Key words
Employer liability – negligence – defect – illegal receipt of Centrelink benefits – causation – economic loss.
Facts
The plaintiff was employed by the defendant as a caretaker. On 16 March 2020, the plaintiff was required to mow the lawn. The battery in the ride-on mower was dead. The Plaintiff had previously complained about the dead battery to the defendant but it was not replaced until after his injury. The plaintiff used his car to jump start the ride-on mower.
In the course of mowing the lawn the mower became stuck next to a slope. Because of the state of the battery, the plaintiff had to leave the mower on while he alighted from it to push it forward.
In the course of pushing the mower forward he tore his Achilles tendon. As a consequence of his pain, he rolled down a steep embankment which allegedly caused a knee injury. There was no contemporaneous record of him rolling down the embankment until after the damages claim was commenced. The Plaintiff had not previously lodged tax returns on time (having only done so for the purpose of the claim) and had not been declaring his full-time wage as a caretaker to Centrelink whilst receiving the age pension.
Decision
Sheridan DCJ, delivered on 10 April 2024. Judgment entered in favour of the plaintiff who was awarded damages of $41,076.88 less the WorkCover refund.
Ratio
Her Honour accepted that had the battery not been flat, which was a defect known to the defendant, the injury would not have occurred because the plaintiff would have turned off the mower and then used both hands to jiggle the mower out of the position before restarting the mower and resuming the work.
The risk the plaintiff might be injured in this way was foreseeable and not insignificant particularly given the mower was required to be used close to the slope. It appears Her Honour was prepared to make a finding of contributory negligence against the plaintiff but declined to do so because this allegation was withdrawn on the first day of trial.
Her Honour found the knee injury was unrelated due to the absence of contemporaneous record about the knee and the absence of observable symptoms after the injury.
The assessment of economic loss was complicated by the fact that if a sum were awarded, he would receive higher income to which he was entitled because of his receipt of the age pension and failure to disclose income to Centrelink.
In that regard Her Honour confirmed the approach set out by previous authorities was the assessment ought to be done based on loss of earning capacity and not limited to income disclosed to the ATO. In any event, Her Honour found the Achilles injury had resolved and the ongoing incapacity was caused by the unrelated knee injury. Consequently, no award was made for future economic loss or future special damages.
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