S J Sanders Pty Ltd v Schmidt [2012] QCA 358

I refer to my earlier post by way of background. The Court of Appeal dismissed the employer’s in relation to the finding of negligence based on failing to undertake a risk assessment and consequently, train and instruct the truck driver on how to exit the cabin of the truck. The employer’s second appeal point in relation to the principle in Davie v New Merton Board Mills Ltd [1959] AC 604 was allowed.

Gotterson JA:

[3] I wish to add that in relation to the issue considered at paragraphs [37]-[42] thereof, this appeal affords the opportunity for this Court to affirm the application in Queensland of the statement of principle by Lord Reid in Davie v New Merton Board Mills Ltd1 to which his Honour referred at paragraph [37] of his reasons and which has been adopted by the Court of Appeal of New South Wales in Dib Group Pty Ltd Trading as Hill & Co v Cole2 and applied by Chesterman J, as his Honour then was, in the Supreme Court of Queensland in Bourk v Power & Serve Pty Ltd

& Ors.3

 

Boddice J:

 

[29] An employer’s duty of care requires that it establish, maintain and enforce a safe system of work.7 That obligation requires the undertaking of appropriate risk assessments, the devising of a proper method, training in its use, instruction to use that method, and the taking of reasonable steps to ensure its implementation.8 It includes the giving of such instructions, and the supervision of their enforcement, to experienced workers, having regard to the fact that an experienced worker may inadvertently or negligently injure themselves.9

 

[30]    The respondent’s method of exiting the prime mover was found to be inappropriate as it resulted in the respondent losing one of the three points of contact.10 The risk of injury from falling meant that the only safe means of exiting the vehicle was to turn his body whilst inside the vehicle before exiting in what was referred to as

a true backwards descent.

 

[31] The respondent gave evidence that he had adopted the same method of access to, and egress from, the prime mover since his employment. He also gave evidence that he had not received any instructions as to a safe method of exiting that vehicle.

 

[32] The director of the appellant gave evidence that he had not personally instructed the respondent on how to access or exit the cabin of the prime mover, and was unaware of any other person doing so on behalf of the appellant. He also gave evidence there was, at the relevant time, no documented training policy specifically dealing with such instruction, and he did not believe there was any formal induction system in place at that time.

 

[33] Expert evidence was given that, had the appellant undertaken a risk assessment of the means adopted by its employees of accessing and exiting its prime movers, it would have become aware of shortcomings in its system, and of the fact the plaintiff was adopting an inappropriate way of exiting the prime mover.

 

[34] In finding that the appellant failed to implement and maintain a safe system of work, in that it failed to instruct the plaintiff as to the safe method of accessing and exiting the prime mover, and failed to ensure compliance with that method, the trial judge accepted the evidence of the respondent, and of the appellant, as to there being no system of training or instruction of truck drivers as to the safe method of exiting the cabin of the appellant’s prime movers. The trial judge also accepted the opinions expressed by the expert witnesses called at trial. There was ample evidence to support the trial judge’s finding in this respect.

 

[35] Further, there was ample evidence to support the trial judge’s finding that such a system of instruction could easily have been implemented, and that it was negligent and in breach of the appellant’s duty of care not to implement such a system of instruction. There was evidence that such a system existed elsewhere in the industry, including evidence from one of the experts that he had, in his earlier employment, undertaken such instruction with truck drivers under his control.

 

[36] The trial judge’s conclusions as to the first finding of negligence were in accord with the evidence accepted at trial. This ground of appeal fails.

 

The step

 

[37]      An employer has an obligation to provide safe and proper plant and equipment.

However, that obligation is discharged where the employer purchases appropriate equipment from a reputable manufacturer or supplier and makes any inspection which a reasonable employer would make.11

 

[38] The trial judge’s finding of negligence on this ground depended on a finding that the step, as designed, was defective, and that the appellant had an obligation to inspect the plant and equipment provided for use by its employees.

 

[39] However, the respondent’s case at trial was not that the design of the step was defective. Instead, it was that the ad hoc system of accessing and exiting the cabin of the prime movers adopted by the appellant’s employees meant there was a risk that an employee would exit the cabin in an unsafe manner, which could result in the employee’s foot being placed in the area of the smooth outer edge of the tread, thereby increasing the risk of a fall. Expert evidence given at trial was that a boot placed at a particular angle on this outer edge may slip.

 

[40] The evidence accepted at trial was that the prime mover had one of the safest systems  of  design  in  the  industry.   Further,  the  appellant  had  never  received a complaint from its extensive workforce of truck drivers (including the plaintiff) as to any slip or fall from using these steps.

 

[41] Against that background, there was no basis for the trial judge to find that the obligation imposed on the appellant included a requirement for it to assess the slippage capabilities of the step system of a prime mover purchased specifically for its recognised safety features. Such a requirement involved undertaking an inspection beyond that which was reasonable for an employer to undertake in the circumstances.

 

[42] The appellant has established that the second finding of negligence was contrary to the evidence.  It ought to be set aside.

 

1.          [1959] AC 604 at 645-6.

2.          [2009] NSWCA 210 per Basten JA (Beazley and McCol JJA concurring) at [32].

3.          [2008] QSC 29 at [42].

7.          McLean v Tedman (1984) 155 CLR 306 at 313.

8.          Reck v Queensland Rail [2005] QCA 228 at [16].

9.          Bus v Sydney County Council (1989) 167 CLR 78 at 90.

10.        AB 434 at [115].

11.        Davie v New Merton Board Mills Ltd [1959] AC 604 at 646.

 

Brisbane Barrister – David Cormack

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