Verbal warning not enough

This case demonstrates

• Verbal warning to employers is not sufficient action if there is a reasonable way to isolate or remove a risk.
• Contributory Negligence for failing to pay attention.

Background

The plaintiff was injured on 6 December 2005 on a construction site when he walked into the raised bucket of a stationary bobcat.

The bobcat was parked close to where he and other workers were preparing for a concrete slab to be poured. It was parked with its bucket raised because the hydraulic hose that controlled the tilting of the bucket had failed. The bobcat operator left the broken bobcat raised while he left the jobsite to obtain the part needed to fix the problem.

Prior to the accident, the injured worker was instructed by his supervisor to locate and retrieve some conduit pipe needed to pour the concrete slabs. He was warned by his employer to 'try to avoid...' the bobcat.

However, the plaintiff said he did not notice the raised bucket of the bobcat because his attention was on the ground. This led to the incident of him walking into the bobcat's raised bucket and injuring his left shoulder.

No one witnessed the incident; however the injured worker did report the incident to his employer and saw a doctor the same day.

The injured worker claimed the incident caused him to suffer great pain and discomfort, and reduced his capacity to work, and pursue physical recreations. He also claimed he became clinically depressed as a result of the accident.

Liability was denied in this matter in pre-proceedings and went to trial. Surveillance footage of the plaintiff playing touch football on 9 April 2007 without any obvious limitations or discomfort was presented to the Court to counter claims made by the Plaintiff that he could no longer run or play football. The injured worker admitted this was a lie.

The Court also found the injured worker gave different accounts of the accident, which differs from the version recorded by Doctor Gillett who saw the plaintiff for the purpose of a medico-legal report on 26 September 2006.

Judgement

The employer was found liable in the matter despite verbally warning the plaintiff to try to avoid the bobcat.

The Court found that the employer should have taken appropriate means to obviate the risk as the stationary bobcat posed a real risk because its bucket was raised and it was parked close to the vicinity where men were working. The supervisor should have put a barricade around the bobcat to isolate the area.

The Court believed the task given to the plaintiff to find the conduit required him to focus his attention on the ground whilst walking in the vicinity of the bobcat. This carried a real risk of injury despite the warning to avoid the area from his supervisor. However, the Court held the plaintiff to be 20 per cent contributory negligent for failing to pay sufficient attention to his own safety when moving around the construction site.

Other information

Court: Supreme Court of Queensland
Delivered on: 28 April 2010