Everson DCJ found for the plaintiff who partially amputated his left ring and ‘little finger’ on 20/05/2009 whilst mowing the median strip of a roadway.
The circumstances: the plaintiff noticed a spring had detached from the mower and bent forward to pick it up. At the same time a car sounded its horn close by and the plaintiff’s right hip impacted the left hand side of the mower causing the mower to push to the left and over his left hand.
His Honour relied on the report of Mr McDougall:
 What does satisfy the above requirement is the failure of the defendant to insist that there be adequate separation between a worker mowing the median strip and adjacent traffic. In his report Mr McDougall notes that the traffic speed limit at the location where the incident occurred was 60 kilometres per hour and that the standard set out in the Manual of Uniform Traffic Control Devices required the placing of warning signs and the placing of cones or bollards along the kerb line. Sheridan Street is the major northerly thoroughfare in Cairns and there are several lanes either side of the median strip where the incident occurred including the start of a turning lane. In these circumstances Mr McDougall went further, stating in his evidence “a man mowing adjacent to a traffic flow at 60 kilometres an hour where he is less than a metre away from that traffic flow, I would say that’s an unacceptable risk”. In his report he stated that a lane closure was an appropriate response to the risk.
 Although framed as an action in both tort and breach of contract, the genesis of the plaintiff’s case against the defendant is in negligence. The first issue which arises is whether the defendant breached the duty of care it owed the plaintiff to provide him with a safe system of work. The manner of the plaintiff’s mowing of the median strip must have given rise to a foreseeable risk of injury to the plaintiff. In Wyong Shire Council v Shirt Mason J stated:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have…
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable”
 As the majority of the High Court observed in McLean v Tedman
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer..”
 The risk of the plaintiff being injured when working in such close proximity to a number of vehicles lawfully travelling at up to 60 kilometres per hour was foreseeable. This is presumably why he was provided with signs and witches hats and instructed on their correct use. In this regard it is worth noting the observations in McLean v Tedman that in such circumstances a foreseeable risk of injury can arise from the possibility of negligence on the part of a motorist.  The defendant breached its duty to the plaintiff in failing to ensure that appropriate signs and traffic control devices were used to provide a safe buffer between the immediate area where the plaintiff was mowing and the traffic in the vicinity. I accept the evidence of Mr McDougall that such a buffer should include a traffic lane.
 I am of the view that the sounding of the car horn, which I find occurred in the immediate vicinity of the plaintiff, caused the incident. The plaintiff’s evidence in this regard which, together with the Accident Investigation Report, shows he was reaching downwards and closer to the traffic approaching him from behind at the point where a turning lane began at the time the incident occurred. Had there been a safe buffer between the plaintiff and the adjacent traffic, I find that he would not have been startled, come into contact with the handle of the mower and injured himself.
Apart from special damages and interest, the plaintiff’s quantum was assessed modestly with $45,000.00 for General Damages and $5,000.00 for future loss of earning capacity.
Brisbane Barrister – David Cormack