A man who suffered injury while riding on the engine of a car after the bonnet had been removed, has been successful in his claim of negligence against his employer, with the Supreme Court of the Australian Capital Territory finding the employer designed and implemented a dangerous system of work.
Background
Mr Jason Atherden worked as a motor mechanic for Caldipp Pty Ltd, trading as Rolfe Mazda. Mr Atherden and his supervisor, Peter Fisher, were trying to determine the cause of knocking noise coming from the engine of a vehicle that was being worked on in the workshop.
After the usual diagnostic techniques had failed, Mr Fisher suggested that they remove the car’s bonnet, and that one of them travel on the engine area of the car while the other one drove the car.
The car was driven to a park in Belconnen. Mr Atherden lay on the front of the car after its bonnet had been removed, while Mr Fisher drove the car in the park. As Mr Fisher was bringing the car to a stop, Mr Atherden lost his grip and fell off in front of the car. He sustained serious injuries to his wrist involving a fracture, ligament damage and a torn cartilage.
Court proceedings
Mr Atherden commenced proceedings against his employer in the Supreme Court of the Australian Capital Territory, in negligence and claimed damages. He alleged that the employer was negligent in devising and implementing a dangerous system of work.
The employer denied liability. It also argued that Mr Atherden was on “a frolic of his own” and that Mr Atherden’s contributory negligence should be assessed at 100%.
Her Honour Penfold J found that the activity which resulted in Mr Atherden’s injury was initiated (both as a workplace practice, and on the occasion of the accident) by his supervisor. Mr Atherden’s participation in that activity was done not in his own interest but in the interests of his employer, and against that background there was no contributory negligence by Mr Atherden. [152]
Her Honour found in favour of Mr Atherden and awarded damages, including $125,000 for general damages: Atherden v Caldipp [2019] ACTSC 29
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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