Acciarito v Anthony Parcel Services Pty Ltd
[2021] VSC 78
•25 February 2021
| 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 engine seemed to rev and the vehicle jerked, then started to move backwards, trapping him and causing his injuries.
APS argued 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. APS denied that its system of work was as described by Mr Acciarito, and alleged he and other subcontractors had been made aware of the Australia Post Tool Box Talk scripts and Safety Alert recommendations reminding drivers of the risks associated with not applying the handbrake when parking a vehicle in the course of making a delivery.
The liability issues at trial, which concerned Mr Acciarito’s allegations of negligence and breach of statutory duty against APS, and a defence of contributory negligence, were:
(a) The accident circumstances, and whether the immediate cause of the Renault Trafic moving backwards was that the vehicle somehow came to be in reverse gear, or that the handbrake was not properly applied.
(b) Whether there was an APS system of subcontractors parking vans with the engine left running while engaged in the delivery of parcels.
(c) Whether APS owed a relevant duty to Mr Acciarito in respect of the driving, management and control of the Renault Trafic, in particular when parking to undertake a delivery.
(d) Whether APS breached a common law or statutory duty owed to Mr Acciarito, and whether that breach was a cause of his injuries.
(e) Whether there was contributory negligence by Mr Acciarito.
If Mr Acciarito established breach of duty by APS which was a cause of his injuries, it was also necessary to assess damages for pain and suffering and loss of earning capacity.
Background
Mr Acciarito was born in 1961 and is now aged 59.
He left school after year 11, then completed an insurance broker’s apprenticeship, and worked in that industry until 2000. For the next four or five years he worked in marketing, before commencing with Australia Post delivering depot bags in November 2005.
In 2008 Mr Acciarito began driver delivery work for Mr Kristof at Lightning Deliveries, which contracted to Australia Post. In January 2004 Mr Acciarito and his father had started a company called ASG Sixty One, and he invoiced Lightning Deliveries for his work under the name of his company. He said he sent the invoices fortnightly, and was paid per parcel delivered, other than when he occasionally did some mail sorting work, for which there was an hourly charge. The invoices were for the gross amount charged, with no tax taken out. Lightning Deliveries provided him with a vehicle, and he worked full-time until January 2014, when he reduced his hours to care for his father, who was ill at that time. At the end of March that year he finished work for Lightning Deliveries, apart from occasional relief driving, which he did until June.
Mr Acciarito said when he worked for Lightning Deliveries he drove a Mercedes van which had an automatic transmission. With most deliveries he would leave the van engine on, put the gear shifter in Park, and apply the handbrake. He said he had never been instructed to turn his van off when he was making a delivery, and he observed other drivers using the same system that he used.
Later in 2014, after his father’s health recovered, Mr Acciarito began ringing around the Australia Post contractors seeking work. He had already been replaced at Lightning Deliveries, and there was no work there. He rang Mr Murdica, a director of APS, whom he had met at the Australia Post depot in 2010. About five or six weeks later Mr Murdica responded offering him work each Thursday and Friday, plus other days that became available. He commenced delivery driving for APS in October 2014.
Each morning Mr Acciarito received a text message between 6:00am and 6:30am telling him how many parcels there were for delivery that day. Usually there were between 100 and 200 parcels, which he collected from the Thomastown Australia Post depot between 7:30am and 9:00am. He said the parcels were already in sequence for delivery before he arrived at the depot. It was up to him what time he attended the Australia Post depot each morning, and how he went about his work, but it was his practice to deliver the parcels in the sequence in which they were set out. Mr Acciarito’s delivery area was Montmorency and Lower Plenty.
When he was in the depot Mr Acciarito was required to wear safety boots, but when undertaking deliveries he could wear runners. He was required to wear an Australia Post t-shirt and carry an Australia Post ID at all times. He supplied his shoes and clothing, and Australia Post supplied the ID.
Mr Acciarito invoiced APS once a month through ASG Sixty One. APS provided the Renault Trafic that he drove, including fuel, servicing and repairs. He was paid per parcel delivered, or an hourly rate if he was doing sorting. APS did not deduct tax or make superannuation contributions.
Rachel Orford was the delivery driver for Montmorency and Lower Plenty on Mondays, Tuesdays and Wednesdays and also used the Renault Trafic to make deliveries. The van was usually parked at Ms Orford’s house, and Mr Acciarito would collect it on the days he worked.
Mr Acciarito said the Renault Trafic was different from other vans because it only had neutral, auto drive and reverse, and there was no Park function. He said there was a + (plus) above the gear shifter and a – (minus) below, but he did not know what they were for and never used them. He said Mr Murdica did not give him any induction or training in relation to the Renault Trafic, and did not give him any explanation in relation to the gear shifter positions or functions.
Mr Acciarito said about a week after he started with APS he asked Mr Murdica whether he should switch the engine off when doing a delivery, and Mr Murdica told him to leave it running where possible, unless he could not see the van, because switching it off would cause wear and tear to the ignition switch or the alternator or starter motor. In cross-examination Mr Acciarito agreed it was Mr Kristof who had told him to leave the engine running. When he said to Mr Murdica that Mr Kristof let him leave the engine in the van running when making deliveries Mr Murdica responded by telling him to follow what he had been doing at Lightning Deliveries.
He said when he drove the Renault Trafic the first couple of times he felt the gears would jolt when changing from 1 to 2, and from 2 to 3 in automatic, and the van would rattle or vibrate when reversing on a flat surface but more so when he was reversing up a hill. He said about a week and a half after he started he rang Mr Murdica to tell him what he had noticed, and asked whether there was anything he should know about the van, and Mr Murdica said no, that he just had to get used to it, and that he would get it checked out to see if there was any problem. He said he spoke to Mr Murdica a second time in November 2014 about the same concerns.
Mr Acciarito said he had four or five weeks off in December 2014 and January 2015, and when he returned the Renault Trafic had been serviced, and was operating more smoothly, but by the end of March the same problems started to recur.
Mr Acciarito said that sometime before the accident in May 2015 he attended the depot to start work one morning and found a note from Mr Murdica asking him to read, familiarise himself with and sign the document which was attached. He identified the document, which is a single A4 sheet bearing an Australia Post logo, titled ‘Staff Information Session (Tool Box Talk)’ dated May 2015 (the ‘Staff Information’). The ‘Topic’ identified was:
Security of parcels while delivering, Hygiene, Emergency evacuation procedures, SAFETY ALERT — Handbrakes, LSE incident, protection of personal information, Large parcel ULD hygiene and faulty ULD gates
The Staff Information was signed by Mr Acciarito, Ms Orford and another subcontracted driver, Michael Ferres, and by Mr Murdica beneath a handwritten note ‘witnessed by Anthony Murdica’. There is no other information or instruction on the document, and Mr Acciarito said no other documents were attached, and he did not receive any other documents or instructions from Mr Murdica at the time.
Mr Murdica said that when he left the Staff Information at the depot for subcontracted drivers to sign he attached to it other Australia Post documents for them to read, including a Tool Box Talk issued 19 March 2015 and a Safety Alert dated 29 April 2015. The Tool Box Talk script read:
• Following another security incident involving a delivery vehicle we are reminding everyone (delivery staff, contractors and drivers) about both driver safety and mail / parcel security.
• When delivering you should always:
○Be aware of what you are doing at all times
○Apply the hand brake
○Lock vehicle – never leave an unattended vehicle unlocked
○Take keys – never leave keys in a vehicle when unattended
○Don’t leave any personal valuables in the vehicle where they can be seen.
○Wear your Australia Post ID – identification cards should be carried at all times
○Take scanner when you leave your vehicle. At no time should a scanner be left in the vehicle especially where it is visible
○Remain aware of your surroundings and any unusual activity by others nearby when leaving or returning to the vehicle.
Remember:
• Australia Post vehicles (including delivery contractors / drivers) may be targeted by unscrupulous people with theft in mind.
The reason for the Safety Alert was:
To remind staff of the risks associated with not applying the handbrake in vehicles.
The Safety Alert referred to incidents involving unattended runaway vehicles, with the root cause identified being that the handbrake was not applied. The recommended actions were:
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.
Mr Murdica could not say whether the Tool Box Talk and the Safety Alert were still attached to the Staff Information when it was provided to and signed by Mr Acciarito.
Mr Acciarito said the Tool Box Talk and Safety Alert were not provided to him, and Mr Murdica did not tell him about an Australia Post directive that he should turn his vehicle off when undertaking a delivery. In cross-examination Mr Acciarito said that he could not recall whether any documents were attached to the Staff Information when he signed it, but he could not remember being given the Tool Box Talk or the Safety Alert. He said 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.
Ms Orford said she worked for APS from November 2013 to June 2015, and during this period she drove the Renault Trafic. She said about a week and a half after she started at APS, Mr Murdica asked whether she turned the engine off every time she delivered a parcel, and she replied no, that she left it running most of the time. She said Mr Murdica responded that he was glad because turning the ignition off 150 to 200 times a day might cause damage to the engine. She said she continued to leave the engine running when undertaking a delivery if she thought it was safe to do so. Ms Orford said initially she could not make sense of the gear stick in the Renault Trafic, so she asked the driver she was taking over from who told her how to use it.
Ms Orford said that she did not attend tool box talks, but Mr Murdica’s practice was to give her a memo outlining what had been discussed, and ask her to sign to acknowledge she had read the document. She recalled that around Christmas in 2014 there was an Australia Post document which described incidents in which vans had been stolen from drivers while they were making a delivery, and which contained an instruction to drivers to make sure the vans were securely locked every time they exited their vehicle. She said Mr Murdica told her that despite the Australia Post instruction he would prefer that while making a delivery she continue to leave the vehicle running if she thought it was safe.
Ms Orford said the Staff Information was typical of the sort of form Mr Murdica might provide for her to sign. She said that the Tool Box Talk looked familiar, but she could not recall the Safety Alert, which she would remember because of the specific reference it made to the Renault Trafic. She said it was Mr Murdica’s practice to attach Tool Box memos to a document such as the Staff Information, and she understood her signature was to acknowledge that she had seen, read and understood what was provided to her.
Ms Orford said it was her choice where she stopped the vehicle for any delivery. She said if she thought it was safe she would leave the engine running, but otherwise she would not, and it was her decision depending on how she assessed the situation. In part that was to do with security, and in part it was about making sure that the vehicle was not going to move when she got out of it.
Ms Orford described an occasion in early 2015 when she had parked the Renault Trafic on the street and walked up a customer’s driveway to deliver a parcel, and was chatting to the customer, who then said, ‘Is that your van rolling?’. She said she ran to the van which was rolling slowly down the street and was able to put her foot on the brake to stop it. She said she had parked the Renault Trafic in neutral, with the engine running and the handbrake on. She did not tell Mr Murdica or Australia Post about the incident because she would get into trouble. After the incident she always made sure to apply the handbrake as hard as she could. On one occasion she pulled it up so hard that she could not release it and had to get a customer to help.
Mr Acciarito said he first got a licence when he was 18 years of age, and had since driven many different models of vehicles, including different vans. He agreed on each occasion he drove a new or different vehicle he would take a little while to become accustomed to how it operated. He agreed that as a licensed driver it was up to him to work out how to operate any vehicle he drove. He agreed that different vehicles had their idiosyncrasies, which as the driver, it was up to him to learn about and cater for when operating the vehicle. He agreed when he first started driving the Renault Trafic he took time to become familiar with it. He agreed that when he parked any vehicle he was driving it was up to him to make sure it was secure and would not roll away. He said in a manual you did that by turning the engine off, putting it in gear and applying the handbrake, and in an automatic you put it in Park and applied the handbrake. He agreed the Renault Trafic was designed to be a delivery vehicle.
Mr Acciarito agreed that with each delivery it was up to him to choose where to park, and whether to leave the Renault Trafic unlocked with the engine running, or to turn the engine off and lock the vehicle.
The accident
The accident occurred in May 2015 when Mr Acciarito was making a delivery to a residence in Kinnear Court, Montmorency (‘the residence’). Mr Acciarito said he had delivered to the residence before, and was familiar with it. He said on the day of the accident, and on the previous occasions he made deliveries to this address, he drove to the top of the steep driveway then turned the van to the right to park on a gravel area, which he said was about 90% flat, but with a bit of a slope back down the driveway. He said he put the van in neutral, and applied the handbrake ‘as high as it would go. Till we had the full tension on there.’ He said had he not applied the handbrake the van would have just rolled back down the driveway. He took the parcel to be delivered from the passenger seat before leaving the van and closing the driver’s door. He walked the five or six steps to the front door of the residence, delivered the parcel to the customer and chatted for a short while, before returning to the front passenger door of the Renault Trafic which he opened, intending to organise the last four or five parcels he had to deliver that day. He said he had probably been away from the van between three and four minutes.
Mr Acciarito said when he was standing at the open passenger door he noticed the van was accelerating or revving and vibrating, and he knew there was a problem so he turned away to try to get to the other side of the door, but the van jolted about a centimetre backwards, then jolted a second time, then just took off. He said he held on to part of the van to try to get some sort of control, but he was stuck between the van and the passenger door, then he was caught between the van and a retaining wall and he had no room to manoeuvre. The van was rolling down the driveway, and he ended up on the beginning of the road surface at the bottom of the driveway before the van hit a tree, where it came to rest.
Mr Acciarito agreed that when he parked the van the wheels were still turned a little bit to the right. He said he intended to reverse down the driveway after completing the delivery. He agreed he did not straighten the front wheels before he got out, or point them to the left. He said when he parked the van either the left or right rear wheel was a little bit on the slope of the driveway. When the van rolled down the driveway it moved in an arc, a bit like a right hand turn. He said the van started moving slowly, but when it got onto the sloping driveway it picked up momentum.
Mr Acciarito agreed it was his choice where he parked the Renault Trafic to make the delivery at the residence, and he could have parked outside on the street.
Mr Acciarito was asked about descriptions of the accident recorded in three claim forms. First was a Transport Accident Commission claim form, which reads:
parked in driveway on a level spot on a very steep driveway, car was idling & park brake was on. I was getting a parcel from passenger side seat & van began to roll backwards. I was dragged by open door pushing me into wall causing me to fall. Front tyre ran over my shoulder.
Mr Acciarito agreed that the description of the van rolling backwards was exactly what happened. Second was a worker’s injury claim form dated 11 June 2015, which includes the following description:
While working I was arranging parcels on passenger side seat when van began rolling backwards pushing me onto a wall causing me to fall and running over my right upper body.
Third was another claim form, with the following description:
While working I was arranging parcels on passenger side seat when vehicle began rolling backwards, pushing me onto a wall and causing the work vehicle to run over the right side of my body. Vehicle was running but no one in it. The hand brake was up but did not work. …
Mr Acciarito did not take issue with the description of the accident in either the second or third claim forms. He did say he did not get far enough into the van to begin arranging the remaining parcels.
It was put to Mr Acciarito that his van may have rolled down the driveway because he did not apply the handbrake properly, and he said:
Ah, no, I – it was my standard procedure of putting the vehicle in neutral and then applying the brake as far as I could. I – in my opinion, the actual vehicle wouldn’t have held, I would say.
Ms Orford said she delivered to the residence regularly, more than once a month. She said the driveway was really steep, and she would drive up and to the left towards the garage to a flatter section, close to the front door. She said if she was parking the Renault Trafic on a really steep incline such as the driveway of the residence she would put the van in first gear, pull the handbrake up and turn the ignition off, because that was more secure on a steep hill. If she was on a flat surface she would just put the van in neutral and apply the handbrake because that was more efficient. Ms Orford was not asked what practice she adopted when she parked at the residence.
The Renault Trafic
The Renault Trafic was a 2012 model. It was purchased by APS in 2013 as part of the transfer of an Australia Post run from another delivery company. Mr Murdica said that apart from needing some panel beating the vehicle was in good condition.
Mr Lewis, an engineer called as an expert by the plaintiff, said the Renault Trafic had a semiautomatic transmission, which meant mechanically it was a manual transmission, but it had no clutch, and the gear changes were performed by a mechanical ‘robotic system’. Included in one of Mr Lewis’ reports was a diagram of the gearshift pattern, and a photograph of the Renault Trafic gear shifter:
Gear shift pattern
(see the marking on the lever base)
+ To move up through the gears
– To move down through the gears
N Neutral
R Reverse
♦ Only stable position of the lever
A/M To switch from automatic mode to manual mode and vice versa.
Mr Lewis explained the gear shifter would always revert to the centre position. To operate in automatic mode after starting the vehicle, the driver pushed the gear shifter to the left. To operate in manual mode, the driver pushed the gear shifter forward in the direction of the plus sign to move up one gear, and back in the direction of the minus to move down one gear. Moving the gear shifter to the right placed the transmission in neutral, and reverse gear was engaged by moving right and down. Because the gear shifter always reverted to the central position, it gave no indication to the driver which gear was engaged. A dashboard display indicated whether the transmission was in a particular selected gear, operating in automatic mode, or in neutral.
Mr Lewis said the two mechanisms which could be used to secure the Renault Trafic in position when it was parked were the handbrake and leaving the transmission in gear. Mr Lewis explained the latter was done by applying the footbrake, moving the gear shifter to plus then turning the engine off. If the Renault Trafic was parked with the engine idling, unlike a fully automatic vehicle which could safely be left idling with the transmission in Park and the handbrake applied, it had only one level of assurance, the handbrake.
Mr Lewis said when a driver pushed on the brake pedal to bring the van to a stop, the effect was to disengage the clutch, so while the vehicle remained in gear it is not connected or being driven forward. Within a second or two of the driver removing their foot from the brake pedal, the clutch was engaged and the engine would then attempt to propel the vehicle.
The immediate cause of the accident
When the proceeding commenced the plaintiff pleaded the accident occurred when the Renault Trafic ‘took off due to a faulty mechanism’. It appears Mr Lewis was engaged to provide expert evidence to support that pleading, however he was unable to determine a mechanical cause of the accident, or any relevant fault with the vehicle.
The case was opened for the plaintiff on the basis that the immediate cause of the accident was that the Renault Trafic came to be in reverse gear, in a manner which was not explained, with the result that it was propelled back down the driveway. Evidence was led from Mr Acciarito as to his experience in the months before the accident of the Renault Trafic rattling and vibrating when he drove in low gear or in reverse. It is unclear to me whether that evidence was led in the hope it might be relevant to establishing a mechanical explanation for the vehicle being in reverse gear immediately before the accident.
The parties agree that the evidence at trial left only two possible explanations for the accident. First, that Mr Acciarito did not sufficiently apply the handbrake allowing the Renault Trafic to simply roll backwards down the driveway. Second, that Mr Acciarito unintentionally placed the vehicle into reverse gear before he exited, resulting in it being propelled backwards by the engine.
In closing, it was submitted for Mr Acciarito that the evidence may not allow a conclusion about which explanation should be accepted, and that the real causes of the accident were the APS system of work that vans be left running with the handbrake applied when delivering parcels, and the failure to provide Mr Acciarito training in the operation of the Renault Trafic transmission and safe parking, and to bring the contents of the Safety Alert to his attention. Given the way in which the evidence emerged at trial, it was understandable that this forensic position was adopted for the plaintiff. However, it remains important to determine how the accident occurred, and what role the plaintiff’s acts or omissions played.
Mr Lewis said Mr Acciarito’s observation, that when he opened the front passenger door the engine of the Renault Trafic was revving and the vehicle was vibrating, was consistent with it being in reverse gear. Mr Lewis said that if Mr Acciarito had unintentionally left the vehicle in reverse gear when he parked, engine revs might increase over a short period to a point where the engine overcame the handbrake and propelled the vehicle backwards. For the following reasons I do not accept the evidence of Mr Acciarito as to his observations immediately before the accident, and conclude that the most likely explanation is that the vehicle rolled backwards because it was parked on a slope with the handbrake insufficiently applied.
First, there is no mention in the descriptions of the accident recorded in the claim forms of the Renault Trafic revving and vibrating, then jolting twice before taking off. The description in the claim forms of the vehicle rolling backwards is consistent with it moving under the force of gravity, because the hand brake was not sufficiently applied, rather than being propelled by the engine. Second, Mr Acciarito’s evidence that the van started to move slowly, then picked up momentum when it got onto the sloping driveway is consistent with it rolling rather than being propelled. Mr Lewis said that history was wholly consistent with the vehicle moving because the handbrake was not properly applied.
Third, Mr Acciarito gave no evidence of any action he took or observation he made immediately before and at the time of exiting the van which supported a conclusion that he had unintentionally placed it in reverse gear. To be in reverse gear the gear shifter needed to be moved to the right and down. Mr Acciarito did not describe such an action. Realistically this could only have occurred when he was in the driver’s seat when he would have been able to see the dashboard display indicating the vehicle was in reverse. Further, as Mr Lewis said, within a second or two of Mr Acciarito taking his foot of the brake pedal the clutch would be engaged and, had the vehicle been in gear, the engine revs would increase. Mr Acciarito gave no evidence of noticing an increase in engine revs when he was exiting the driver’s door or walking in close proximity to the vehicle to make his delivery. Mr Lewis recorded being told by Mr Acciarito that when he left the van to deliver the parcel, the engine was idling normally, and there was no unusual vibration or noise.
Fourth, in Mr Lewis’ opinion, the explanation that Mr Acciarito unintentionally left the van in gear was no more than a possibility. When it was put to Mr Lewis that Ms Orford’s evidence was that if you pulled the handbrake on and left the van idling and in gear, it would stall, he agreed the possibility was ‘very, very low’.
Mr Lewis said that if the handbrake was not properly applied he would expect the vehicle to start to roll without delay. However, in the incident Ms Orford described set out in paragraph [29] above it seems that there was a short time between her leaving the van and it starting to roll. There is little doubt that incident occurred because Ms Orford had not fully applied the handbrake. The action of Mr Acciarito opening the passenger door may have been sufficient to precipitate movement of the van. It is likely Mr Acciarito was away from the van making the delivery for far less than the three to four minutes he estimated in evidence at trial. Mr Lewis said Mr Acciarito told him he spoke to the customer for 10 to 20 seconds when delivering the parcel immediately before the accident. I conclude that the time between the van being parked and it starting to move is not inconsistent with the accident having occurred because Mr Acciarito did not sufficiently apply the handbrake, allowing the van to roll backwards. On all of the evidence, that is the most likely explanation of the accident.
Submissions
Plaintiff
The content of the duty of care owed by APS to Mr Acciarito is to be measured in large part by the degree of control which it maintained as head contractor.
Mr Murdica accepted APS had an obligation to Australia Post to disseminate Tool Box Talk scripts and Safety Alert recommendations to contract drivers. This meant that APS controlled the provision to delivery drivers of instructions they were obliged to follow. The Safety Alert recommended compliance with all standard vehicle operating requirements. This should be read as a directive, not an optional suggestion. There were three elements to the directive which are particularly relevant to the circumstances of the accident. First, apply the handbrake. Second, for Renault vans, place the transmission in plus, which was an additional control mechanism to prevent the vehicle from moving when parked. Third, switch off the engine and remove the key. Had the Safety Alert been complied with the accident would never have occurred. In cross-examination Mr Acciarito accepted that contractors such as APS were required to comply with directives such as the Safety Alert, and to disseminate those directives to subcontractors. It should be inferred that had Mr Murdica passed on the Safety Alert to Mr Acciarito he would have complied with it, and the accident would not have occurred.
In the context of the number of deliveries he was required to make each day, and the instruction to leave the engine running when doing so, failing to apply the handbrake sufficiently, or unintentionally placing the vehicle in reverse, should be seen as acts or omissions which amount to no more than mere inadvertence on Mr Acciarito’s part.[1]
[1]See Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 842–3 [12].
Both Mr Acciarito and Ms Orford said they were instructed by Mr Murdica to leave their delivery vans running while making deliveries. Ms Orford made regular deliveries to the residence and the Court should infer from her evidence that she left the engine running during these deliveries. It should be accepted that APS had control of the system of work which drivers were to follow and it should be found that the accepted system of work of both Mr Acciarito and Ms Orford was that the Renault Trafic was left with the engine running and the handbrake applied when making deliveries at that address.
APS required that Mr Acciarito use the Renault Trafic for his delivery work, and had control of any training or instruction given to Mr Acciarito in the operation and control of the vehicle. It was not reasonable to expect that Mr Acciarito learn every aspect of the vehicle for himself by trial and error. What was required was that proper training and instruction be given to him so that he knew all the functions of the Renault Trafic which he had to use when undertaking between 100 and 200 deliveries per day.
Defendant
APS submitted that Mr Acciarito was an experienced delivery driver. While he was working the Renault Trafic was under his control. This included him choosing where it was parked, and what steps were taken to secure it safely in position. The knowledge of any risk associated with the vehicle moving once it was parked was shared by Mr Acciarito and APS in this situation. Mr Acciarito had the means to alleviate the risk by properly securing the van where he parked it and, as the licensed driver in charge of the vehicle, it was reasonably expected that he do so.
Even on the plaintiff’s case Mr Murdica did not direct Mr Acciarito that he must leave the van running when undertaking deliveries. Rather he simply stated to Mr Acciarito that he could continue to do deliveries as he had previously done them with Lightning Deliveries. Mr Acciarito clearly understood that it was his choice where to park his vehicle and whether or not to turn it off when he made a delivery.
Properly understood, the risk of harm from the van moving because it was not adequately restrained when parked did not arise from Mr Acciarito’s contract delivery work. The risk is identical to that which every driver faces when parking their vehicle. The obligation to address that risk falls on the driver in control of the vehicle.
The Safety Alert was a recognition by Australia Post of the risk that delivery drivers might not properly secure parked vehicles. The subject of the Safety Alert was the application of the vehicle handbrake. Mr Acciarito said he understood the Staff Information to be a communication that he, as a delivery driver, should ensure that the handbrake was properly applied when he parked his van. APS is entitled to rely on Mr Acciarito receiving and acting on that information.
The Renault Trafic was quite new, in good condition, and was designed as a delivery vehicle. Mr Acciarito accepted that as the licensed driver it was up to him to work out how to operate the vehicle he was using. In the seven months before the accident he did not make any enquiry of Mr Murdica, or any other person, about how to operate the Renault Trafic. Mr Acciarito was an experienced driver. He understood that different vehicles have their own idiosyncrasies that it was up to him as driver to understand and take into account. APS submitted that Mr Acciarito was in no different position to any licensed driver who obtains a vehicle from a car hire company, and is expected to acquaint themselves with the vehicle controls in order to operate it safely.
The conclusion which should be reached is that the cause of the accident was the failure by Mr Acciarito to properly apply the handbrake. The risk that came to fruition, that the vehicle would move from the position in which it was parked, was a risk that Mr Acciarito, and no one else, could control.
Authorities and principles
Mr Acciarito was not employed by APS. He worked for his own company, ASG Sixty One, which in turn contracted with APS for the Australia Post delivery work.
Whether a principal in the position of APS owes a duty to take reasonable care to avoid or minimise risk of injury to a person who works for a subcontractor engaged to perform work for it will depend on the relationship between the parties and all the circumstances of the case.[2]
[2]Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 47–8 (Brennan J) (‘Stevens’); Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, 11 [20]; Karatjas v Deakin University (2012) 35 VR 355, 364–5, [34]–[36] (Nettle JA); Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 (‘Rockdale Beef’).
In Rockdale Beef Pty Ltd v Carey,[3] the New South Wales Court of Appeal considered the liability owed by a feedlot owner to a stockman working as an independent contractor who was injured when trying to herd a steer back into its pen. Ipp JA, with whom the other members of the Court agreed, observed that the respondent had first been engaged by the appellant as an employee, and while he was now a genuine independent contractor, the nature of his work, and his subordinate relationship to those who had always told him what to do, remained unaffected. Ipp JA said:
[3]Rockdale Beef (n 2).
Mr Carey had no control over the configuration of his workplace. That was in the sole control of Rockdale. He had no control over where he had to work and what work he had to carry out. He was instructed by Rockdale as to these matters including the system of work that he needed to follow.[4]
Ipp JA noted the respondent was as vulnerable to potential misuse as any employee, adding:
A defendant’s control over the conduct that gives rise to the risk, a defendant’s knowledge of the risk, and the relative inability of plaintiffs to protect themselves are also important factors in determining whether a duty of care arises (see, in particular, McHugh J in Perre v Apand Pty Limited [(1999) 198 CLR 180] at 226 to 229).[5]
Ipp JA concluded the appellant owed the respondent a duty to take reasonable care to minimise the risk of injury associated with the configuration of the feedlot worksite and the work the respondent was directed to carry out.[6]
[4]Ibid [88].
[5]Ibid [91].
[6]Ibid [92].
In Sydney Water Corporation v Abramovic,[7] Basten JA noted the relevance of features of control, knowledge of risk and vulnerability to the imposition of a duty on a principal. In Abramovic, and again in Wooby v Australian Postal Corporation (‘Wooby’),[8] Basten JA set out what he said was a non-exhaustive list of potentially relevant factors:
[7](2007) 5 DDCR 570; [2007] NSWCA 248 (‘Abramovic’).
[8](2013) 233 IR 471; [2013] NSWCA 183 (‘Wooby’).
(a) the principal directs the manner of performance of the work;
(b) the work requires the coordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.[9]
In Wooby, Basten JA added:
Those considerations were not intended to provide an exhaustive list (like most lists they were context-specific) nor, despite the wording which introduced them, was satisfaction of any one necessarily sufficient to give rise to a duty. Further, they were expressed in terms of the distribution of responsibility between the principal and an employer of the worker, although they could obviously apply where the independent contractor was the worker, rather than the employer of the worker. Finally, the somewhat restrictive formulation, albeit non-exhaustive, reflected an attempt to identify considerations relevant to the question of law involved in the existence of a duty, whereas, in most cases, as in Thompson, the focus of the dispute will rely upon the factual issues relevant to breach.[10]
[9]Sydney Water Corporation v Abramovic (n 7) 593 [98]; Wooby (n 8) 477–8 [26].
[10]Wooby (n 8) 478 [27].
In Wooby, the appellant, Ms Wooby, subcontracted a mail delivery run from a contractor to the respondent, Australia Post. Ms Wooby suffered injury to her back while lifting a parcel at Australia Post’s premises in order to place it in her van. She sued Australia Post in negligence, arguing that it owed her a duty of care ‘akin to’ or ‘analogous to’ that owed by an employer to an employee. Australia Post had devised a system in which parcels to be delivered were placed in large cages with partly collapsible sides from which they were to be collected by contractors to be sorted and delivered. Australia Post weighed the parcels before they were placed in the cages, and thus knew of the precise risk which materialised, namely that a contractor would be injured through lifting a heavy parcel unassisted. Relevant features of the relationship were that the appellant was contracted to work solely for the respondent, and was not exercising any particular skill, expertise or training in carrying out the function she was performing when she was injured. Basten JA concluded that in those circumstances Australia Post should be held to owe a duty of care.
Analysis
I found Ms Orford to be a sensible and direct witness, and I accept her evidence.
Consistent with evidence given by Ms Orford, I conclude that for reasons associated with vehicle wear and maintenance, 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.
I make the following further observations. First, both Mr Acciarito and Ms Orford were, by leaving the van engine running when making some deliveries, continuing a practice they had adopted while working for other contractors before commencing with APS. Second, while he encouraged Mr Acciarito and Ms Orford to continue the same practice, Mr Murdica did not direct that they follow a particular system of work. Third, Ms Orford added the important qualification that she would follow the practice of leaving the engine running when it was safe to do so. As both Mr Acciarito and Ms Orford acknowledged, it was their choice where to park the delivery van and whether to leave the engine running, and part of their obligation as licensed drivers in charge of the van was to secure it properly when it was parked. In cross-examination the following exchange occurred with Ms Orford:
You said to his Honour that your process for parking and stopping the vehicle when doing a delivery was that if you thought it was safe, you'd leave the engine running?---Yes.
But otherwise you wouldn't. Is that correct?---Yes.
Yes. And so again, it was your decision in that regard depending on how you assessed the situation?---Yes.
Ms Orford agreed one aspect of safety when parking a vehicle was to make sure it did not roll away.
There is a risk that a driver or bystander may be injured if a vehicle is not secured in the position in which it is parked, and moves out of control. As was submitted by APS that is not a risk which is peculiar to the parking of delivery vans or other commercial vehicles, but is common to all drivers and motor vehicles.
The risk of harm to Mr Acciarito was that he might be injured if the Renault Trafic moved out of control from the position where he left it parked on the gravel area at the top of the driveway at the residence.
As Mr Acciarito 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. While APS 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 Mr Acciarito. In the circumstances Mr Acciarito should have appreciated of the risk of harm.
I accept that Mr Acciarito did not receive training or instruction from APS 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 APS breached a duty to Mr Acciarito 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. Mr Acciarito 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.
Ms Orford said when she first drove the Renault Trafic she did not know how to use the gear shifter, so she asked the driver she was taking over from, who gave her some instructions. She said 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 or in front of the post office, or when delivering parcels to shops. Mr Acciarito usually collected the Renault Trafic from Ms Orford’s residence each day he worked. In the seven months before the accident Mr Acciarito had the opportunity to ask Ms Orford or Mr Murdica about the operation or control of the Renault Trafic, but did not do so.
Further, I am not satisfied that Mr Acciarito 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. Mr Acciarito 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 Mr Acciarito 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 Mr Acciarito 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 Mr Acciarito. I do not accept Mr Acciarito’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 Mr Acciarito’s failure to properly apply the handbrake, combined with the choice of where he parked the van.
Finally, I accept the submission of APS 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. Mr Acciarito 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. APS was entitled to rely on Mr Acciarito having received and understood the handbrake reminder.
For the above reasons I conclude that there was no breach by APS of any duty it owed at common law to Mr Acciarito in respect of his work as a delivery driver which was a cause of the accident and his injuries.
The plaintiff also pleaded an allegation of breach of duty owed under the Occupational Health and Safety Regulations 2007 (Vic) placing particular reliance on regulation 2.1.1 and regulation 2.1.2. The very limited final submission made in support of that pleading is as follows:
We say that the vehicle supply [supplied] is plant within regulation 3.5.1. We say that a hazard identification in relation to such plant would be required in accordance with regulation 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 regulation 2.1.2.
The three regulations on which the plaintiff relied were:
2.1.1 Proper installation, use and maintenance of risk control measures
(1) 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.
2.1.2 Provision of information, instruction and training
(1) If these Regulations require an employer to control any particular risk, the employer must provide each employee of the employer who may be exposed to the risk with sufficient information, instruction and training in relation to the following matters as are necessary to enable the employee to perform his or her work in a manner that is safe and without risks to health—
(a) the nature of the hazard giving rise to the risk; and
(b) the need for, and the proper use and maintenance of, measures to control the risk.
Notes
1 Act compliance—section 21 (see regulation 1.1.7).2 Section 21 of the Act also places obligations on an employer in relation to supervision.
(2) The obligation imposed by subregulation (1) is in addition to any other obligation imposed on the employer by these Regulations in relation to the provision of information, instruction and training.
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.
Note
Act compliance—sections 21 and 23 (see regulation 1.1.7).
(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 use or located.
Regulation 2.1.2 was revoked by regulation 9 of S.R. No. 54/2014 and was not in force at the relevant time. Submissions were not made on this point.
For reasons already stated the statutory breach claim must fail. As a licensed driver and experienced delivery driver Mr Acciarito appreciated, or should have appreciated, the risks associated with leaving his vehicle inadequately secured when parked. If it was necessary, APS provided the Staff Information as a reminder to Mr Acciarito 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 Mr Acciarito had control. Mr Acciarito 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. Mr Acciarito 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 Mr Acciarito’s failure to sufficiently apply the handbrake to prevent the van from moving, combined with the position in which he chose to park.
Having regard to the conclusions I have reached in relation to the issues of duty and breach it is neither necessary nor appropriate that I proceed to consider contributory negligence and damages. The proceedings will be dismissed. I will hear from the parties as to any consequential orders.
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