Cincovic v Blenner’s Transport Pty Ltd  QSC 320
Case note – worker using pallet jack inappropriately, a co-worker “helps” him along but causes him to fall off.
Issues – was worker acting in defiance of employer’s instructions; was employer responsible for co-worker’s acts; was worker contributorily negligent; where credit affects worker how to assess injuries and loss.
His Honour Justice Boddice sets out the facts of the incident as follows:
 The incident, which was filmed on CCTV, occurred when the plaintiff was transporting a pallet jack through the depot back to his truck. In doing so, the plaintiff rode the pallet jack like a scooter. He used one leg to push it several times before putting a leg on each tyne as the pallet jack travelled forward a distance towards the location of his truck.
 As the plaintiff was riding the pallet jack, another employee, Lee Starling, approached the plaintiff from behind. Starling accelerated in a running motion and used his foot to push one of the tynes of the pallet jack. The plaintiff fell backwards off the pallet jack. The plaintiff’s back and head struck the concrete floor.”
Cincovic argued the employer was at fault in negligence and contract, and vicariously liable for the acts of the co-worker.
The employer defended the claim as follows:
“By way of defence, the defendant pleads that the plaintiff was using the pallet jack contrary to the way in which the plaintiff had been instructed, trained and authorised and was engaged in horseplay. The defendant denies it caused or contributed to the incident by its own negligence or breach of contract. The defendant alleges it is also not vicariously liable for the casual, spontaneous act of Starling in kicking the pallet jack.”
The workers at the truck depot agreed with Cincovic that from time to time workers would use the pallet jacks in this manner, and despite reprimand on occasions, no general training or direction was given for it to stop.
The incident was captured on CCTV so there was no dispute on how it occurred.
Primary liability case
His Honour accepted the failure to provide this training and instruction was a breach of a duty of care.
However, the worker did not establish that if the employer had undertaken these steps, it would have prevented the accident. Therefore, the breach did not cause the accident. The worker lost on primary liability of the employer.
His Honour explained the rationale for vicarious liability as follows:
“The doctrine of vicarious liability has as its foundation the proposition that employers choose to take on employees, knowing there will be consequences, including the assumption of the risk that in carrying out duties and functions relevantly connected to that employment, the employee will cause injury or damage to others. An essential requirement for the establishment of vicarious liability is that the act be said to have been undertaken in the scope or course of the wrongdoer’s employment. That requirement provides the objective rational basis for liability and its parameters.”
It was accepted the workers were not skylarking. At issue is whether the act of the co-worker was within the scope of his employment.
His Honour deals with the issue and found in favour of a finding of vicarious liability as follows:
“In the present case, it is significant that whilst kicking the tyne of the pallet jack could not be said to have been an act which was authorised by the defendant, the act occurred on the floor of the depot between fellow workers in the context of the pallet jack being transported from one section of the depot to another. The act of one fellow employee to push the pallet jack on which the plaintiff was travelling could properly be seen as an action to assist in the transportation of the pallet jack to its desired location.
 To that extent it can properly be viewed as an act undertaken in the course of Starling’s employment. It was not an act completely devoid of any relationship to that employment. It could not be said to have been designed to deliberately harm the plaintiff or to unlawfully damage the defendant’s equipment. It could also not be said to be unjust or unfair to hold the defendant responsible for Starling’s actions.
 Having considered the context in which the incident occurred, the respective positions of the plaintiff and Starling, the workplace within which the incident occurred and its practices and procedures, I am satisfied Starling’s act, whilst unauthorised, is properly to be viewed as having occurred within the scope and course of his employment with the defendant. The defendant is properly to be held vicariously liable for that act and any consequent injuries sustained by the plaintiff.”
His Honour found while the conduct of Cincovic was inappropriate, it was not dangerous and he had seen others do so without any employer instruction not to do so.
The worker did not encourage his co-worker to intervene and it clearly caused his fall. The employer should have forseen a co-worker getting involved if others are riding pallet jacks and taken greater care to prevent these events.
The last finding seems somewhat at odds with the finding on primary liability, but in the circumstances of a fairly straightforward vicarious liability case, of no moment.
It appears to me the primary focus for the defence was on quantum and credit issues, and they threw in the liability arguments for the sake of completeness.
The plaintiff did not help his case.
He forged invoices for lawn mowing.
He made out he needed a walking stick but was shown in surveillance footage to ambulate easily without one.
His physical injuries were compression fractures which were found not to be causing the level of impairment he had made out.
What saved the day for the plaintiff here was his psychiatric injury. Of real interest here was the battle between experts, Dr Garg for the plaintiff and Dr Kar for the employer.
Dr Garg supported Dr Wong, the treating psychiatrist, who did not believe the opioid use explained all of the symptoms. Dr Kar opined that it was the sole cause of his symptoms and until he ceased use of opioids he could not be assessed. Dr Wong stated the opioid use did not show signs of abuse as the level of use was consistent over many years and no illness behaviour was seen. Dr Garg agreed.
His Honour made the following finding:
“ I accept the evidence of Dr Garg that the plaintiff has, as a consequence of the injuries sustained in the incident, developed a major depressive disorder. That evidence is consistent with the observations of Dr Wong, who has been treating the plaintiff for a significant period of time. I do not accept Dr Kar’s evidence that the plaintiff’s ongoing symptoms are explained by opioid dependence or that a finding of relevant psychiatric illness is precluded whilst the plaintiff is medicated by opioids. Whilst the plaintiff is dependent on opioids, that dependence does not extend to abuse. Indeed, the plaintiff appears to limit his use of those opioids.
 As Dr Garg observed, the plaintiff has presented consistently to a number of psychiatrists over an extended period of time. The fact the plaintiff attended a shopping centre, enjoyed a coffee and completed his own shopping is consistent with a person who is endeavouring to continue with his life, albeit in the context of significant depression. The behaviours evidenced on the video surveillance were not inconsistent with the existence of a significant psychiatric overlay.
 The existence of this psychiatric condition significantly exacerbates the consequences of the plaintiff’s ongoing physical disabilities. I accept that as a consequence the plaintiff is commercially unemployable, having regard to the time period that has elapsed since the incident and the consistency of his presentation psychiatrically.”
Having seen many workers have the statutory claims under WorkCover subject to dismissive reports from Dr Kar, which tended to often blame medication use for all of their symptoms, it was interesting to see this opinion tested in Court.
Damages were then assessed at $791,514.71 clear of the statutory refund of $83,154.99.