The High Court of Australia has refused to allow an appeal for the Landmark Roofing Pty Ltd v SafeWork NSW decision of the NSW Court of Criminal Appeal, where claims that an employer could not be held liable for the deliberate disobedience and failures of a supervisor resulting in the death of a worker were rejected.
The apprentice tragically lost their life after falling six metres through a skylight whilst working unsecured on a roof, despite their supervisor being directed that same morning to ensure all workers were properly secured when undertaking such work.
At trial, the employer contended that the incident occurred due to the deliberate disregard of the supervisor to follow safety procedures and, as a result, that vicarious liability should not apply in these circumstances as the employer had no way of foreseeing the failure of the supervisor to comply with a health and safety direction.
The Court rejected this on the basis that s244 of the Work Health and Safety Act 2011 (NSW) renders employers liable for the action and inaction of subordinates when acting within the actual or apparent scope of their employment duties, even where the failure of the employee was not foreseeable. This was upheld in the Court of Criminal Appeal.
The employer was subsequently fined $400,000, and attempts to appeal were unsuccessful.
This case is a terrifying example of how dangerous workplace incidents can be and that an employer can be held vicariously liable for the actions of their employees even where they’ve failed to follow a direction.
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