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A foreseeable risk

Schmidt v S J Sanders Pty Ltd [2012] QDC
Irwin DCJ
22 June 2012

Background

The injured worker was employed as a truck driver when on 15 January 2008 at 3:00am his eight month old Volvo B Double truck broke down in wet weather. He exited the truck three times to investigate the problem but on the fourth time, his foot slipped off the top step and he fell to the ground sustaining a head injury, neck and lower back injuries and a psychological condition.

The Facts

The matter proceeded to trial on liability only as quantum had been agreed. The workers case was that he was exposed to a foreseeable risk of falling from the truck due to a defective step and therefore the employer needed to carry out risk assessments to identify the shortcomings of the (new) truck, mainly the rounded outside edge of the step, and that he should have been instructed how to alight from the truck (despite his 26 years' experience).

The employer's case was that proper plant and equipment was provided, and therefore is only required to give further instructions if upon reasonable inspection, it was aware of the defect. The employer submitted that it discharged its duty as the truck was a new one purchased eight months earlier, had taken consideration that approximately 60 drivers had driven this type of truck since 1999 with the same access system (ie, two top steps are concealed by the cabin door when closed) without incident and that the worker had never complained about the access. Further, there was no certainty as to why the worker fell.

Judgment

Irvin DCJ gave significant consideration to the experts' evidence. Whilst the employer's expert suggested that the access system was “…amongst the best that I have seen”, his honour preferred the view of the workers expert that the access step could be easily modified with non-slip material or bolting on aggressive traction which is a cheap, inexpensive response to the foreseeable risk. His honour further agreed there were other plausible explanations as to why the worker slipped, but preferred the worker's version.

The judge therefore found in the worker's favour ordering the agreed quantum of $225,000.

On Appeal

WorkCover appealed on the grounds such findings were not supported by the evidence, were contrary to expert evidence and not reasonably open on the evidence.

The Court of Appeal found in favour of the worker in that a system of instruction on how to get in and out of the truck could easily have been implemented and that the employer was negligent for not implementing one despite the foreseeable risk of falling.

As the date of injury was prior to 1 July 2010, a defence was not available under the WH&S Act. This civil right no longer applies for injuries post this date and the amendments to the WCRA 2003 should assist.

Importantly, the Court of Appeal overturned the trial judge's decision that the truck step should be modified. It concluded “An employer has an obligation to provide safe and proper plant and equipment” and “…that obligation is discharged where the employer purchases appropriate equipment from a reputable manufacturer or supplier and makes any inspection that a reasonable employer would.” Further, there is no obligation upon an employer to “…assess slippage capabilities of the step system of a prime mover purchased specifically for its recognised safety features.” An employer is only required to undertake an inspection which is reasonable to undertake in the circumstances.