Mr Grant Thomas (Worker) was employed by Trades & Labour Hire Pty Ltd to work at the Gold Coast City Council (Host Employer) as a driver and operator of a tip truck (truck). The Worker was an experienced driver and had worked around trucks for most of his working life.
The Worker took a load of broken pieces of concrete curbing in the Host Employer’s truck to the Suntown Tip at Arundel. The truck was fitted with a tipper tray, which could be raised and lowered hydraulically. The Worker decided to discharge the load under the tailgate, with it swinging on its horizontal axis. The Worker chose this method, believing that the pieces of concrete were small enough to go under the tailgate. A sample of concrete pieces taken from the load after the incident contained pieces around 600mm wide.
He released two clasps securing the bottom of the tailgate tray from inside the truck cabin. As he was discharging the load, the Worker noticed something wrong with the tailgate. He said it looked as though one corner of the tailgate was hitting the ground. He went to inspect the issue.
The Worker pushed on the tailgate and it fell to the ground, falling on him and causing serious injury to his left foot.
The matters in issue at trial were whether:
- the Worker had pushed the tailgate immediately prior to it falling to the ground or whether it had ‘popped off’.
- the Host Employer had an adequate system of maintenance in place for the truck.
- the Host Employer provided adequate training and instructions to the Worker.
The Worker had given prior inconsistent statements about the sequence of events leading up to the tailgate falling off. He told a co-worker after the event that he had pushed on the tailgate. He also said that he pushed on the tailgate in his Notices of Claim. However at trial, the Worker said that he was just thinking about pushing on the tailgate and didn’t actually push on it.
The Host Employer had given a written instruction to workers to ‘immediately report’ any problems with vehicles.
Expert evidence was led about whether the hinge pin, which was holding the tailgate on, was wearing prior to the incident and whether that wear should have been detected. The Court found that the crack to the hinge pin was probably caused during manufacture and present for up to six (6) months prior to the incident.
Despite this, the Court did not consider that it was reasonable for inspection of the pin to form part of any inspection or maintenance process.
The Court found that the cause of the cause of the hinge pin breaking and the tailgate falling off, was the Worker pushing on the tailgate. This was despite the evidence of the Defendants’ and Plaintiff’s engineers, that the tailgate could have fallen off without any interference by the Worker.
The Court gave judgment for the Defendants.
This case will be of assistance to those managing claims involving workers with many years of industry experience, who disobey a written instruction by an employer. Particular emphasis was placed upon the instruction given to the Worker in the judgment. It may also be of interest to those compulsory third party insurers whose policies extend beyond driving, to the ‘use of’ a vehicle.