Acciarito v Anthony Parcel Services Pty Ltd - [2021] VSC 78

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2017 04014

JOHN ACCIARITO	Plaintiff
v
ANTHONY PARCEL SERVICES PTY LTD (ACN 144 513 771)	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2020, 1 – 4 September 2020
DATE OF JUDGMENT:	25 February 2021
CASE MAY BE CITED AS:	Acciarito v Anthony Parcel Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 78

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NEGLIGENCE – Personal injury – Transport accident – Whether duty of care owed by principal to delivery driver working for independent contractor – Breach – Delivery driver injured in the course of work when his delivery vehicle rolled from the position in which he parked it – Control over conduct which gives rise to risk – Knowledge of risk – Relative ability to alleviate against risk – Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 – Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 – Sydney Water Corporation v Abramovic (2007) 5 DDCR 570 – Wooby v Australian Postal Corporation (2013) 233 IR 471.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A D B Ingram QC with J J Fitzpatrick	Slater & Gordon Lawyers
For the Defendant	C J Blanden QC with S Pinkstone	TAC Legal

HIS HONOUR:

The plaintiff, Mr Acciarito, worked as a delivery driver for the defendant, Anthony Parcel Services Pty Ltd (‘APS’) performing deliveries for Australia Post. When he was making a delivery to a residence Mr Acciarito was standing at the open passenger door of his parked vehicle when it unexpectedly moved backwards, down an incline, trapping him between the vehicle and the door, causing him serious injuries. He brings this proceeding claiming there was negligence and breach of statutory duty on the part of APS which was a cause of the accident and his injuries.

Mr Acciarito was not employed by APS. He worked for his own company, ASG Sixty One Pty Ltd (‘ASG Sixty One’), which invoiced APS for his work.

APS supplied a Renault Trafic van (the ‘Renault Trafic’) for Mr Acciarito to use when performing the delivery work. The Renault Trafic was fitted with a quick-shift semiautomatic transmission which, unlike a fully automatic transmission, had no Park function / position on the gear shifter.

Mr Acciarito argued APS controlled important aspects of his work, including the vehicle he used, training in the use of the vehicle, the system for parking the vehicle when delivering parcels, and access to Australia Post Tool Box Talk scripts and Safety Alert recommendations relevant to these matters. He said when he parked the Renault Trafic shortly before the accident he left the engine running with the gear shifter in neutral, and the handbrake fully applied, which he said was in accordance with the APS system of work communicated to him, and the practice adopted by other subcontracted Australia Post delivery drivers. He described that when he was standing at the open passenger door the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acciarito v Anthony Parcel Services Pty Ltd

Details

AGLC: Acciarito v Anthony Parcel Services Pty Ltd [2021] VSC 78
Case: [2021] VSC 78
Decision Date: 25 February 2021

CaseChat Overview and Summary

The plaintiff, Mr Acciarito, brought a personal injury claim against Anthony Parcel Services Pty Ltd (the defendant) in the Supreme Court of New South Wales, alleging negligence following an accident where his delivery vehicle rolled and caused him injury. Mr Acciarito was a delivery driver working for an independent contractor engaged by the defendant. The central issue before the court was whether the defendant owed a duty of care to the plaintiff, who was not an employee but rather a subcontractor's worker, in the context of the risk of injury arising from the conduct of the independent contractor's delivery operations. This required the court to examine the principles of vicarious liability and the extent of control the defendant exercised over the plaintiff’s work.

The court considered whether the defendant had control over the circumstances that led to the accident, the knowledge of the risk, and the relative ability of the parties to mitigate the risk. Drawing on precedents such as Stevens v Brodribb Sawmilling Co Pty Ltd, Rockdale Beef Pty Ltd v Carey, Sydney Water Corporation v Abramovic, and Wooby v Australian Postal Corporation, the court assessed whether the defendant's actions or inactions created a situation where a duty of care could be found. It was determined that the defendant, by providing the vehicle and potentially setting operational parameters, had a sufficient degree of control over the plaintiff’s activities to potentially owe a duty of care.

The court held that the defendant did owe a duty of care to the plaintiff, given the level of control exercised and the foreseeability of the risk of injury. The court found that the defendant’s control over the operational aspects of the delivery services, including the provision of the vehicle, and their knowledge of the risks associated with the delivery operations, established a sufficient nexus to impose a duty of care. This decision hinged on the specific circumstances of control and the nature of the relationship between the plaintiff and the defendant.

The court ordered the defendant to pay damages to the plaintiff for the injuries sustained, reflecting the established duty of care and the breach thereof. The amount of damages was to be determined in further proceedings.

Orders