Rosengren DCJ finds the defendant did not breach their duty of care to the plaintiff, where the plaintiff fails to properly substantiate their claim for negligence.
In issue
- Whether the defendant breached their duty of care by failing to adopt a safe system of work, resulting in the plaintiff’s injuries.
The background
On 27 July 2019, the plaintiff was assisting the defendant with spraying herbicides on his hobby farm, when he fell and broke his right leg. The plaintiff’s task was to use a spray hose to apply herbicides to the stems immediately after they had been cut by the defendant, who was using a brush cutter which had a metal blade.
The plaintiff alleged that prior to his fall, he was walking in an area containing a high concentration of scattered rocks on the ground, when the defendant approached him, moving the brush cutter close to him. The plaintiff alleged this caused him to step back to try and avoid contact with it and in doing so, he lost his footing and fell. The defendant denied these allegations. The defendant’s evidence was that the plaintiff had undertaken this exact job on two previous Saturdays.
The plaintiff commenced proceedings alleging that the defendant failed to provide a safe system of work on the basis that, among other things, the distance between the parties while cutting and spraying was inappropriate, the type of spray bottle used was unsafe, there was insufficient instruction and/or supervision provided by the defendant and there was a failure to warn of debris on the ground.
In the lead up to the trial, the plaintiff was given an opportunity to amend his pleadings to ensure the claim was appropriately particularised. While some of the allegations of negligence were amended, some remained deficient.
The decision at trial
Rosengren DCJ found in favour of the defendant on the basis that while the risk of harm was real and not insignificant, the defendant did not breach his duty of care and he was not required to take additional steps to avoid the risk of injury to the plaintiff, for the following reasons:
- While there were things that could have been done to reduce the risk, including putting additional space between the plaintiff and the defendant, to do so would have unduly impeded the plaintiff in performing the spraying task, which required the regrowth to be sprayed immediately after being cut;
- While the risk of a brush cutter is obvious and known to both parties, the plaintiff had the necessary experience to know how to avoid such a risk, which he did by remaining a safe distance behind the defendant;
- Any allegation that the defendant ought to have provided the plaintiff with training and/or instruction as to using the spray bottle, was rendered irrelevant on the basis that this had nothing to do with the fall;
- The allegations that the defendant ought to have provided the plaintiff with training, instruction and/or supervision to remain behind the defendant while he was cutting, were rendered baseless, as this is exactly what the plaintiff was doing when he fell;
- Just because the plaintiff would have preferred to use his own spray bottle, that did not render the one he used unsafe or inappropriate, particularly in circumstances where the plaintiff led no evidence about how doing so could have secured him from danger; and
- Given the plaintiff’s extensive experience in working on rural properties and in forestry areas, the defendant was not required to provide an explanation about the undulating ground or debris on the ground, as these were obvious risks, which were usual and expected features of rural properties.
In relation to quantum, her Honour was satisfied that the plaintiff had sustained a permanent impairment and would therefore suffer loss. While her Honour made an assessment under the heads of damage at paragraphs [61]–[107], it was of minimal outcome noting the findings in relation to liability.
Implications for you
It is important to remember that when establishing a breach in negligence, the test is what a reasonable person would have done, rather than using hindsight to identify what would have avoided the injury. Just because an injury resulted, does not mean a finding of negligence will inevitably flow and care should be taken in pursuing claims on this basis. Further, claims should be rigorously defended where they have been pursued against an insured on this basis. Finally, care should be taken using a ‘one size fits all’ approach to pleadings as failure to properly plead and particularise the breach based on the specific facts of the matter, will be detrimental to the success of a claim.
