Davies v Whitehaven Coal Mining Limited

[2020] NSWCA 219

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Employer's duty of care
3. › Non-delegable duty to avoid unnecessary risks of injury
4. › Modification of plant and equipment
5. › Whether modification created unnecessary risk where none previously existed
6. › Whether risk assessment carried out before modification
7. › Whether existing safeguards adequate for new task created by modification
1. Torts
2. › Contributory negligence
3. › Employment context
4. › Whether mere failure to avoid incident establishes carelessness
5. › Whether employer established that employee failed to take reasonable care
6. › Whether previous incident-free performance of task indicates carelessness on occasion of injury

Quick Take

Practitioners acting for employers should note that modifying plant or equipment in a way that creates a new risk of injury, without conducting any risk assessment, may constitute a breach of the employer's duty of care even if existing safety features are present on the equipment.