Risky business of quad bikes at work!

The matter involved Ms Holly Raper, a 24 year old British Backpacker who, on 30 December 2011, suffered serious head injuries as a result of a fall from a quad bike which occurred in the course of her employment. Ms Raper was left severely brain damaged as a consequence and required 24/7 attendant care.

Estcourt J found that there was clearly a duty of care owed by the employer to Ms Raper as follows:

• The employer must use reasonable care in the selection of competent fellow employees;
• The employer must have and keep machinery, the use of which might otherwise be dangerous, in proper condition and free from defect;
• The employer must provide a proper system of working;
• The employer must observe relevant statutory requirements, including the Workplace Health & Safety Act 1995.

In this case the Civil Liability Act 2002 (Tas) (CLA) was found not to apply. Accordingly the question of whether there had been a breach by the defendants’ of their duty of care to Ms Raper was determined by common law principles. It was necessary to consider the magnitude of the risk of personal injury or death arising from the use of a quad bike, the degree of probability of such a risk eventuating and the expense, difficulty and inconvenience of taking alleviating action. (Per Mason J (as he then was) in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR at 47.

Having found that the defendants did breach their duty of care in that they:

• Failed to provide proper training in how to ride what was described as a unique and inherently unstable machine;
• Failed to ensure that Ms Raper was provided with a helmet and that she was instructed to wear it; and
• Failed to keep the quad bike in proper condition as it had defective rear brakes and a flat rear tyre;

His Honour found, applying a common sense test, (in accordance with March v Stramare (E and MH) Pty Ltd [1991] HCA 12; 171 CLR 506,) that all of these matters, with the exception of the rear tyre, were, in some part causative of the accident. This was despite the fact that there was only circumstantial evidence available for consideration by the Court. There was no witness to the accident and Ms Raper could not provide any evidence in relation to it. The quad bike was upright, with the motor still running when Ms Raper was discovered lying badly injured and unconscious some distance from it.

The damages award was calculated in British pounds as Ms Raper was resident in the UK. Her future care needs, future medical needs, accommodation requirements and her claim for economic loss were calculated on that basis. She was awarded the sum of £6,970,426.00.

The following practical considerations are brought into sharp relief as a consequence of this decision:

• Damages awards may be considerably higher in circumstances where the injured worker is normally resident in a country where the costs of medical care, accommodation and wages may be significantly higher than in Australia. This may impact on the nature of the insurance requirements of employers who employ backpackers and other international workers, particularly for seasonal work which often involves more high risk manual activities.
• A very dim view is likely to be taken judicially of any employer who does not take proper steps to discharge his duty of care to employers in relation to quad bikes. The fact that they are inherently dangerous is well publicised and there are numerous publications detailing both the risk and a number of appropriate responses that can be taken in response.

This article was written by Alexandra Darcey, Partner.