The Victorian Supreme Court has recently considered the extent of an employer’s duty of care to safeguard employees from the...Read More
The District Court of Queensland has recently considered a claim for damages arising from a farm incident, finding against the Plaintiff.
In late July 2019, the Plaintiff was assisting the Defendant in the maintenance of a hobby farm owned by the Defendant. The work being done involved the Defendant using a brushcutter to cut noxious regrowth, with the Plaintiff subsequently walking behind him to spray the cut stumps with herbicide.
On 27 July 2019, the Plaintiff was working with the Defendant in the manner described above, when the Plaintiff fell and broke his right leg, allegedly as a result of stepping backwards when the Defendant approached the Plaintiff with the brushcutter.
The Plaintiff commenced proceedings in September 2021.
At a pre-trial mention, deficiencies in respect of the Plaintiff’s pleadings were identified. As asserted by Rosengren J, the particulars of negligence were “not in fact particulars at all”, but rather, were “a generic pro forma list of alleged failures in the vaguest of terms without consideration of the facts and circumstances said to give rise to the Defendant’s breach”.
A direction was subsequently made by Rosengren J for the filing of a further pleading. However, some of the deficiencies remained in the amended pleadings. After the trial had commenced, it was stood down for counsel for the Plaintiff to adequately plead the particulars of negligence in a redrafted further amended statement of claim.
With respect to liability, the Plaintiff alleged that the Defendant had failed to: –
i. Establish a safe system of work, that enabled the Plaintiff to spray while maintaining a distance of fifteen (15) metres from the head of the brushcutter;
ii. Identify a path of travel for the Plaintiff to follow the Defendant through the area being sprayed;
iii. Instructed, supervised, or trained the Plaintiff:
a. How to move the hose attached to the herbicide receptacle through the area being sprayed;
b. To keep a distance of at least fifteen (15) metres from the head of the brushcutter;
c. How to spray the cut stumps within the time frame required, whilst remaining at least fifteen (15) metres from the brushcutter; and
d. As to the path of travel the Plaintiff should follow the Defendant;
iv. Provide appropriate plant, as it was difficult for the Plaintiff to operate the hose as it was attached a static receptacle; and
v. Undertake a risk assessment, which would have identified that it was necessary to maintain a distance of fifteen (15) metres between a person and the head of the brushcutter, and that the plant was not appropriate.
The Plaintiff further alleged that the Defendant had failed to take reasonable care when using the brushcutter and failed to keep proper lookout for the Plaintiff whilst manoeuvring with the brushcutter being operational.
The Defendant alleged that any duty of care, to the extent that it was actually owed, was complied with, as: –
i. A dynamic risk assessment was undertaken, leading to instructions to the Plaintiff and the system of work that was implemented;
ii. The system of work had been utilised twice in the fortnight preceding the subject accident without issue;
iii. The brushcutter was never brought in close proximity to the Plaintiff;
iv. The Plaintiff was provided appropriate time to complete the task in a safe manner;
v. The Plaintiff was provided with appropriate plant; and
vi. No further instructions, nor warnings, were required to be provided by the Defendant.
The Defendant further alleged contributory negligence against the Plaintiff
The court found in favour of the Defendant, opining that whilst the Plaintiff was owed a duty of care, this duty had not been breached.
The court relied on a number of conclusions in coming to its decision. Rosengren J opined that whilst a greater distance between the Plaintiff and the Defendant may have decreased the risk of injury, such a system of work would have “unduly impeded” the Plaintiff in effectively performing the spraying work. Her Honour considered the Plaintiff’s allegations in respect of the plant, namely the hose, to be irrelevant, as the hose did not in any way contribute to the fall. Rosengren J was unconvinced that a risk assessment would have identified the alleged deficiencies in the system of work, especially given the “impracticalities” associated with maintenance of a distance of fifteen (15) metres between the Plaintiff and the Defendant.
As to the actions of the Defendant in their operation of the brushcutter, her Honour asserted that she was not satisfied that the Defendant had either approached the Plaintiff with the operational brushcutter, nor moved unpredictability with the tool. In the view of the court, whilst the brushcutter posed a risk if it came too close to the Plaintiff, the risk was an obvious one and known to both parties; the Plaintiff “had the necessary experience to know how to avoid it and he did avoid it, by remaining a sufficient distance from the defendant while the brushcutter was being used.”
For these reasons, amongst others, Rosengren J concluded that the Defendant was not required to take any further steps to avoid the risk of injury to the Plaintiff. Whilst an assessment of damages was undertaken, it was of little consequence, given the Plaintiff had failed on liability.