In Derrick v Thiess Pty Ltd  WADC 41, Mr Derrick injured his neck alighting from a scissor lift.
Specifically, he was hanging onto a hand rail with his left hand, while his feet were on the bottom rung of a fixed ladder. He had hold of a swing gate in his right hand and when gate sprang shut, his jumped to the ground but he did not release the grip of his left hand. Essentially, he attempted to jumped down from the scissor lift’s ladder without letting go of the upper rail.
Mr Derrick suffered injuries to his neck and underwent an anterior cervical discectomy and fusion operation on 6 January 2012. There was no dispute that Mr Derrick’s whole person impairment was over 25%. The only issues for determination were liability for the injury and the quantum of damages that would be appropriate.
The defendant employer owed Mr Derrick a non-delegable duty to take reasonable care for his safety and to provide a safe work environment and a safe system of work, Her Honour Wager DCJ reaffirmed:
- The duty is not an absolute duty and is subject to the overarching principle of reasonableness,
- The duty is that of a reasonably prudent employer,
- The existence of a foreseeable risk of injury does not dispose of the question of breach of duty, and
- The test for foreseeability must not be performed in hindsight.
On reviewing the evidence, Wager DCJ found there was no evidence the scissor lift had been altered or was not fit for its purpose. Mr Derrick was a competent scaffolder with over five years’ experience, was familiar with the terrain and had been working with scissor lifts for the past six months without issue. Whilst in hindsight Mr Derrick could potentially have approached the task differently, there was no suggestion of how this would have occurred.
Her Honour was not satisfied the defendant had breached its duty of care and dismissed Mr Derrick’s claim.
Despite dismissing the claim, Wager DCJ analysed the medical evidence to determine the quantum of damages that would have been appropriate. Mr Derrick’s credibility was a major issue and surveillance of him performing manual work at building sites after the accident (including as a bricklayer’s labourer) was presented. The result was that medical experts who previously supported Mr Derrick changed their views and concluded he had no restrictions.
Given the amount of workers’ compensation payment he received, Wager DCJ was not satisfied Mr Derrick had proven a loss.
A very interesting case involving a self-represented Plaintiff. The case turns on its own facts but Her Honour provides a very useful and succinct examination of the law relating to an employer’s duty of care toward its employees.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.