No contributory negligence where worker acting within the expectation and interest of employer

16 May 2019

An employer was found liable for the injuries sustained to a worker who fell whilst travelling on the engine of a vehicle in the course of his work. No contributory negligence was found against the worker.

In issue

  • Whether the worker’s own actions in agreeing to travel on the engine constituted a frolic of his own.
  • Whether the worker’s own actions gave rise to contributory negligence.

The background

The Plaintiff in this matter was employed as a motor mechanic by Rolfe Mazda. On 21 February 2013, the Plaintiff and his supervisor were attempting to determine the cause of a knocking noise from the engine of a vehicle being worked on in the workshop of Rolfe Mazda.

It was suggested by his supervisor that in order to better establish the cause of the knocking sound, they remove the bonnet of the vehicle, and have one person travel on the engine while the other drove the vehicle. Accordingly, his supervisor travelled on the engine of the vehicle whilst the Plaintiff drove the vehicle to a park in Belconnen. Afterwards, his supervisor believed he knew the cause, however suggested the Plaintiff also listen to the sound in order to properly identify its cause as the Plaintiff would be working on the vehicle. The Plaintiff agreed with this suggestion and took up position on the engine of the vehicle. As his supervisor drove the car and brought it to a stop, the Plaintiff lost his grip and fell, sustaining serious injury to his wrist.

The Plaintiff’s injury was sufficiently serious that the medical evidence found he was unlikely to be able to undertake any heavy manual work in future, including in his role as a motor mechanic.

The Plaintiff brought a claim against his employer (the First Defendant) and the compulsory third party insurer (the Second Defendant) for the vehicle. In light of an agreement between the First and Second Defendants about how damages would be awarded, the Defendants were together referred to as “the Defendant”.

The Defendant argued that a reduction ought be made for contributory negligence against the Plaintiff, to the extent of 100%, on the basis that the Plaintiff engaged in a frolic of his own. The Defendant argued that it had not been necessary for the Plaintiff to get on the vehicle because his supervisor had already identified the location of the knocking sound. The Defendant argued the Plaintiff should have rejected the invitation to get on the vehicle. In support of this argument, the Defendant relied on the Plaintiff’s own evidence that he was capable of telling his supervisors he did not want to do something if he thought there was something he did not want to do.

The Plaintiff argued that he was following a system of work devised by his employer, he was working under the direct supervision of his supervisor and taking direct instruction from that supervisor within the employer’s system of work. Further, the Plaintiff had trusted the system designed by the defendant employer because he had witnessed his supervisor travelling on engines in the past (although on previous occurrences vehicles had only been driven in the driveway of the workshop not to the park).

The decision at trial

It was ultimately accepted that travelling on the engine of the vehicle was a system of work that had been devised or implemented by or on behalf of the employer, and had not been, in any sense, a frolic of the Plaintiff’s own. The Court was satisfied that the Plaintiff was acting within the expectation of his supervisor and was acting in the interest of the employer. In its findings, the Court noted that the evidence suggested that dissent was not particularly encouraged in the employer’s workplace, thereby indicating any declinature by the Plaintiff to get on the vehicle would not have been received well.

The Court found no contributory negligence by the Plaintiff, particularly as travelling on the engine of the vehicle had been a system established and used within the workplace in the past.

Judgment was found in favour of the Plaintiff against the Defendant.

Implications for you

This decision shows that even where a worker is injured in an activity which endangers his or her own safety in the workplace, the employer will be liable where the activity was instructed and encouraged by the employer.

Atherden v Caldipp [2019] ACTSC 29

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