The Victorian Supreme Court recently examined a non-employer third party's duty of care in circumstances where that party had no involvement with the task being performed by the injured worker when he was injured. It also considered apportionment of liability as between defendants.
- Whether a non-employer third party (HRX) owed a duty of care.
- If so, whether it had breached that duty.
- Apportionment between defendants.
On 31 January 2007, Mr Meli was injured when eight metal load securing gates in the rear of a Tautliner trailer (the trailer), situated at the Somerton depot of South Pacific Tyres (SPT), fell on him (the incident). The gates had a combined weight of approximately 300 kg. At the time of the incident, Mr Meli was untying the metal gates to reposition them along both sides of the trailer so that the trailer could be loaded with tyres to be transported to SPT’s Brisbane depot.
Mr Meli was an employee of Ceva Logistics (Australia) Pty Ltd (Ceva), which was contracted to provide logistic services to SPT. The trailer was owned and operated by HRX TPT Pty Ltd (HRX), which was contracted to provide transport services to SPT. HRX had fastened the gates in the trailer before it had arrived in Somerton.
Ceva admitted that it owed a duty of care to Mr Meli, which it breached. It claimed, however, that HRX should be liable for the “lion’s share” of damages.
HRX denied that it owed any duty of care to Mr Meli. Alternatively, if it did owe a duty of care, it did not breach that duty. HRX also claimed a full indemnity from Ceva. Alternatively, HRX submitted that its liability to Mr Meli should be limited to 10-15%.
The core issue as to the liability of HRX concerned the manner in which the eight gates were secured. Whilst Mr Meli (and Ceva) contended that all eight gates were secured by only one rope, which had been lashed across the front of all eight gates, HRX contended that the six gates positioned closest to the rear of the trailer were tied off in bundles of two, with the final two gates being secured by a nine metre ‘stack securing rope’, which was lashed across the front of the gates three times. HRX also argued that Mr Meli had untied the ropes in an ‘incorrect sequence’.
In support of its assertion that it owed no duty of care to Mr Meli, HRX submitted inter alia that it was not the employer, principal, sub-contractor or in any other way responsible for the system of work, place of work or the manner by which Mr Meli performed his loading duties at the time of the incidents; it has no control over the system of work by which Ceva loaders unfastened the stack of gates; it was not responsible for Mr Meli’s training or instruction (which HRX claimed was the “root cause” which enabled him to unwittingly release the safety tail hitches);and,finally, Ceva failed to undertake an appropriate risk assessment for the unfastening task.
The court found that the eight gates were secured by only one rope and that HRX should bear primary liability for Mr Meli’s injuries.
The court rejected HRX’s submission that it did not owe a duty of care to Mr Meli. It found that HRX owed a duty of care to Mr Meli due to the total control which it exercised over the fastening of the gates in the trailer prior to its departure to SPT Somerton and due to its knowledge that the gates would be unfastened by Ceva employees.
According to the court, the duty owed by HRX was to ‘secure the gates so as not to expose any person untying them to an unreasonable risk of injury’, which ‘risk was patently foreseeable’. The court found that ‘The fundamental cause of the accident was HRX’s failure to properly secure the stack of gates’. It noted that tying off the gates with one rope was ‘a radical departure from HRX’s usual practice of tying off the gates in sets of two’ and that ‘Had that usual practice been followed, the gates would not have fallen on Mr Meli…’. As such, “the hazardous situation ‘had been created by the inadequate securing of the gates prior to the arrival of [the] trailer… at Somerton…’.
The court apportioned liability between HRX and Ceva at 65 % and /35%v respectively. Ceva’s liability exposure was premised on its inadequate occupational health and safety practices and the provision of inadequate lighting on the day of the incident
Mr Meli's injuries were at the severe end of the spectrum and the court awarded him the statutory maximum of $598,360 for pain and suffering and $1,374,370 for past and future economic loss (taking into account vicissitudes).
Implications for you
This decision acts as a reminder that when determining apportionment, a comparison both of culpability and the relative importance of the acts of the parties in causing the injuries must be undertaken. Factors relevant to the apportionment of liability include consideration of which party ‘created the hazardous situation’ or exercised a significant degree of control over it.