Case note: Cincovic v Blenner’s Transport Pty Ltd [2017] QSC 320
A recent decision of the Supreme Court of Queensland serves as a warning to employers with mobile equipment such as pallet jacks to instruct workers appropriately and in a variety of ways (e.g. with policies, signage, direct instructions).
The Facts
In March 2014, the Plaintiff suffered compression fractures to his spine following a fall from a pallet jack at the Defendant’s depot at Darra, Queensland. The Plaintiff was employed by the Defendant as a truck driver.
The incident was captured on CCTV. The Plaintiff was riding the pallet jack like a scooter, using one leg to push it several times and then placing a leg on each tyne as the pallet jack moved forward towards his truck. Another employee (Starling) approached the Plaintiff from behind, ran towards him, and pushed one of the tynes of the pallet jack with his foot. The Plaintiff fell backwards and hit his head and back on the concrete floor.
The Plaintiff was provided with training, including a Code of Conduct which specified that there was to be no horseplay or skylarking in the workplace. The Court accepted that workers did, on occasion, ride the pallet jack like a scooter.
The Issues
In relation to liability, the issues in dispute included:
- whether the Plaintiff’s injuries arose from the Defendant’s breach of duty of care or breach of contract;
- whether the Defendant was vicariously liable for the acts of Starling, who pushed the tyne with his foot;
- if the Plaintiff was contributorily negligent.
The Judgment
Justice Boddice held that the Defendant did provide certain training to the Plaintiff but failed to instruct workers not to ride the pallet jack like a scooter or provide any signage to that effect. However, the Plaintiff failed to establish that the Defendant was directly liable for his injuries. There was no evidence from the Plaintiff that he would have complied with an instruction from the Defendant (not to ride the pallet jack like a scooter).
However, the Defendant was found vicariously liable for the acts of Starling. It was the Defendant’s case that it should not be liable for the spontaneous act of Starling kicking the tyne. It was put to the Plaintiff that he was racing Starling prior to the incident. The Plaintiff denied this. The Court was satisfied that the Plaintiff was not skylarking with Starling at the time.
In finding the Defendant vicariously liable, the Court noted that while the acts of Starling were unauthorised:
- Starling’s actions were in the course of his employment, 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;
- Starling’s actions were not designed to deliberately harm the Plaintiff or damage the Defendant’s equipment;
- it would not be unjust or unfair to hold the Defendant responsible for Starling’s actions;
- the act of pushing the pallet jack could be seen as one taken to move the pallet jack to its desired location.
The Court was not satisfied that there was any basis for a finding of contributory negligence on the part of the Plaintiff.
The Plaintiff succeeded on liability and was awarded damages of $874,669.
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