Active disregard for safety protocols and worker's comp

Question

Alice owns a manufacturing company. To keep her workers safe, she does a weekly safety reminder every Monday morning, rehashing different issues that could lead to accidents. Assume that this Monday the topic was "Hydraulic Injection Injuries" (HII / ICD10 T70.4 / ICD11 NF04.3). One of the rules repeated is never to touch the hydraulic hoses while under pressure to prevent a damaged hose from injecting its oil into the worker.

Tuesday rolls around, and a machine with hydraulics is put down for maintenance after it breaks close to the end of the shift. A huge warning sign is attached to it, marking it as potentially dangerous.

Wednesday rolls around and Bob, old as stone, knows it all, (and never listens on the Monday refreshers), goes to fix the machine. He ignores the handbook that tells to depressure the machine and instead goes to look for leaks, running his hand down a filthy, greasy line, and promptly caught a small Hydraulic Injection Injury while "detecting leaks". He doesn't bother to alert other staff immediately but manages to swap the hose, and put the machine back into working order before clocking out and leaving for the hospital - still not telling anyone.

When Bob ends up in the hospital, he tells Doctor Charly that he did "prick himself at work with some rusty crud" in the hand. Doctor Charly is either not aware of HII or lacks suspicion to treat it correctly. Either way, the treatment for sepsis prevents Bob's death, but the arm has to be amputated.

Clearly, we have a workplace injury of some sort, so before anything, Alice's insurance and Workers' Comp should pay for the bills. But on the other hand, there are half a dozen violations of the workplace safety protocol by Bob. Those violations lead to the injury despite schooling, and established protocols for maintenance, as Bob just ignored those and did things as he always does.

Is Bob's active ignorance and disregard of the safety protocol enough to lessen the amount Alice's Workers' Comp needs to pay?

If it matters, assume Alice and her managers do not know Bob ignores safety protocols on the regular, and no track record of any reported violations from any coworker exists, neither formally nor informally.

Answer 1

united-states

Is Bob's active ignorance and disregard of the safety protocol enough to lessen the amount Alice's Workers' Comp needs to pay?

No.

Part of the grand bargain that motivated the passage of Worker's Compensation laws (the first of which was passed in 1893 and most of which were passed in the early 1900s) was to remove the defense of contributory fault, and the fault of fellow workers, as defenses to employer liability, in exchange for removing employer exposure to liability for non-economic damages or punitive damages, and to eliminate litigation costs for all parties, so that all available funds would go towards providing remedies rather than fighting over liability for workplace injuries in the courts.

If Alice wants to limit her company's liability for injuries suffered by idiot workers like Bob, she needs to fire him, or at least banish him from places where he can get hurt, as soon as she learns of this fact. If she didn't know this was a problem for Bob, a long time employee, this is a failure of Alice and her management team to pay attention to what is going on in their company.

Also, in the meantime, the worker's compensation insurance company is paying for Bob's injuries, not Alice's company. A higher than average rate of claims against the company's worker's compensation insurance policy will drive up the company's insurance premium, but an occasional on the job injury is just par for the course in a large business like Alice's. The rates paid by Alice's company are not likely to be affected by the particular circumstances of the claims that arise, although the insurance company might sometimes prospectively require the company to adopt new practices if it wants to lower its rates again, if the same kind of preventable injury recurs again and again at the company.

Worker's compensation generally does not cover workers who aren't on the job, even if they come into the workplace in places that aren't their job, and hurt themselves off the job, even though they are at somebody else in the company's workplace (i.e. when the employee isn't working, and the employer is actively and sincerely trying to keep that employee from being at the part of workplace where the injury occurs).

Bob's actions contrary to the company's management's instructions, in violation of company rules, and despite every effort on the part of the company's management to impose safety rules, is probably a defense for the company's to efforts to fine the company for an Occupational Safety and Health Administration (OSHA) violation in connection with the injury, however.

Answer 2

united-kingdom

Bob has committed a criminal offence under the Health and Safety at Work etc. Act 1974 by failing to

take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work

This may be grounds for Alice's insurer to refuse or reduce payout due to contributory negligence.

Answer 3

australia

No

Worker’s compensation is strict liability- if a worker is injured in the course of their employment (as Bob clearly was), then the employer is liable and the state Worker’s Compensation scheme will respond.

Breach of Work Health and Safety law

A Person Controlling a Business or Undertaking (PCBU) has a non-delegable duty to take all reasonable steps to ensure the health and safety of workers. This includes the provision and maintenance of plant and equipment, training, consultation and supervision.

This duty may be held by more than one person: if Bob is employed by a labour hire company who supplies him to a mechanic company to maintain plant that is owned by a hire company who hires that plant to a drainer who subcontracts to a plumber who contracts with a builder, then the labour hire, mechanic, hire company, drainer, plumber and builder are all responsible for Bob’s safety although only his employer is liable for his worker’s comp.

Bob also has a duty to take reasonable care of his own safety but, even if he fails to do so, this does not affect his entitlement to worker’s compensation nor reduce the liability of any one else.

The courts have held on numerous occasions that the duty of a PCBU to take reasonable care includes making provision for workers who will disobey instructions, fail to follow safety protocols, and generally fuck up.

Bob’s employer is almost certainly in a position where they could be successfully prosecuted because the defective machine was not adequately secured, Bob was permitted to work on it without being qualified (possibly, that’s unclear), in an unsafe manner, without adequate supervision. The system of work failed to detect that a worker had been injured and failed to provide adequate first aid. This is because Bob’s employer is responsible for what the workers under their control and direction do - including Bob. Bob’s failures are their failures.