Barker v Rand Transport (1986) P/L [2013] QDC 172

In the recent decision handed down by Andrews DCJ of the Queensland District Court, a cold storage and transport business has been held vicariously liable for the negligent actions of a worker supplied by labor hire.

While vicarious liability is common in cases of employers and employees, this decision looks at the circumstances where a business can also be liable for the actions of workers sourced through labor hire as well as the necessity of making risk reduction policies known to all workers.

The Background

The Plaintiff, aged 58.75, was a refrigerated truck driver. The Plaintiff was at the Defendant’s cold storage facility attending to cargo in the back of his truck when a person driving a forklift entered the back of the truck and knocked a metal bar out of place. The bar struck and injured the Plaintiff.

The Plaintiff did not proceed against the forklift driver or the labour hire business which supplied the forklift driver to the Defendant. The Plaintiff proceeded against the Defendant at whose premises the forklift driver was driving.

The issues were:

  • Whether the Defendant was vicariously liable for the forklift driver’s negligence where the labour hire entity supplied him;
  • If the Defendant was not vicariously liable for the negligent forklift driver, did the Defendant independently breach its duty to take reasonable precautions for the safety of the Plaintiff;
  • Quantum (assessed at common law as the CLA did not apply).

Was the Defendant vicariously liable for the negligence of the labor hire worker?

While there was some issue as to whose employee the forklift driver was, His Honour found that the Defendant was vicariously liable for the forklift driver’s conduct as he was the Defendant’s employee in substance. This was irrespective of the possibility that the Defendant may have paid a labour hire company instead of the forklift driver directly.

His Honour opined a relationship of master and servant existed between the Defendant and the forklift driver and not between the forklift driver and the labour hire company because the forklift driver was subject to the command of the Defendant as to:

  • what forklift he drove;
  • when and where he worked;
  • what load he collected;
  • where he placed the loads;
  • when he could take a break;
  • what workplace rules he was to follow;
  • what safety meetings he was to attend; and
  • what hours he worked.

In addition, His Honour noted the forklift driver was treated by his superiors at the premises in such a way that made him indistinguishable from a causal employee.

His Honour opined the Defendant was better able to calculate the safety risks from operating a forklift at its premises than the labour hire company.

Did the Defendant independently breach its duty of care to the Plaintiff?

His Honour acknowledged that the Defendant:

  • Had strategies in place to prevent forklift and truck load drivers being inside trucks together,
  • Had rules against forklifts entering in the back of trucks when truck drivers were inside;
  • Had strategies to bring the rules to the attention of the forklift drivers, whether employees or not.

However, His Honour found that the Defendant failed to adequately draw the attention of the particular forklift driver to the risk arising from entering the rear of the truck when the driver was present. In addition, His Honour held the Defendant failed to advise the forklift driver that it was a rule at the premises that a forklift driver must not do so.

His Honour opined this failure was a breach of the Defendants duty to take reasonable precautions for the safety of the Plaintiff.

Assessment of Quantum

The decision also provides a further example of assessment of damages at common law discussed below.

  • General Damages

The Plaintiff was assessed by Dr Scott Campbell, neurosurgeon, who opined he suffered a 2% whole person impairment for post traumatic headaches. Dr Campbell opined that there were non-injury related causes of the headaches and His Honour accepted that the 2% whole body impairment was appropriate.

The Defendant’s Insurer sought a report from Dr Gordon Stewart, consultant neurosurgeon, who opined that the Plaintiff had pre-disposing, pre-existing degenerative disease of the cervical spine unrelated to the accident.

Dr Stewart’s opinion that the injury has now healed was rejected by His Honour for being to simplistic. His Honour found that it was unsound having regard to the temporal connection between all symptoms from the date of the accident, the continuity of symptoms and the absence of explanation of continuity.

His Honour awarded the Plaintif $30,000.00 despite the identification of non-accident related causes of his headaches.

  • Economic loss.

While His Honour allowed $80,000.00 for past economic loss, he made nil award for future economic loss.

While it was held that the Plaintiff’s headaches had impaired his capacity to some extent, the Plaintiff did not satisfy the Court that the headaches were solely attributable to the accident or caused caused any current impairment of his earning capacity.

  • Special Damages

Similarly, while His Honour allowed 50% of the claimed special damages (as not all of the headaches could be attributed to the accident), he allowed nil for future special damages. The refund to Medicare and Fox v Wood damages were not disputed by the Defendant.

  • Interest

Interest on past economic loss and special damages was claimed at 10% per annum and was not challenged by the Defendant. Consequently, while the interest rate appears high, His Honour awarded interest at 10% per annum.

Conclusion

This decision highlights that businesses sourcing labor on a contractual basis must be aware that they may be held vicariously liable for their actions despite there being no formal employer/employee relationship.

In addition, it is important that businesses not only conduct risk assessments and have policies in place to reduce risk of injury, but ensure those policies are within the knowledge of employees and other workers.

A copy of the decision may be accessed here.