By Stuart Eustice, Partner, Holly White, Lawyer and Lidia Martinez Chavez, Law Graduate

In Atmis v Consolidated Property Services (Australia) Pty Ltd [2022] VCC 2056, the Victorian County Court considered whether an employer, Consolidated Property Services (Australia) Pty Ltd (CPS), breached its duty of care owed to an employee, (the Plaintiff) who, during the course of their employment as a cleaner, suffered shoulder injuries when lifting a bin liner weighing approximately 20 kilos.

The Plaintiff was successful in a claim against CPS in negligence and for breach of statutory duties pursuant to the Occupation Health and Safety Regulations 2007. CPS did not provide the Plaintiff training in how to assess the weight of items requiring manual lifting, resulting in the Court finding CPS failed to provide a safe system of work. The Court referred to Czatyrko v Edith Cowan University[1], emphasising employers owe a non-delegable duty of care to employees to take reasonable care to avoid exposing employees to unnecessary risks of injury.

Whilst the Court awarded the Plaintiff $230,000 in pain and suffering, interestingly this was reduced this by 10% for contributory negligence. The reasoning being that the Plaintiff failed to take steps to ensure his own safety.

The Court acknowledged that CPS had not implemented a safe system of work as to the appropriate manner on how to empty heavy bin liners however there remained an obligation on the Plaintiff to ensure he took steps to care for his own safety.

We note such an outcome is rarely seen in heavy lifting cases and worthy of application in future claims of similar factual scenario.

[1] (2005) 214 ALR 349, 353 [12].