An employer that instructed workers on how to adjust the seat in their vehicles, but failed to warn them of the safety risks if it was not done properly, has been ordered to pay an injured worker more than $1 million in damages.
The transport company breached its duty of care to the bus driver who was injured because he set his seat suspension on soft for comfort and it "bottomed out" on an uneven road, Western Australian District Court Judge Wendy Gillan found.
The worker sustained injuries to his neck and back in June 2015 driving the bus over a corrugated road that caused his seat to violently bounce up and down. He sued Swan Transit Services for damages, claiming it negligently allowed him to drive the bus in the wrong suspension setting so that when the vehicle was jolted the seat impacted on the hard surface underneath.
He told the Court he had his seat adjusted on the softest setting because he found it to be the most comfortable. He said Swan Transit Services instructed him on how to adjust the seat but failed to tell him about the risk of injury from the seat bottoming out if there was no resistance in the suspension.
Judge Gillan heard that the company’s operations manager was aware there needed to be some resistance in the seat setting as a precautionary measure to prevent workers from being injured.
Because he was aware of this risk, the employer had a duty to ensure workers were warned about it, she said. But Swan Transit Services did not have anything in place to ensure this information was delivered.
The "obvious and easy" thing Swan Transit Services could have done was ensure drivers were informed of the risk during induction, Judge Gillan said. "That information given on induction could have been affirmed by the [employer] by written material, including by a notice in each bus and in the driver's manual and affirmed on occasions when the drivers were assessed, which occurred a few times a year," she added.
Judge Gillan found the expert evidence was consistent that "the distance over which the seat would travel depended on the height to which it was set, the weight of the driver and the amount of resistance in the suspension setting".
This meant appropriate suspension settings were different for individual workers, but they "could easily have been told of the risk that if the suspension setting was too soft for their height and weight, then when their seat was jolted they might come to an abrupt stop on the hard floor of the bus".
Judge Gillan was satisfied that had the worker been told about the risk of injury associated with suspension settings, and that it would put his health at risk, he would not have put his seat on the softest setting even if it was more comfortable.
She awarded him $1,073,255 in damages, including $705,388 in past and future loss of earnings.
This is the second, heavily litigated, case we have seen recently arising from injuries from incorrectly adjusted seats for long term drivers such as delivery drivers, truck drivers and bus drivers. While it is essential that any employers that engage drivers ensure that seats are appropriate for the vehicle and use, are well maintained, and drivers are instructed on safe and correct use, this case also highlights the importance of correct induction and directions for use for any equipment.If you have any questions about WH&S issues, or need an audit or inspection to ensure compliance, contact the WR team on (08) 8291 2000 or at firstname.lastname@example.org.