Acciarito v Anthony Parcel Services Pty Ltd
[2022] VSCA 13
•11 February 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0061
| JOHN ACCIARITO | Applicant |
| v | |
| ANTHONY PARCEL SERVICES PTY LTD (ACN 144 513 771) | Respondent |
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| JUDGES: | BEACH, NIALL JJA and GORTON AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2022 |
| DATE OF JUDGMENT: | 11 February 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 13 |
| JUDGMENT APPEALED FROM: | [2021] VSC 78 (Keogh J) |
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NEGLIGENCE – Personal injury – Transport accident – Whether duty of care owed by principal to delivery driver working for independent contractor – Delivery driver injured in course of work when delivery van rolled from position in which he parked it – Whether principal owed duty of care to instruct/train experienced driver in the operation of delivery van – Causation – Whether instruction or training would have resulted in driver securing vehicle so it would not roll – Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 – Occupational Health and Safety Regulations 2007, regs 3.5.1 and 3.5.23 – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram QC with Mr J J Fitzpatrick | Slater & Gordon Ltd |
| For the Respondent | Mr J Ruskin QC with Mr B W Jellis | Solicitor to the Transport Accident Commission |
BEACH JA
NIALL JA
GORTON AJA:
John Acciarito (‘the plaintiff’) worked as a delivery driver for Anthony Parcel Services Pty Ltd (‘the defendant’) performing deliveries for Australia Post. However, he was not an employee of the defendant. He worked for his own company, ASG Sixty One Pty Ltd (‘ASG Sixty One’), which invoiced the defendant for his work. The defendant supplied a Renault Trafic van (‘the Renault Trafic’ or ‘the van’) for the plaintiff to use when performing the delivery work. The Renault Trafic was fitted with a quick-shift semi-automatic transmission which, unlike a fully automatic transmission, had no Park function/position on the gear shifter.
On 21 May 2015, the plaintiff made a delivery for the defendant at residential premises in Montmorency (‘the premises’). In order to make the delivery, the plaintiff drove the Renault Trafic to the top of a steep driveway at the premises and then turned the van to the right to park on a gravel area which was sloped back down the driveway. He got out of the van. He left the engine on. He said that he put the van in neutral, and applied the handbrake ‘as high as it would go’.
After delivering the parcel, the plaintiff returned to the van. He opened the front passenger door, intending to organise the last four or five parcels he had to deliver that day. While standing at the open passenger door, the plaintiff said that he noticed the van was accelerating or revving and vibrating. The plaintiff described the van jolting about a centimetre backwards, and jolting a second time, before it then ‘just took off’. The plaintiff was struck by the van and its front passenger door as it moved backwards down the slope, and he was caught between the van and a retaining wall causing him to fall and be run over by the van (‘the accident’). As a result of the accident, the plaintiff suffered serious injuries to his right arm, left shoulder and cervical spine.
In the proceeding at first instance, the plaintiff claimed damages from the defendant alleging that his injuries were caused by the negligence of the defendant and/or by the breach of a statutory duty owed to him by it. The breach of statutory duty pleaded by the plaintiff was an alleged breach of reg 2.1.2 of the Occupational Health and Safety Regulations 2007 (‘the OH&S Regulations’).
The plaintiff’s proceeding was heard by a judge of the Trial Division over five days in August and September 2020. In final address, in addition to identifying reg 2.1.2 of the OH&S Regulations as ‘the pleaded obligation’, senior counsel for the plaintiff made a passing reference to reg 3.5.23 (about which we will say more below).
On 12 March 2021, the judge dismissed the plaintiff’s proceeding, in accordance with reasons published on 25 February 2021.[1] In summary, the judge:
·did not accept that the defendant breached any duty of care it owed to the plaintiff;[2]
·rejected the plaintiff’s claim on causation,[3] concluding that the cause of the accident was the plaintiff’s failure to properly apply the handbrake, combined with his choice of where he parked the Renault Trafic;[4] and
·rejected the plaintiff’s claim for breach of statutory duty.[5]
[1]Acciarito v Anthony Parcel Services Pty Ltd [2021] VSC 78 (‘Reasons’).
[2]Ibid [74], [79].
[3]Ibid [76], [79].
[4]Ibid [77].
[5]Ibid [82].
The plaintiff now seeks leave to appeal. His proposed grounds of appeal are as follows:
1The judge failed to correctly apply Stevens v Brodribb Sawmilling Company Pty Ltd[6] to the facts in the case.
2On the proper application of Stevens the judge ought to have found that [the defendant] owed to [the plaintiff] a duty of care which on the facts in the case was breached and that such breach was a cause of injury, loss and damage to [the plaintiff].
3The judge failed to correctly apply reg 3.5.23 of [the OH&S Regulations] to the facts of the case.
4On the proper application of reg 3.5.23 of [the OH&S Regulations] the judge ought to have found that [the defendant] was in breach of a statutory duty owed to [the plaintiff] which breach was a cause of injury, loss and damage to [the plaintiff].
[6](1986) 160 CLR 16 (‘Stevens’).
Background facts
The plaintiff commenced performing delivery work for the defendant in October 2014. At all relevant times, the defendant was a company operated by Anthony Murdica.
For approximately six years prior to the defendant’s engagement of ASG Sixty One and the plaintiff, the plaintiff had performed delivery work for a different organisation, Lightning Deliveries. During the years he worked for Lightning Deliveries, the plaintiff drove a Mercedes van which had an automatic transmission. Prior to performing delivery work for the defendant, the plaintiff had not driven a Renault Trafic or any semi-automatic vehicle which did not have a Park function/position on the gear shifter.
Expert evidence given at trial was that, ‘mechanically’, the Renault Trafic had a manual transmission — although it had no clutch pedal and its gear changes were performed by a ‘mechanical robotic system’. The gear shifter had a central position, to which it would always revert.
To the left of the gear shifter there was the symbol ‘A/M’. When the engine is running, automatic mode was selected by default. Pushing the gear shifter to the left allowed the driver to change between the van’s automatic and manual modes of operation.
Forward from the gear shifter’s central position, there was a plus sign. Down from the centre position there was a minus sign. In manual mode, pushing the gear shifter forward in the direction of the plus sign caused the van to move up a gear. In the same mode, pulling the gear shifter back in the direction of the minus sign caused the van to move down a gear.
To the right of the gear shifter’s centre position, there was the symbol ‘N’, and slightly down from that letter was the symbol ‘R’. Moving the gear shifter to the right placed the van in neutral. Reverse was engaged by moving the gear shifter to the right and then down.
Because the gear shifter always reverted to the central position, its position gave no indication to the driver as to which gear was engaged. A dashboard display indicated whether the transmission was in a particular selected gear, operating in automatic mode, or in neutral.
The expert evidence at trial was that there were two mechanisms which could be used to secure the Renault Trafic in position when it was parked. These were the handbrake, and leaving the transmission in gear. The transmission could be left in gear by applying the footbrake, moving the gear shifter to plus and then turning the engine off. However, if the Renault Trafic was parked with the engine idling, then (unlike a fully automatic vehicle which could safely be left idling with the transmission in Park and the handbrake applied), ‘it only had one level of assurance, the handbrake’.[7]
[7]Reasons [41].
The plaintiff performed work for the defendant two days a week. A colleague, Rachel Orford, worked the other three days operating the Renault Trafic. From the time he first started performing delivery work (that is, prior to performing work for the defendant), the plaintiff’s practice was to leave the engine of his vehicle running while doing a delivery. The evidence at trial was that this practice was the norm, in order to save wear and tear on the vehicle. Shortly after he started doing delivery work for the defendant, the plaintiff raised the issue of whether he should switch off the engine when doing a delivery. Mr Murdica told the plaintiff ‘to follow what he had been doing at Lightning Deliveries’.
On 19 March 2015, Australia Post issued a document headed ‘Tool Box Talk script’ (‘the Tool Box Talk’). The topic of the Tool Box Talk was driver safety and parcel security. The Tool Box Talk said, amongst other things, that when delivering, a driver should always apply the handbrake, lock the vehicle (never leaving an unattended vehicle unlocked) and take the keys (never leaving keys in a vehicle when unattended).
On 29 April 2015, Australia Post issued a document headed ‘SAFETY ALERT!’ (‘the Safety Alert’). Under the sub-heading ‘Reasons for the Alert’, the rationale for the safety alert being given was identified as ‘[t]o remind staff of the risks associated with not applying the handbrake in vehicles’. The Safety Alert noted that, ‘in recent times we have seen incidents involving unattended runaway vehicles’. Under the heading ‘Recommended Actions’, the following was written:
Comply with all standard vehicle operating requirements including:
• Applying the handbrake in all vehicles.
• For vehicles with automatic transmissions place the vehicle into park, or + for Renault vans.
• For manual transmission vehicles place the vehicle into first gear.
• Switch off the motor and remove the key from the ignition to render it inoperable.
• If parked parallel to the kerb turn the wheels to the left.
• Use wheel chocks, if required.
DO NOT
• Override or fail to comply with the safety warning device of a vehicle.
• Leave a vehicle unattended without applying the hand brake.
In evidence, the plaintiff denied ever receiving a copy of the Safety Alert. He did, however, admit receiving a document, headed ‘Staff Information Session (Tool Box Talk) Parcel Interface Unit [P&TBU, M&ND]’, from the defendant. The judge referred to this document as ‘the Staff Information’. The Staff Information was issued in May 2015, and given to the plaintiff by the defendant prior to the accident. It was signed by the plaintiff, Ms Orford, another driver and Mr Murdica. The topic of the Staff Information was:
Security of parcels while delivering, Hygiene, Emergency & evacuation procedures, SAFETY ALERT – Handbrakes, LSE incident, protection of personal information, Large parcel ULD hygiene & faulty ULD gates.
Mr Murdica’s evidence was that initially he left the Staff Information at the defendant’s depot for subcontractors to sign. He said that when he left the Staff Information at the depot he attached to it other Australia Post documents for the subcontracted drivers to read. He said that the documents he attached included the Tool Box Talk and the Safety Alert. He could not say, however, whether the Safety Alert was still attached to the Staff Information when it was provided to, and signed by, the plaintiff.
The judge’s reasons
The judge commenced his reasons for judgment by identifying the issues in dispute between the parties.[8] He noted that the defendant contended that ‘the plaintiff alone was responsible for the safe management and control of the Renault Trafic, and that this included familiarising himself with the vehicle controls and parking safely’.[9] The judge then set out the factual background,[10] the circumstances of the accident[11] and a description of the way in which the Renault Trafic’s transmission and gear shifter operated.[12]
[8]Ibid [1]–[7].
[9]Ibid [5].
[10]Ibid [8]–[31].
[11]Ibid [32]–[38].
[12]Ibid [39]–[42].
Under the heading, ‘The Immediate Cause of the Accident’, the judge analysed the evidence about the circumstances and cause of the accident.[13] The judge said that he did not accept the plaintiff’s evidence as to his observations immediately before the accident (being the plaintiff’s evidence that he noticed the van was accelerating or revving and vibrating and that there were two jolting episodes before the van ‘just took off’). Having not accepted this part of the plaintiff’s evidence, the judge concluded that the most likely explanation for the accident was that the van rolled backwards because it was ‘parked on a slope with the handbrake insufficiently applied’.[14]
[13]Ibid [43]–[51].
[14]Ibid [47].
After setting out the submissions of the plaintiff and the defendant,[15] the judge turned to the question of whether the defendant owed the plaintiff a duty of care. Under the heading, ‘Authorities and Principles’, the judge said that whether a principal in the position of the defendant owed a duty to take reasonable care to avoid or minimise the risk of injury to a person who works for a subcontractor engaged to perform work depended on the relationship between the parties and all of the circumstances of the case.[16] His Honour footnoted three authorities in support of this proposition, including Stevens.[17] He then referred in some detail to three relevant decisions of the New South Wales Court of Appeal, namely, Rockdale Beef Pty Ltd v Carey,[18] Sydney Water Corporation v Abramovic[19] and Wooby v Australian Postal Corporation.[20]
[15]Ibid [52]–[62].
[16]Ibid [64].
[17]In particular, the judgment of Brennan J: Stevens (1986) 160 CLR 16, 47–8.
[18][2003] NSWCA 132.
[19][2007] NSWCA 248.
[20][2013] NSWCA 183.
Under the heading, ‘Analysis’, the judge then dealt with the issues in dispute between the parties. His Honour concluded that Mr Murdica ‘acquiesced to and encouraged delivery drivers to leave the engine of the delivery van running when making deliveries when it was safe to do so’.[21]
[21]Reasons [69].
The judge noted that, in their evidence, the plaintiff and Ms Orford ‘accepted it was for them to choose where to park when making a delivery, and their responsibility to ensure the van was secure and did not move’.[22] The judge then said:
While [the defendant] was in a position to appreciate the risk in general terms to those nearby if a delivery van were to move unexpectedly and out of control from a parked position, it did not know where drivers parked their van when making deliveries, or what steps they took to secure it safely in that position. Those were matters in the control of the delivery driver which, in the case of the accident, was [the plaintiff]. In the circumstances [the plaintiff] should have appreciated of (sic) the risk of harm.
I accept that [the plaintiff] did not receive training or instruction from [the defendant] in relation to the operation of the Renault Trafic gear shifter, and that he did not know the function of the plus or minus, or that one means of securing the vehicle in position was to use that function to place it in gear before turning off the engine. However, I do not accept that [the defendant] breached a duty to [the plaintiff] by failing to provide training or instruction in relation to that aspect of the Renault Trafic controls, including by drawing to his attention the relevant part of the Safety Alert. [The plaintiff] was an experienced driver of private and commercial vehicles. He well understood that it was his responsibility as driver to acquaint himself with and safely respond to the different functions or idiosyncrasies of the vehicle under his control.[23]
[22]Ibid [73].
[23]Ibid [73]–[74].
The judge then referred to Ms Orford’s evidence that when she first drove the Renault Trafic she did not know how to use the gear shifter, so she asked a previous driver of the vehicle, who gave her some instructions. Ms Orford’s evidence was that one way of securing the Renault Trafic was ‘to leave the gears in plus with the ignition turned off and the handbrake applied, which she would do if parked on a really steep slope’.[24]
[24]Ibid [75].
In rejecting the plaintiff’s case on causation, the judge said:
Further, I am not satisfied that [the plaintiff] has established that had he been aware of the plus/minus function, or had the Safety Alert been provided to him, that when parking to make a delivery he would on each occasion have placed the transmission in gear, turned the engine off and applied the handbrake. [The plaintiff] was an experienced delivery driver who had been using the same system for parking his van for about six years before the accident. His evidence was that other drivers operated the same way. In the circumstances of this case I am not convinced that had [the plaintiff] been provided with the Safety Alert and been made aware how to use the plus/minus function on the gear shifter, he would have invariably, and when he parked at the residence, changed the system he used for parking and securing the van.
As an experienced driver [the plaintiff] knew that his means of securing the vehicle safely when parked were limited to the position in which he parked and application of the handbrake. The evidence of Mr Lewis was that the Renault Trafic should have remained secure in position where it was parked at the residence if the handbrake was properly applied by [the plaintiff]. I do not accept [the plaintiff]’s submission that his failure to properly apply the handbrake amounted to no more than mere inadvertence on his part. He was aware of the need to secure the van where he parked it. He was in the driver’s seat and had the means immediately available to achieve that outcome. I conclude that the cause of the accident was [the plaintiff]’s failure to properly apply the handbrake, combined with the choice of where he parked the van.
Finally, I accept the submission of [the defendant] that the reason for the Safety Alert was to remind drivers of delivery vans of the risks associated with not applying the handbrake in vehicles. [The plaintiff] understood the Staff Information was a reminder to apply the handbrake when leaving your delivery van. By signing the Staff Information he acknowledged he had received and understood the handbrake reminder. [The defendant] was entitled to rely on [the plaintiff] having received and understood the handbrake reminder.[25]
[25]Ibid [76]–[78].
The judge then turned to the breach of statutory duty claim. His Honour observed that the plaintiff relied upon regs 2.1.1, 2.1.2 and 3.5.23 of the OH&S Regulations, before observing that reg 2.1.2 had been revoked and was not in force at the time of the accident.[26] He then said that, for the reasons he had given with respect to the negligence claim, ‘the statutory breach claim must fail’.[27] His Honour concluded:
As a licensed driver and experienced delivery driver [the plaintiff] appreciated, or should have appreciated, the risks associated with leaving his vehicle inadequately secured when parked. If it was necessary, [the defendant] provided the Staff Information as a reminder to [the plaintiff] about the risk and the need to properly apply the handbrake. The means of addressing the risk were the functions of the Renault Trafic over which [the plaintiff] had control. [The plaintiff] agreed it was his responsibility to familiarise himself with the functions and idiosyncrasies of any vehicle he drove. This of course extended to his driving of the Renault Trafic, with which he had experience for about seven months before the accident. [The plaintiff] was responsible for choosing where to park the van, and for ensuring that it was secure in that position when he left it. The cause of the accident was [The plaintiff]’s failure to sufficiently apply the handbrake to prevent the van from moving, combined with the position in which he chose to park.[28]
[26]Ibid [81].
[27]Ibid [82].
[28]Ibid.
Proposed grounds 1 and 2: negligence and causation
Plaintiff’s contentions
The plaintiff submitted that, because he was not an employee of the defendant, the ‘correct approach’ was to determine whether a duty of care was owed to him, then the content of that duty, then whether there was a breach of the duty and, if so, whether that breach was a cause of the plaintiff’s injuries. The plaintiff submitted that the defendant ‘retained a very high degree of control’ over the system of work. Relying upon passages in the judgments of Mason J and Brennan J in Stevens,[29] the plaintiff submitted that the defendant owed him a duty to provide training and/or instruction in respect of the function and operation of the gear shifter, and in particular the method of securing the Renault Trafic by putting the gear shifter in plus and turning the ignition off.
[29](1986) 160 CLR 16, 31 (per Mason J) and 47–8 (per Brennan J).
The plaintiff submitted that the judge’s reliance upon the plaintiff’s experience as a delivery driver was misplaced because, before he was engaged by the defendant, the plaintiff had never driven a vehicle with a similar transmission to that found in the Renault Trafic. It was submitted that the defendant owed the plaintiff a duty to provide training in the safe method and operation of the plus function as a means of securing the Renault Trafic in addition to the operation of the handbrake — and that the judge erred in not so concluding.
On the issue of causation, the plaintiff submitted that it was ‘nothing more than speculation to suggest that had he been trained and supervised in the operation of this mechanical feature, he would not have applied it in accordance with the safety information with which [he] ought to have been supplied and instructed by [the defendant]’. The plaintiff submitted that, contrary to the judge’s conclusion, the evidence showed that if the plaintiff had been instructed and trained in the use of the plus function, and then told to use it when parking the van, the plaintiff would have complied. It was then submitted that had the defendant discharged the duty of care which he had owed the plaintiff, it was likely that the accident would never have occurred — and that the judge erred in not so concluding.
Defendant’s contentions
The defendant submitted that the starting point of the analysis was that the plaintiff was not an employee of it. Rather, he was a contractor. It was then submitted that the judge correctly stated the relevant principles by reference to the applicable authorities, including Stevens.
The defendant submitted that the gear shift on the Renault Trafic was not hidden, and it was not for the defendant to expect that an experienced driver (who had familiarised himself with the van and had driven it for a number of months) would be ignorant of a visible feature of its operation and not take any step to ask about it.
On the issue of causation, the defendant submitted that there was no evidence that leaving the van in gear would have prevented the accident. The defendant then observed that the plaintiff gave no evidence that he would have followed the Safety Alert had it been brought to his attention. While the defendant accepted that the failure to give such evidence was not determinative, it submitted that, in the absence of other evidence, the failure was significant. It further submitted that, in the absence of any direct evidence, it was well open to the judge to conclude that the plaintiff had not proven that he would have invariably, or on the occasion of the accident, followed each of the steps described in the Safety Alert.
Proposed grounds 1 and 2: analysis
We see no error in the judge’s conclusion that the plaintiff was an experienced driver of private and commercial vehicles, who well understood that it was his responsibility to acquaint himself with, and safely respond to, the different functions of the Renault Trafic.[30] Indeed, in evidence the plaintiff accepted that, on each occasion when he drove a new or different vehicle, it was up to him as the licensed driver to work out how to operate the vehicle and, in respect of a new vehicle’s idiosyncrasies, ‘to learn those idiosyncrasies and cater for them and operate the vehicle accordingly’.
[30]Reasons [74].
While (as the judge found)[31] Mr Murdica acquiesced to and encouraged delivery drivers to leave the engine of the delivery van running when making deliveries when it was safe to do so, as the judge observed, the plaintiff also accepted that it was for him to choose where to park when making a delivery, and his responsibility to ensure that the van was secure and did not move.[32] This was not a case involving an employee merely complying with a mandatory instruction from an employer.
[31]Ibid [69].
[32]Ibid [73].
The judge accepted that the plaintiff did not receive any training or instruction from the defendant in relation to the operation of the Renault Trafic gear shifter, and that the plaintiff did not know that one means of securing the vehicle in position was to move the gear shifter to plus before turning off the engine.[33] The judge appears also to have accepted that the Safety Alert (being the document which described the plus function for securing a Renault Trafic) was not brought to the attention of the plaintiff.[34] Nevertheless (and notwithstanding Mr Murdica’s inability to say whether the Safety Alert was attached to the Staff Information at the time it was signed by the plaintiff) the judge concluded that the defendant was entitled to rely on the plaintiff having received and understood ‘the handbrake reminder’.[35] In that respect, the judge had earlier referred to the plaintiff’s evidence that when he signed the Staff Information he understood that he was being given a handbrake alert, which he understood to be a reminder that you should always apply the handbrake when you left your vehicle.[36]
[33]Ibid [74].
[34]Ibid [74], [76].
[35]Ibid [78].
[36]Ibid [24]
His Honour’s reference to ‘the handbrake reminder’, however, is ambiguous. In the same paragraph of the Reasons, his Honour said that the reason for the Safety Alert ‘was to remind drivers of delivery vans of the risks associated with not applying the handbrake in vehicles’, before going on to say that the plaintiff understood that the Staff Information ‘was a reminder to apply the handbrake when leaving the delivery van’. Thus it is not entirely clear whether the judge’s reference to ‘the handbrake reminder’ is a reference to the Safety Alert or the Staff Information.
In essence, the judge found against the plaintiff on the negligence cause of action for two reasons. First, the judge held that, contrary to the plaintiff’s submissions, the defendant did not owe a duty of care to provide the plaintiff (an experienced driver of private and commercial vehicles) with instruction or training concerning the operation of the Renault Trafic’s gear shift. Secondly, the judge was not persuaded that even if the plaintiff had been made aware of the plus function on the gear shift (and/or been provided with the Safety Alert), the plaintiff would then have placed the Renault Trafic’s transmission in gear and turned the engine off and applied the handbrake when he made his delivery at the premises shortly before the accident.
The plaintiff contended that the first of the judge’s conclusions was erroneous because, while the plaintiff had considerable experience driving other vehicles, he had never driven a Renault Trafic or vehicle with a similar transmission prior to the defendant engaging his services through his company, ASG Sixty One. The plaintiff contended that the second conclusion was erroneous because the evidence showed that the plaintiff was an efficient worker, who followed rules and complied with recommendations.
In our view, there was no error in either of the judge’s central conclusions. First, it is not to the point that the plaintiff had not driven a Renault Trafic or vehicle with a similar transmission prior to his company being engaged by the defendant. On the evidence, the judge was correct to describe the plaintiff as an experienced driver — even if he had not driven this particular vehicle (or its type) before. The defendant was entitled to assume that, if the plaintiff was unaware of any aspect of the operation of the van, he would have asked someone or consulted the manual. So far as the van’s manual is concerned, for completeness, we note that an online version of the Renault Trafic’s owner’s manual, obtained by the plaintiff’s expert contained the instructions about the operation of the gear shift which the plaintiff contends that the defendant was negligent in not providing to him.
Nothing said by Mason J or Brennan J in Stevens (and in particular nothing said in the passages relied upon by the plaintiff)[37] required the judge to come to a different conclusion than the one he came to on the issue of duty. What the High Court (and in particular Justice Mason and Justice Brennan) said in Stevens about the obligations and duties of an entrepreneur who engages independent contractors to do work which might readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work led to the Court concluding in that case that the defendant (the sawmilling company) owed a general common law duty of care to an independent trucker on the facts as found in that case.
[37]Stevens (1986) 160 CLR 16, 31 (per Mason J) and 47–8 (per Brennan J).
The present case, however, does not contain the same or like factual elements as those in Stevens. The facts in the present case are much simpler than those which the High Court had to consider. In Stevens, the sawmilling company engaged tree fellers, sniggers and truckers to remove timber from a logging area. The very operation required significant coordination between the parties engaged by the sawmilling company, together with the giving of directions and the supervision of operations. There was a need to give directions as to when and where work was to be done, and also to coordinate the various activities. In such circumstances, the ‘entrepreneur’ (sawmilling company) who engaged the independent contractors (tree fellers, sniggers and truckers) owed duties of care to them. Stevens is a far cry from the present case involving the engagement of an independent driver who did not require supervision, and who could reasonably have been expected by the defendant (at least by the time of the accident, some seven months into his engagement) to have been well familiar with the operation of the Renault Trafic. The bases for that reasonable expectation included the general experience of the plaintiff as a commercial driver, the specific experience over seven months with the Renault Trafic vehicle, the relatively mundane nature of the task, the plaintiff’s acknowledgment of the Staff Information and his failure to raise any issues or concerns about his ability to safely drive the vehicle.
Secondly, with respect to causation, it is to be noted that in evidence, the plaintiff described the area in which he parked as, ‘probably about 90 per cent level’ and ’90 per cent was flat, towards the front; but the back was about, there was a bit of a slope there’. However, and notwithstanding instructions he had received about the use and application of handbrakes, the plaintiff parked the van on this modest slope ‘with the handbrake insufficiently applied’.[38]
[38]Reasons [47].
As with the first of the judge’s central conclusions, we see no error in the judge’s second conclusion that he was not satisfied that if instruction or training had been provided then the plaintiff would have put the van in gear and turned off the ignition. In order to succeed on the negligence claim, the plaintiff had to satisfy the judge on the balance of probabilities that if he had received the instruction or training he now says should have been provided then he would have placed the vehicle in gear and turned the ignition off before making his delivery at the premises. Given that the area in which the plaintiff parked was 90 per cent level with a ‘bit of a slope’ towards the back, there does not seem to us to be any basis upon which it might be contended as a matter of probability that the plaintiff would have placed the vehicle in gear and turned the ignition off if he had received instruction/training in the operation of the plus function.
It follows from the above that proposed grounds 1 and 2 must be rejected.
Proposed grounds 3 and 4: breach of statutory duty
The breach of statutory duty claim as pleaded and run at trial
The relevant pleading containing the plaintiff’s claim at trial was the plaintiff’s further amended statement of claim, filed 19 June 2020. In that pleading, the plaintiff pleaded a breach by the defendant of duties allegedly owed pursuant to regs 2.1.1 and 2.1.2 of the OH&S Regulations. The plaintiff pleaded that reg 2.1.1 required the installation, use and maintenance of risk control measures and reg 2.1.2 required the provision of information, instruction and training in the safe performance of work. The plaintiff did not plead any breach of reg 3.5.23.
In his opening address at trial, the plaintiff’s senior counsel described the plaintiff’s ‘alternate case is based on the breach of [the OH&S Regulations], in particular reg 2.1.1 concerning installation, use and maintenance of risk control measures and reg 2.1.2 requiring the provision of information, instruction and training’. Again, no reference was made to reg 3.5.23.
The plaintiff’s expert, Mr Lewis, provided a report in which he referred to reg 3.5.1. But the paragraphs of his report in which he did so were not admitted into evidence.
In his final address, after referring to reg 1.1.8 and ss 21 and 35 of the Occupational Health and Safety Act 2007, the plaintiff’s senior counsel submitted:
We say that the vehicle supplied is plant within reg 3.5.1. We say that a hazard identification in relation to such plant would be required in accordance with reg 3.5.23. And that brings us back to what I think is the pleaded obligation — provision of information, instruction and training, which is in reg 2.1.2. So that’s the statutory scheme of the regulations that we rely on.
No further reference was made to the OH&S Regulations. There was no discussion about the applicability of reg 3.5.23, or its proper construction or application. Indeed, from the transcript, it does not appear that his Honour was even provided with a copy of the relevant regulations in force at the time of the accident.
The OH&S Regulations
Regulation 2.1.1 did not impose any statutory duty on any person. The operative part of the regulation merely provided:
A person who is required by these Regulations to use any particular measure to control risk must ensure that the measure is properly installed (if applicable) used and maintained.
Regulation 2.1.2 had no relevant operation in this case because, as the judge noted, that regulation had been revoked and was not in force at the time of the accident.[39]
[39]Reasons [81].
Regulation 3.5.23 provided:
3.5.23 Hazard identification
(1) Subject to subregulation (2), an employer must, so far as is reasonably practicable, identify all hazards to health and safety associated with the installation, commissioning, decommissioning, dismantling, erection and use of plant and the systems of work associated with that plant.
(2) The employer's responsibilities under subregulation (1) only relate to the hazards associated with plant specifically applicable to the workplace where the plant is used or located.
Regulation 3.5.23 is contained within pt 3.5 of the OH&S Regulations. Regulation 3.5.1 defines the types of plant to which pt 3.5 (and thus reg 3.5.23) applies. Regulation 3.5.1 relevantly provided:
3.5.1 Application of Part
(1) This Part applies only to the following types of plant —
(a) …
(b) … plant that lifts or moves people or materials (other than a ship, boat, aircraft or, except as provided in subregulation (4), a vehicle designed to be used primarily as a means of transport on a public road or rail);
…
…
(4) Division 5 applies to a vehicle designed to be used primarily as a means of transport on public roads or rail, if that vehicle is being used in a workplace other than a public road or rail.
Parties’ contentions
The plaintiff contended that the purpose of the OH&S regulations was the furtherance of industrial safety and that, as such, they were to be construed so as to give the fullest relief which the fair meaning of their language would allow. In support of these contentions, the plaintiff relied upon R v ACR Roofing Pty Ltd,[40] Papadopoulos v MC Labour Hire Services Pty Ltd [No 1][41] and Deal v Kodakkathanath.[42]
[40](2004) 11 VR 187, 202-203 [43].
[41][2009] VSC 175, [18].
[42](2016) 258 CLR 281.
The plaintiff submitted that the defendant, in contravention of its statutory duty, failed to identify so far as reasonably practicable hazards to health and safety associated with the use of the Renault Trafic, and that the judge erred in not so concluding. He also submitted that the judge ‘failed to comply with the objects of [the OH&S Regulations]’ — which objects included ‘providing for health and safety in relation to workplaces and hazards, activities and things at workplaces’.[43] Additionally, the plaintiff submitted that the defendant was obliged to instruct and train him in the operation of the plus mechanism ‘because this was a specific directive from Australia Post to [the defendant] which was not passed on to [the plaintiff] as a means of safely using plant’.
[43]Cf reg 1.1.1(a)(i) of the OH&S regulations.
In response, the defendant noted that the plaintiff had advanced only a ‘very limited final submission’ addressed to the statutory duty claim. The defendant contended that, in the context of that limited final submission, there was no error by the judge in his treatment of the plaintiff’s claim for breach of statutory duty.
Additionally, the defendant sought to rely (out of time) upon a proposed notice of contention in which it sought to argue that reg 3.5.23 had no application in this case because the Renault Trafic was not plant within the meaning of reg 3.5.1; and that, in any event, there was no breach of reg 3.5.23 because of the operation of sub-reg 3.5.23(2). The plaintiff opposed the defendant having leave to file its proposed notice of contention out of time submitting, amongst other things, that the arguments in the proposed notice of contention were not run at trial.
Proposed grounds 3 and 4: analysis
No allegation that the defendant breached reg 3.5.23 was ever pleaded by the plaintiff. Nor was any such breach opened by the plaintiff’s senior counsel at the commencement of the trial. The first reference to reg 3.5.23 was in the plaintiff’s final address. The reference (which we have set out in full at [50] above) was desultory, to say the least, and contrasted the regulation to ‘the pleaded obligation’ — being reg 2.1.2.
Notwithstanding his Honour’s consideration of reg 3.5.23 (perhaps due in part to his discovery after the trial concluded that the only regulations pleaded by the plaintiff[44] either did not impose any statutory duty on any person or were not in force), we are not persuaded that any claim involving a breach of reg 3.5.23 was properly on foot at trial. The following matters appear to confirm this.
[44]Regulations 2.1.1 and 2.1.2.
First, the only submission made by the plaintiff’s senior counsel in relation to reg 3.5.23 in his final address was that a hazard identification ‘in relation to such plant would be required in accordance with reg 3.5.23’. Secondly, no assertion was made that any required hazard identification had not been performed (certainly no such proposition was put to Mr Murdica in cross-examination). Thirdly, there was no discussion of any counterfactual premised on the performance of a hazard identification. Fourthly, there was no argument by either side at trial addressing the proper construction of reg 3.5.1 (and in particular sub-reg (4)) or reg 3.5.23(2).
The judge rejected the plaintiff’s breach of statutory duty claim for the same reasons he gave in rejecting the plaintiff’s case on causation with respect to the negligence claim. We have already concluded that there was no error in his Honour’s conclusion on the issue of causation with respect to that claim. It follows that, even if there was a breach of statutory duty claim based on reg 3.5.23 on foot at trial and that a relevant breach had been established, that claim failed on the issue of causation. Causation not having been established, proposed grounds 3 and 4 must be rejected.
Having rejected proposed grounds 3 and 4, it is not necessary for us to consider the defendant’s proposed notice of contention. However, we would wish to make the following observations concerning regs 3.5.1(4) and 3.5.23(2).
It may be assumed for the purposes of argument that at the time the van was parked at the premises, the premises were a workplace within the meaning of the OH&S regulations and the van was being used in that workplace.[45] Regulation 3.5.23 requires an employer (so far as is reasonably practicable) to identify all hazards to health and safety associated with the use of plant relating to the hazards associated with that plant specifically applicable to the workplace where the plant is in use. Notwithstanding that regulations furthering industrial safety should be given the fullest relief which the fair meaning of their language will allow, it may be doubted that the proper construction of regs 3.5.1(4) and 3.5.23 would require the employer of delivery van drivers to conduct hazard assessments relating to the hazards associated with the use of delivery vans applicable to every domestic premises into which a van might drive for the purpose of making a delivery.
[45]The expression ‘workplace’ is defined in s 5(1) of the Occupational Health & Safety Act 2004 to mean ‘a place, whether or not in a building or structure, where employees or self-employed persons work’. As to the expression having the same meaning in the OH&S regulations, see s 23 of the Interpretation of Legislation Act 1984.
Conclusion
Leave to appeal will be refused.
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