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Liability Update for Employers

Posted by Mark Williams on 27 March 2018

Employer found liable after employee falls from pallet jack he was riding as a scooter

Cincovic v Blenner's Transport Pty Ltd [2017] QSC 320

A truck driver has successfully claimed damages from his employer, Blenner's Transport, after sustaining personal injuries at work when a pallet jack he was riding as a scooter was kicked by a fellow worker, causing the truck driver to lose balance and fall on the concrete floor.

The incident

On 30 March 2014, the Plaintiff sustained compression fractures to his spine when he fell backwards off a pallet jack at the Defendant's depot at Darra, southwest of Brisbane.  At the time of the incident, the Plaintiff was employed by the Defendant as a truck driver.

The incident, which was captured on CCTV, occurred when the Plaintiff was transporting a pallet jack through the depot back to his truck.  In doing so, he chose to ride the pallet jack like a scooter using one leg to push it several times before putting a leg on each tyne and coasting for a distance on the pallet jack towards the location of his truck.

As the Plaintiff was riding the pallet jack, another employee, Starling, ran up behind the Plaintiff and pushed one of the tynes of the pallet jack with his foot.  This impact caused the Plaintiff to topple backwards off the pallet jack and strike his head and back on the concrete floor.

The Plaintiff claimed damages for his injuries, alleging they were caused by the Defendant's negligence and breach of contract, either directly through its own breaches or through its servant Starling for whose acts it was vicariously liable.

The Defendant denied these allegations, pleading that the Plaintiff was using the pallet jack contrary to the manner in which he had been instructed, trained and authorised to do so, and was engaged in horseplay.  Further, the Defendant argued that it was also not vicariously liable for the casual, spontaneous act of Starling in kicking the pallet jack, and that the Plaintiff was in fact responsible for his own injuries.

Supreme Court's Decision

The Court accepted the Plaintiff's evidence as to the circumstances of the incident, particularly that he was not skylarking with Starling at the time of the incident.  Despite this, the Court did not find the Plaintiff to be a reliable witness, finding that he was prone to exaggeration, and displayed a worrying willingness to tailor his evidence.  Indeed, the Plaintiff significantly understated his relevant pathological history to the various medical specialists he attended upon, and even created false invoices to support the provision of mowing services an action which the Court lamented as reprehensible conduct.

In addressing the dispute as to the work practices adopted at the Defendant's Darra depot, and the Defendant's knowledge of these practices, the Court held that the practice of riding a pallet jack like a scooter was not something which was prohibited by the Defendant, and the Plaintiff was never instructed not to do it, nor was signage put in place to that effect.

Woodhead was the Darra depot manager at the time of incident, tasked with overseeing the whole operation of the depot.  In his testimony, Woodhead conceded that he had occasionally seen employees at the depot riding a pallet jack like a scooter, at which point he would stop the worker and give them a verbal warning not to do it, and just to push or pull the pallet jack along.

Consequently, the Court found that the Defendant was aware of the dangerous and high-risk practice, and had a duty of care to the Plaintiff to take steps generally to prohibit it.  Merely instructing individual workers to stop was insufficient to ensure the practice was not adopted by others.  The Court found that a reasonable person in the position of the Defendant would have taken steps to formally instruct workers not to engage in the practice, and to establish a system of work which prohibited the practice.

With respect to liability, the Court did not find the Defendant directly liable for the incident and the consequent injuries sustained, as the Plaintiff did not establish that he would have complied with any formal instruction not to ride the pallet jack like a scooter.

The Court reached a different conclusion when considering the Defendant's vicarious liability for the acts of Starling in kicking the pallet jack.  The Court stipulated that vicarious liability can apply to harm caused by an employee's unauthorised acts, including intentional wrongdoing, provided there is a connection between the wrongdoer's wrongful act and the employment.

In this regard, the Court held that the act of Starling in pushing (by kicking) the pallet jack on which the Plaintiff was travelling could properly be seen as an action to assist in the transportation of the pallet jack to its desired location, and to that extent it could properly be viewed as an act undertaken in the course of Starling's employment.  Accordingly, the Court held that the Defendant was vicariously liable for that act, and any consequent injuries suffered by the Plaintiff.  No finding of contributory negligence was made against the Plaintiff.

Turning to quantum, the Court's rejection of the Plaintiff as a reliable witness extended to its assessment of the Plaintiff's evidence as to his level of ongoing disability and impact on his day to day activities, finding it to be exaggerated.  The Court held that the Plaintiff's pain and disability was in itself not of a sufficient magnitude to render the Plaintiff commercially unemployable, but accepted that as a consequence of the injuries sustained in the incident, the Plaintiff had developed a major depressive disorder, which exacerbated his physical disabilities and did in fact render him commercially unemployable.

As a result, the Plaintiff was awarded a substantial sum for economic loss, with total damages amounting to $791,514.71, plus costs.

Significance of the Case

This case is a reminder for employers to remain vigilant when it comes to safety in the workplace, particularly in regard to activities and practices which put employees at risk of injury.  Employers must be cognisant of the fact that they owe a duty of care to their employees to protect them from foreseeable harm.  This protection involves the requirement for employers to establish a system of work which obviates, as far as possible, the risk of injury to their employees.

This case also highlights the need for employers to remain aware that in certain circumstances they may be held vicariously liable for harm caused by the unauthorised actions of their employees.  This reiterates the need for employees to undergo regular training and instruction in relation to their duties, responsibilities and expected standards of behaviour at work, and for managers to ensure they seek always to foster a working environment which has an overarching focus on sensible and professional conduct.

Finally, this case is a stark illustration of the fact that even in circumstances where the Court finds the Plaintiff to be an unreliable witness who has engaged in reprehensible conduct, a Court's interpretation of all the evidence led at trial can still result in a Plaintiff with limited credibility being awarded significant damages.

For more information on this article, or to discuss liability issues further, contact Mark Williams or Alex Canavan on (07) 3243 0000.

Mark WilliamsAuthor: Mark Williams
About: Mark is a partner in the firm's Dispute Resolution & Litigation Group.
Tags: Worker's Compensation Liability kingandcompany Litigation Personal Injuries Personal Injuries Proceedings Act

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