Schonell v Laspina, Trabucco & Co Pty Ltd  QSC
This Supreme Court decision confirms that the test for
reasonableness is forward-looking and cannot be considered with the
aid of hindsight. The decision also provides that deliberately
obtaining information in creative ways to avoid the operation of
section 279 of the Workers' Compensation and Rehabilitation Act
2003 (Qld) is behaviour contrary to the objects of the
The plaintiff was employed by the defendant as a block layer. He
was injured when he stepped off the platform he had been working
from onto a ladder. He alleged that when he placed his weight on a
rung of the ladder, it 'shunted' and gave way. In
attempting to return to the platform his left foot became caught on
the lip of the second plank and he injured his left knee.
The plaintiff argued that:
the ladder had a defective brace
there should have been regular inspections of the ladder
the scaffold constructor failed to properly inspect the
a conventional ladder should have been used (if the tipping of
the ladder to its side was a cause of the accident).
Martin J found that:
The employer's inspection of the ladder on the day of the
accident was reasonable and that there were no practical
alternatives to that type of inspection. The absence of regular
inspections is irrelevant if an inspection immediately before an
incident disclosed nothing untoward.
The plaintiff's submission that the scaffold constructor
failed to properly inspect the ladder could not be accepted because
the plaintiff called the scaffold constructor as a witness and made
no attempt to lead evidence of inadequacy of inspection by
The plaintiff's foot did not become caught on the second
plank of the platform; this version was a 'reconstruction by
the plaintiff of what [had] occurred' and was inconsistent with
Even if this reconstructed version of events was accepted,
there was no evidence of an industry standard for plank clamps to
be used for a 4-plank scaffolding platform commonly used by block
layers. This argument by the plaintiff was 'based upon "an
inappropriate and impermissible use of the benefit of
The plaintiff did suffer a painful injury and continued to
suffer its side effects but his Honour noted, by reference to
surveillance footage, that the plaintiff exaggerated his condition
and consciously presented himself in a way designed to elicit
sympathy and support his claim.
In deciding whether the employer had breached its duty of care,
Martin J emphasised that 'reasonableness' must be
considered without any benefit of hindsight. His Honour cited Hayne
J's judgment in Vairy v Wyong Shire Council:
The inquiry into breach, although made after the
accident, must attempt to answer what response a reasonable person,
confronted with a foreseeable risk of injury, would have made to
that risk. [...] that inquiry must attempt, after the event, to
judge what a reasonable person would have done to avoid what is now
known to have occurred. Although that judgment must be made after
the event, it must seek to identify what the response would have
been by a person looking forward at that prospect of the risk of
Martin J dismissed the claim because the plaintiff failed to
demonstrate that any action or lack of action by the defendant
caused, or even contributed, to his injury or that the defendant
was otherwise negligent.
The case also looked at the scope of section 279 of the
Workers' Compensation and Rehabilitation Act 2003
(Qld) ('the Act'). That section requires parties to
cooperate by 'giving each other copies of relevant documents
about the circumstances of the event resulting in the injury'.
Martin J noted that the plaintiff's solicitors deliberately did
not obtain a signed statement from the plaintiff. Instead, to avoid
the operation of section 279, they took his instructions, reduced
them to writing and then asked for his comments.
His Honour was unimpressed by the plaintiff's
solicitors' apparent disregard for the legislation and noted
that 'at the very least' it appeared that the
claimant's solicitor had acted in a way contrary to the objects
of the Act.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).