Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296

The NSW Court of Appeal was called on to decide an appeal by Top Hut Banoon Pastoral Co Pty Ltd (Top Hut) after a judge in the District Court to New South Wales awarded Ms Walker $992,866.34 in damages arising from injuries Ms Walker sustained on premises occupied by Top Hut.

Top Hut admitted that it was liable for Ms Walker’s injuries, but also sought to argue that her employer, Shear Away should share liability. Top Hut also argued that the primary judge’s assessment of damages was too high and did not take into account medical evidence relied on at the hearing by Top Hut.

Top Hut’s appeal was rejected by the NSW Court of Appeal on all grounds.

Ms Walker was employed as a shearer’s cook by Shear Away. She was injured when she fell off a step when entering an accommodation hut on the premises. Ms Walker sued Top Hut as the occupier of the premises but chose not to sue her employer Shear Away. Top Hut brought a cross-claim against Shear Away and contended that, as Ms Walker’s employer, Shear Away had failed to take proper care for Ms Walker’s safety by not carrying out a sufficiently careful safety assessment of the premises.

In dismissing Top Hut’s appeal, the NSW Court of Appeal said that had the employer, Top Shear, performed a sufficient inspection of the accommodation, that inspection would not have revealed the defect anyway as there had been no prior problems with the accommodation and the accommodation itself was rarely used.

It is a well-accepted principle that an employer has a non-delegable duty of care to keep its employee safe. However, as pointed out in this case “an employer’s duty is not an absolute duty to keep an employee free from injury, but a duty of reasonable care.” In this case, the employer was found to have done all that was reasonable in the circumstances to keep Ms Walker safe, in so far as the accident giving rise to her injuries was concerned.

Top Hut’s appeal was not limited to the question of the employer’s negligence. It also challenged the decision of the primary judge as to the award of damages. Top Hut’s appeal failed and the original award of damages was upheld.

It is often the case that multiple parties may be responsible for a person’s injuries. If you have suffered an injury at work and it appears that multiple parties ought to be held responsible, you should seek legal advice. In this case, Ms Walker could have sued her employer also but, presumably for a number of reasons, she chose to sue Top Hut only.

If you are facing a similar decision, you should contact us for advice. We are experts in personal injury law and are happy to provide your initial consultation for free. If we think your claim has merit, we can act for you on a No Win, No Fee basis.