An employer was found liable for the injuries sustained to a worker who rode a pallet jack like a scooter.

In Issue

  • Whether sufficient training was provided by the employer regarding horseplay in the workplace.
  • Whether the employer was vicariously liable for the actions of an worker.

The Background

Mr Cincovic was employed by Blenner’s Transport Pty Ltd as a truck driver. On 30 March 2014, Mr Cincovic was transporting a pallet jack through the workplace depot to his truck. Mr Cincovic was riding the pallet jack like a scooter with one foot on each tyne. CCTV footage captured Mr Cincovic using one leg to propel the pallet jack several times. As Mr Cincovic was riding the pallet jack, Mr Lee Starling approached and used one foot to push one of the tynes of the pallet jack. Mr Cincovic fell backwards off the pallet jack, striking his head and back on the concrete floor, and sustained spinal fractures.

Mr Cincovic alleged his injuries were the cause of the employer’s breach of duty, either directly or indirectly through vicarious liability for Starling’s actions. Mr Cincovic alleges that while he had signed some forms indicating he had received training at the commencement of his employment, he did not complete any aspect of the forms and did not receive any training in relation to the operation of a manual pallet jack. Mr Cincovic denies having received any induction or training regarding safe work procedures or ever being shown a code of practice prohibiting horseplay.

In his evidence, Mr Cincovic stated that he had ridden pallet jacks as scooters on previous occasions and he had seen other workers riding pallet jacks in the same manner. Mr Cincovic stated he had not been told by anyone not to do so and had not seen other workers told not to do so. Derrick Stuart, a co-worker, provided supporting evidence to Mr Cincovic’s allegations.

The employer’s case was that Mr Cincovic was using the pallet jack in a manner contrary to the way in which he had been instructed, trained and authorised, and that Mr Cincovic was engaged in horseplay. The employer pleaded that horseplay was not tolerated at the depot.

The employer’s evidence indicated that, for the most part, its operations managers and supervisors had not previously observed any instance where a worker rode a pallet jack like a scooter or engaged in horseplay in the management of forklifts. Only Craig Woodhead, operations supervisor, accepted that he had, from time to time, seen workers ride pallet jacks like scooters, following which, he would stop them and give them a verbal warning. The employer’s managers gave supporting evidence that any worker observed behaving in such a manner would be pulled aside and disciplinary action undertaken. The employer’s evidence indicated a Code of Conduct was in place and given to all workers, setting out that the employer encouraged a safe work environment, and horseplay and disorderly conduct could result in disciplinary action.

While the employer did have instructions on the use of the fork lifts and pallet jacks, the evidence was that there were no written instructions or signs specifically stating pallet jacks were not to be ridden.

The Decision at Trial

The court found that the plaintiff had received training regarding the use of pallet jacks. The court did not accept that the riding of pallet jacks like a scooter was either condoned by the employer, nor a regular occurrence.

However, the court found that the employer was aware that this occurred from time to time, and in the absence of an express prohibition or instruction not to ride the pallet jack like a scooter (and enforcement of such instruction), the employer had failed to discharge its duty of care.

However, because no evidence was led by the plaintiff that he would have complied with such an instruction, he failed in his claim for direct liability against the employer.

On the other hand, the court accepted that Mr Starling’s actions, whilst unauthorised, occurred in the scope and course of his employment and thus the employer was to be held vicariously liable for the actions which gave rise to Mr Cincovic’s injuries.

The court found no contributory negligence on the basis that the plaintiff was riding the pallet jack in a way he had seen others do, and he was never instructed not to do so.

Judgement was awarded for the plaintiff in the amount of $791,514.71, clear of the $83,154.99 refund to WorkCover Queensland.

Implications for you

This decision shows that express instruction, and enforcement, regarding prohibited workplace activities is required for an employer to satisfy its duty of care

Employers should be sure to establish that any unsafe behaviour in the workplace is specifically prohibited and made known to workers.

The decision is also a reminder that a worker’s actions, although only loosely connected with the activities of employment, may still result in vicarious liability for the employer.