Injured workers lose again

Posted by Johnston Withers, in News

Hugh Rischbeith of our Adelaide office commented that the recent decision of Boland v Saxon Energy Services Australia Pty Ltd raises several important points on industrial safety and workers compensation law in South Australia.

Background

In Boland v Saxon, two employees of Saxon Energy Services (Saxon) suffered serious crush injuries while working on a drill rig when an operator inadvertently pressed a touchscreen control extending a hydraulic arm. Both workers were trapped between the arm and a separate piece of plant.

The first suffered serious injuries to his right leg, the second a fractured left arm and injury to his coccyx, and both report ongoing psychological trauma and back pain. Both were subsequently made redundant as part of a general downturn in the industry and neither have been able to return to similar work.

Employers are responsible for eliminating or minimising workplace risks to health and safety as far as is practicable. A breach of that duty carries a maximum penalty of $1,500,000.

The ability of the hydraulic arm to be operated remotely via touchscreen exposed the workers to risk, and the employer’s failure to minimise that risk constituted a breach of their duty. The Industrial Court found that the risk was easily foreseeable and clearly carried very serious consequences. Saxon were ordered to pay $350,000, reduced to $210,000 in light of their expressed regret.

Implications for workers

This case highlights a gap in the law for the protection of injured workers.

Although Saxon Energy were convicted of a breach against s 32 of the Work Health and Safety Act 2012, and paid a fine of $210,000, none of that money went towards compensating the victims. The reason for that is the changes to workers compensation legislation.

When the Sentencing Act was passed in 1988, there was a robust worker’s compensation scheme in place which was intended to fully compensate injured workers. To avoid doubling up on payments to victims, the Act precludes the court from awarding compensation where the injury, loss or damage was caused by their employment and compensable under workers’ compensation law.

Unfortunately for these particular workers, the Return to Work Act has significantly reduced the amount of compensation the workers were entitled to. Both of them had no further entitlement to medical expenses as of 30 June 2016, and as neither are classed as “seriously injured workers” (those with a permanent impairment of 30% whole person), neither have an ongoing entitlement to income support. Saxon’s fine is paid into the State coffers, leaving two skilled workers out in the cold.

As automaton takes over our working world and removes human control from everything from cars to heavy factory plant, these sorts of industrial accidents are likely to occur more frequently. It is to be hoped that the law will catch up.