Schmidt v S J Sanders Pty Ltd [2012] QDC 148

In June 2012, the District Court of Queensland handed down the decision of Schmidt v S J Sanders Pty Ltd [2012] QDC 148.

Background Facts

The worker brought a claim against his employer for damages in relation to injuries he sustained when he fell whilst exiting the cabin of a Volvo FM prime mover. He was an experienced driver and had commenced driving coaches in 1995 and then became a truck driver in 1997.

On 15 January 2008, at approximately 6pm, the alarm and lights on the vehicle’s dash started, signalling a problem. The worker telephoned his employer and he was instructed to investigate the problem. He climbed in and out of the cabin 3 times to check the airlines and on the fourth egress he fell. The worker reported that it was dark and raining heavily at the time he fell.

The Claim

The worker commenced his employment with the Defendant in 2007. At this time he had not previously driven Volvo vehicles. He claimed that Volvo vehicles had a different step configuration than the vehicles he had previously driven.

The worker claimed that his employer had not provided training on entering and exiting the cabin of the Volvo.

The incident was described by the workers, as occurring when he attempted to place his right foot on the top step.

His foot slipped and lost his balance, he tried to grab the door handle but fell to the ground. He gave evidence that he had never previously had difficulties finding the top step when alighting from the cabin.

He explained that each driver has their own method of getting out of the cabin and that he had experienced a little bit of difficulty getting out of the cabin when he first commenced his employment.

The worker admitted that due to his many years experience in the industry he was aware that the safe method for exiting from the cabin was by maintaining three points of contact with the vehicle. The worker admitted that when the accident occurred he was not maintaining three points of contact. He explained that at the time that he fell :

The rain was that bad you’re trying to – you’re trying to hurry a little bit’ [s 189]

The experts for the worker gave evidence that the three steps appeared to be made from aluminum with openings in the tread which provided poor slip resistance in wet conditions.

Mr Sanders, the director of the employer, reported that he had purchased and used 35 Volvo vehicles since 1999. He explained that 60 employees had driven the same the Volvo trucks and he had not received any complaints of people falling from the cabin. Mr Sanders did not dispute that there was no formal training provided on entering and exciting the vehicle.

The Decision

Despite the worker admitting that he failed to maintain three points of contact when alighting from the Volvo cabin, the Court accepted the his evidence that his foot slipped as a result of the step being slippery from the rain.

The Court found that despite no previous reports to the employer of people falling from cabins of the Volvos, there was still a risk of injury in doing so. In fact it was found that there was distinct possibility of injury in circumstances where drivers were in a hurry and in wet conditions.

The Court found that a reasonable employer would have increased the slip resistance on the steps, implemented a system of risk assessment, devised a method of entering and exiting the cabin safely, trained and instructed employees on the safe entry and exit of the vehicle and taken reasonable steps to ensure the safety instruction was implemented [s 197].

The Court found in favour of the worker and ordered the Defendant pay $225,000, which had been agreed on prior to trial.

Conclusion

This decision illustrates that employers’ duty of care is ‘not a low one’ [s 181] and that a ‘high standard of care is expected’ [s 181]. Even in circumstances where an employee is experienced, employers must take into account the possibility of inadvertence or misjudgment on the part of their employees [McLean v Tedman (1984) 155 CLR 306], and devise and implement their safety systems accordingly. A copy of the Judgment can be found here.