The Court of Appeal has upheld a decision of the Supreme Court to dismiss an injured tip truck driver's claim due to causation.
- Whether the appellant’s injury was reasonably foreseeable
- Whether the respondents provided safe systems of
- Whether the alleged breach of duty of the respondents was causative of the appellant’s injury
On 2 August 2010 the appellant was working as a driver and operator of a tip truck when the tailgate of his tip truck fell and landed on his foot. The appellant brought a claim for damages against his employer, Trades & Labour Hire Pty Ltd (the first respondent) and his host employer, Gold Coast City Council (the second respondent) in relation to his personal injuries sustained in the incident.
The Decision at Trial
The trial judge found in favour of the respondents. His Honour found that the respondents’ system of maintenance and inspection were reasonable and would not have identified the defect in the hinge pin of the tip truck. The trial judge further concluded that the appellant knew that he ought to have swung the tailgate completely out of the way before attempting to discharge the relevant load and that he was required to report any damaged equipment to the second respondent.
The trial judge found that none of the deficiencies in the system of work alleged by the appellant had any causal bearing on the happening of the incident. The appellant was very experienced and knew all he needed to know to correctly assess the load, discharge it properly and to stay well clear of the hanging tailgate.
The Issues on Appeal
The appellant appealed the decision on the basis that the trial judge erred in finding that it was not reasonably foreseeable that a driver, like the appellant, may be at risk of injury, erred in finding that the respondents had not breached their duty of care by failing to provide a safe system of work, failed to provide adequate reasons for rejecting the evidence of the appellant’s expert engineer, Roger Kahler, and applying the incorrect test for causation.
The Decision on Appeal
The Court of Appeal held that there was a duty of care owed to the appellant in circumstances where there was a reasonably foreseeable risk of injury arising from poor operator procedure in failing to have a proper system in place in relation to tipping procedures and poor training as to the appropriate steps to be taken in the event of damage to the truck.
The Court of Appeal also held that the trial judge erred in not finding that the respondents breached their respective duties of care by failing to devise and implement a procedure to instruct drivers as to the type of load that could be discharged under the tailgate. However, it was held that even if proper instruction had been given, the appellant made an erroneous assessment of the load and training would not have prevented this error. There was a failure by the appellant to establish causation.
In respect of Mr Kahler’s evidence, the Court of Appeal concluded that the trial judge was entitled to consider the practicality of the instruction proposed by Mr Kahler in the context of the appellant’s experience.
Accordingly, the Court of Appeal dismissed the appellant’s appeal.
Implications for you
Employers and host employers are unable to solely rely on the experience of employees and need to provide training and instructions as to the specific requirements of the position. Further, this decision again reiterates that plaintiffs need to establish that any breach of duty was causative of the subject injury and damage.