WCRA: Skylarking & vicarious liability

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

Boddice J

In March 2014, the plaintiff sustained compression fractures to his spine when he fell backwards off a pallet jack during the course of his employment with the defendant. Relevantly, the plaintiff was riding the pallet jack like a scooter when another employee of the defendant approached from behind the plaintiff and pushed one of the tyres of the pallet jack with his foot, causing the plaintiff to fall.

By claim filed in August 2016, the plaintiff commenced proceedings for personal injuries allegedly sustained due to the defendant’s breach of duty. The defendant pleaded, inter alia, that the plaintiff was inappropriately using the pallet jack and that the defendant was not vicariously liable for the casual, spontaneous act. There was no dispute in relation to the occurrence of the incident or the injuries as a result of that incident and the issues for Boddice J were:

  • Whether the injuries were caused by the defendant’s breach of duty or breach of contract;
  • Whether the plaintiff was contributorily negligent;
  • The nature and extent of the injuries sustained; and
  • The quantum of damages

Credibility

After considering the evidence, Boddice J went on to consider the plaintiff’s credibility. His Honour was not satisfied that the plaintiff was a reliable witness due to the creation of false mowing invoices, the plaintiff’s significant understatement to his doctors of prior panic attacks, neck pains and headaches in the preceding twelve months and that he did not call his wife as a witness to give evidence as to the plaintiff’s difficulties. His Honour found that the failure to call that witness was not explained by their continued estrangement.

Liability

In respect of liability, his Honour did not accept that the plaintiff received no training or induction when commencing employment with the defendant. Boddice J stated:

[169] … I accept that training occurred some weeks after the plaintiff commenced employment with the defendant. I also accept the plaintiff received a form of Code of Conduct at that time which specified there was to be no horseplay or skylarking in the workplace.

[171] Whilst the plaintiff and Stuart gave evidence that the riding of pallet jacks like a scooter was condoned as was the use of other machinery in acts of horseplay, I do not accept their evidence that these events were a regular occurrence at the defendant’s Darra depot. Each of Woodhead, Kajewski and Hunt impressed me as individuals who took their duties as supervisors seriously. I accept their evidence that should such activities have occurred in their presence they would have taken steps to cease that practice and to speak to the individual worker.

[172] That does not, however, mean that pallet jacks were not ridden like scooters from time to time. I accept workers did on occasions ride the pallet jack like a scooter. Woodhead specifically accepted that he had given evidence in the Industrial Commission to the effect that he had observed such practices in the past at the Darra depot. Whilst he gave evidence that on those occasions he immediately took steps to speak to the individual worker, it is significant that he and the other supervisors all gave evidence that no general instruction was ever given that pallet jacks were not to be ridden in that manner.

[173] Having regard to all of the evidence, I am satisfied the practice of riding a pallet jack like a scooter was not something which was prohibited by the defendant. The plaintiff was never instructed not to do it. No worker was formally disciplined for doing it. There was no written instruction ever issued by the defendant to that effect nor was signage put in place. The lack of written instruction or signage is significant in the context of evidence of knowledge of such a practice at the depot by at least Woodhead, a person with supervisory responsibility in the workplace.

 

Boddice J found that mere instruction to individual employees was insufficient to ensure certain behaviours were not adopted by others. His Honour found that this, along with the defendant’s failure to establish and enforce a system of work which prohibited such behaviour, constituted a breach of duty. However, the plaintiff could not succeed in its claim for direct liability as there was no evidence that the plaintiff would have complied with such an instruction so as to avoid the incident and the injury.

As to whether the defendant was vicariously liable for its employee pushing the tyre of the pallet jack, his Honour stated:

[180] In the present case, it is significant that whilst kicking the tyne [sic] of the pallet jack could not be said to have been an act which was authorised by the defendant, the act occurred on the floor of the depot between fellow workers in the context of the pallet jack being transported from one section of the depot to another. The act of one fellow employee to push 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.

[181] To that extent it can properly be viewed as an act undertaken in the course of Starling’s employment. It was not an act completely devoid of any relationship to that employment. It could not be said to have been designed to deliberately harm the plaintiff or to unlawfully damage the defendant’s equipment. It could also not be said to be unjust or unfair to hold the defendant responsible for Starling’s actions.

[182] Having considered the context in which the incident occurred, the respective positions of the plaintiff and Starling, the workplace within which the incident occurred and its practices and procedures, I am satisfied Starling’s act, whilst unauthorised, is properly to be viewed as having occurred within the scope and course of his employment with the defendant. The defendant is properly to be held vicariously liable for that act and any consequent injuries sustained by the plaintiff.

 

Boddice J found no basis for contributory negligence holding that a reasonable person in the defendant’s position would have taken precautions to prevent the risk of injury from falls while operating the pallet jack.

Quantum

His Honour was satisfied that the plaintiff’s evidence as to his level of ongoing disability and impact on daily life was exaggerated. Particularly, surveillance video of the plaintiff at the shopping centre saw the plaintiff taking items from shelves, pushing a trolley with ease and removal of shopping bags into the boot of his motor vehicle.

Notwithstanding this, his Honour accepted that the plaintiff continued to suffer some ongoing pain and restriction as a consequence of the injuries. His Honour ordered judgement for the plaintiff in the sum of $791,514.71.

 

David Cormack – Brisbane Barrister & Mediator

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