
1. Appeal
2. › Standard of appellate review
3. › Appeal from finding of negligence
4. › Whether error by trial judge affected outcome
5. › One ground of appeal made out but not affecting result

Quick Take

An employer who is aware that employees are using a non-standard and less safe method of operating machinery, when a safe standard operating procedure exists, breaches its duty of care by failing to instruct employees to use the safe method and to enforce compliance. Expert evidence is not required to establish that manual lifting of 12-20 kg loads on 13-19 occasions gives rise to a reasonably foreseeable risk of back injury. An employee's subjective belief that they were adequately trained does not answer the objective question of whether the employer breached its duty.