Duong v Versacold Logistics Ltd [2010] QSC 466

The Facts

The Plaintiff was injured when he fell from a ride on pallet jack. He was a labour hire worker and so sued his actual employer, host employer and the manufacturer of the pallet jack.

De Jersey CJ found that the Plaintiff was a ‘credible and reliable’ witness and that evidence from a coemployee suggesting the Plaintiff turned too quickly due to pressure to keep up with the pick rate was unreliable and “re-constructing”.

The Court therefore accepted the Plaintiff’s evidence that as he began to turn the tiller used to steer the pallet jack “jerked hard to the right without warning.” This of course then invited consideration of what caused such behaviour in the machine. The Court accepted evidence of the host employer’s mechanic that this particular type of machine had no inherent defect. This left the only other possibility being that the pallet jack had run over some debris. Despite no witness, including the Plaintiff, being able to identify a pallet fragment or anything else on the ground after the incident by process of elimination the Chief Justice found that this was most probably what had occurred.

The Decision

Unfortunately evidence as to the host employer’s system for cleaning the floors was sparse and his Honour ultimately concluded the removal of debris fell to the individual pallet jack operators in the course of their duties. This was held to be inadequate and the host employer was therefore found to be in breach. On the findings of fact made by the Judge there was no contributory negligence as according to his Honour the normal operation of the vehicle restricted the Plaintiff vision. Despite the fact the actual employer provided a handbook on the pallet jacks, conducted an audit of the premises, maintained an on-site presence and had an ongoing safety audits and toolbox meetings they were also found liable. Indeed a safety audit had identified a problem with broken pallets but did not record that anything was in fact done about it. They were therefore also found in breach and perhaps just to buck the ‘usual’ 75/25% trend, his Honour apportioned 70% liability to the host employer and 30% to the actual employer. An argument that there was a contractual indemnity to the host failed as the Court found all contractual obligations had been complied with by the actual employer. There was no liability found for the manufacturer.

What to Take Away

Of interest on the quantum side is that despite the Judge awarding the Plaintiff $90,000.00 for past economic loss and finding that he had a permanent impairment, given the evidence that the Plaintiff could cope with his current employment, no allowance was made by the Chief Justice for future economic loss.

Probably the other lesson to be learnt from this is case of course how well the Plaintiff presents, at trial can be the all important factor. Here, once the Trial Judge accepted the witness as credible and accepted his story that the machine veered violently without warning, his Honour was virtually compelled to a finding of negligence against someone.