A man who suffered personal injuries to his shoulder after falling off a ladder whilst pruning an apple tree was unsuccessful in his claim of negligence against an owner of agricultural property and his employer after he was found to be the ‘author of his own misfortune’.
- Whether the Defendants breached their duty of care to the Plaintiff by failing to provide the Plaintiff with ‘proper’ work equipment and by failing to warn the Plaintiff of the risks associated with pruning fruit trees.
- Whether the technique adopted by the Plaintiff to cut and prune apple trees was an obvious risk.
The Plaintiff was employed as a fruit and nut picker for Pak Farm (since deregistered) and had been working on agricultural property owned and occupied by Eden Park Fruits Pty Ltd (First Defendant).
On 20 January 2016, the Plaintiff was pruning an apple tree on the First Defendant’s property, using a bow ladder and a lopper tool. The Plaintiff was standing on the top and second from the top rung of the bow ladder, using the lopper tool to reach for and prune high branches of an apple tree, at which time he fell from the ladder, at a distance of approximately 2.5 metres to the ground, causing harm to the Plaintiff.
The Plaintiff alleged that the First Defendant and the Workers Compensation Nominal Insurer (Second Defendant) owed a duty of care to him and that both Defendants had breached such duty. The Plaintiff alleged that the First Defendant breached its duty by failing to provide the Plaintiff with suitable equipment to be able to reach and prune fruits safely, among other things. The Plaintiff alleged the Second Defendant breached such duty by failing to inform the Plaintiff of the risks associated with such work, among other things. The Plaintiff further alleged that his limited grasp of English and formal education precluded him from knowing of the risks associated with standing on top of a ladder, and contended that he should have been formally instructed of the risks associated with ladder climbing and pruning.
The First Defendant did not dispute that it was the occupier of the property, but denied it owed a duty to the Plaintiff. The Second Defendant did not dispute that it employed the Plaintiff and that it owed the Plaintiff a duty of care. Both Defendants denied they were negligent as alleged or at all, and both argued that the Plaintiff’s injuries were contributed to by his own actions of standing on the top and second top rungs of the ladder.
The decision at trial
The Court ultimately found that the First and Second Defendants were not liable for the incident that caused the Plaintiff’s injuries, and found that the Plaintiff was the ‘author of his own misfortune’ for the following reasons:
- The Plaintiff had previously pruned 444 apple trees without incident – there was also supporting evidence that all pruning could be done from the ground, without the need to step on the top two rungs of the ladder.
- The Plaintiff had given three inconsistent accounts of how he climbed and fell off the ladder – he had either climbed on the top two steps of the ladder and/or on a tree branch. However, each account demonstrated that the Plaintiff had failed to take precautions and that his actions were ‘foolish’.
- Even if the Court accepted the Plaintiff’s evidence, it was so obviously unnecessary and dangerous that it was not reasonably foreseeable that the Defendants were required to give specific instruction to the climbing of the ladder.
- While the Plaintiff was not a skilled workman, pruning is not skilled work. He was experienced in this type of repetitive work. The First Defendant could not reasonably foresee that he would fall, because it was entitled to assume that he would identify any risk of falling and take measures to prevent that risk from arising if he did.
- The risk of falling after climbing to the top of the ladder was blatantly an obvious risk. A reasonable person in the Plaintiff’s position would have taken the precaution of not going further than the second step of the ladder. Therefore, it did not matter that the Plaintiff had not been advised about the risks – his limited grasp of English and lack of formal education also did not matter in the circumstances.
- The Plaintiff failed to take reasonable care for his own safety, therefore the risk was outside any duty of care owed by the Defendants because the scope of that duty of care is delimited by the assumption that entrants to the site will take reasonable care for their own safety.
As a result of the Plaintiff’s actions, the Court made a finding that any damages awarded to the Plaintiff should be reduced. Further, if the Defendants were found to be liable for the subject incident, 60% of liability would be apportioned to the Second Defendant as the Plaintiff’s employer had a non-delegable duty to the Plaintiff, and 40% of liability would be apportioned to the First Defendant. However, the Court ultimately found that neither of the Defendants had breached their duty of care.
Implications for you
This decision provides guidance as to the Court’s assessment of an obvious risk. The Court considered what a reasonable person in the Plaintiff’s position would do in the same circumstances and concluded that the Plaintiff’s actions were unnecessary and dangerous as the Plaintiff did not need to use a ladder to prune the trees and, even if a ladder was used, a reasonable person would have gone no further than the second step of the ladder. This case further provides a useful reminder that potential claimants have a duty to take reasonable care for their own safety at work.