Summary
Graeme Sneddon (plaintiff) was employed by Allan Petts (defendant) as a farmhand on his property. The defendant was using a brushcutter (a bladed whipper snipper) on noxious regrowth, whilst the plaintiff was spraying herbicides after the cut. The plaintiff was required to spray 15 seconds after the cut otherwise sap would form and make the herbicide less effective.
The plaintiff alleges that the defendant (using the brushcutter) turned towards the plaintiff, causing him to step back, trip on a rock and fall. It is undisputed that the plaintiff was standing approximately 5 metres behind the plaintiff, and the brushcutter was 1.83 metres in length.
The Plaintiff argued the Defendant failed to:
- Create a system whereby the plaintiff could work 15 metres away from the defendant whilst following behind.
- Train the plaintiff in how to move the hose in the paddock, keeping a distance of 15 metres from the brushcutter, how to spray the cut stem within 15 seconds whilst maintaining 15 meters, and the path to travel to spray the cut stems.
- Provide equipment that was appropriate, as the hose was too difficult to manage with the limited timeframe to spray the cut stems. The equipment was not suitable, unlike the Stihl Brushcutter FS 450 and a 2.5 litre spray tank which the plaintiff owned.
- Undertake a risk assessment of cutting the regrowth which would have identified the need for a 15 metre distance from the brushcutter, and the defendant's equipment was not appropriate.
- The plaintiff also argued the defendant failed to take reasonable care with respect to the use of the brushcutter.
The Defendant argued:
A risk assessment had been performed, which led to the instructions provided to the plaintiff and the system of work implemented. This same system was used the two Saturdays prior to the incident. The brushcutter was never brought in close proximity of the plaintiff. Adequate time was allowed to perform the task and appropriate equipment was provided for the task to be done safely. No further instructions or warnings from the defendant was required.
Liability Findings:
- A distance of 15 metres from the brushcutter might have decrease the risk of injury however, the plaintiff would be unable to spray in the 15 second window.
- Any failure to provide training/instructions was causally irrelevant as the plaintiff was standing still holding the hose at the time of the incident.
- There was no substance in the allegation of the plaintiff staying behind the defendant as this was what the plaintiff was doing as the job required the spray to occur after the stump was cut.
- The plaintiff was approximately 5 metres behind the defendant when he lost balance and fell.
- The plaintiff failed to adduce evidence to demonstrate how utilising the equipment owned by the Plaintiff might have reduced the risk of injury.
- Rosengren DCJ considered that no risk assessment would have identified the need to stand 15 metres away, nor use the plaintiff equipment instead of the defendant's equipment.
Actions of the Defendant:
Rosengren DCJ was not persuaded that the defendant approached and unpredictably moved the brushcutter closer to the plaintiff, nor that this was close enough for the plaintiff to fear this action. Further it is not satisfied the defendant failed to control the brushcutter, nor keep lookout for the plaintiff.
For the abovementioned reasons, Rosengren DCJ awarded judgment for the defendant.
Quantum:
In circumstance where the plaintiff was successful, Rosengren DCJ calculated damages of $178,832 (clear of the WorkCover Refund)
