Muller v Klosed Pty Ltd - [2021] VSC 360

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA

COMMON LAW DIVISION

S ECI 2019 01607

ANTHONY PAUL MULLER	Plaintiff
v
KLOSED PTY LTD (ACN 088 405 289)	First Defendant
and
TNT AUSTRALIA PTY LTD (ACN 000 495 269)	Second Defendant
REDSTAR TRANSPORT OPERATIONS PTY LTD (IN LIQ) (ACN 129 931 255)	Third Defendant
ZURICH AUSTRALIAN INSURANCE LIMITED (ABN 13 000 292 640)	Fourth Defendant

---

JUDGE:	Keogh J
WHERE HELD:	Wangaratta
DATE OF HEARING:	19, 20, 24–28 May 2021
DATE OF JUDGMENT:	23 June 2021
CASE MAY BE CITED AS:	Muller v Klosed Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 360

---

NEGLIGENCE – Workplace injury – Truck driver injured when tautliner trailer gate fell striking him on shoulder – Gate suspended from chain and bolt attached to set of rollers – Bolt fractured – History of gate sticking and being difficult to move not reported, found on safety inspection or remedied – Most likely cause of failure of the bolt was wear leading to the final fracture – Liability of employer – Liability of owner of trailer – Liability of company engaged to perform safety inspections, servicing and repairs on trailers – Contribution between defendants – Assessment of damages – Zealley v Liquorland (Aust) Pty Ltd [2015] VSC 62 – Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 665 – Wrongs Act 1958 (Vic), s 24(2).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T S Monti QC and S J Carson	Arnold Dallas McPherson Lawyers
For the First Defendant	P B Jens QC and M K Clarke	Lander & Rogers
For the Second Defendant	D McWilliams and L Burke	Terrill & Holmes (agents for NSW solicitors RGSLAW)
For the Third and Fourth Defendants	A T Strahan QC and S R Weir	Colin Biggers & Paisley Lawyers

HIS HONOUR:

The plaintiff, Mr Muller, worked for the first defendant, Klosed Pty Ltd (Klosed) driving a prime mover towing two tautliner trailers. In the course of his work Mr Muller was required to move large steel gates on the side of each trailer so that they could be unloaded. Each gate was suspended from a chain and bolt attached to a set of rollers which ran along a track at the top of that side of the trailer. Mr Muller said there were no issues with the gates, which rolled along the tracks properly, apart from the front passenger side gate of one trailer which would snag and required more force to move. In March 2015 Mr Muller was moving that gate when the attaching bolt fractured and the gate fell, striking and injuring him (the incident).

Klosed owned the prime mover which Mr Muller drove. The second defendant, TNT Australia Pty Ltd (TNT), owned the tautliner trailers, and was responsible for delivery of freight transported by Mr Muller. The third defendant, Redstar Transport Operations Pty Ltd (Redstar), was engaged by TNT to perform safety inspections,…

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 Muller v Klosed Pty Ltd

Details

AGLC: Muller v Klosed Pty Ltd [2021] VSC 360
Case: [2021] VSC 360
Decision Date: 23 June 2021

CaseChat Overview and Summary

In Muller v Klosed Pty Ltd, the plaintiff, Mr Muller, claimed damages for injuries sustained in a workplace accident. He was a truck driver for Klosed Pty Ltd, and the incident occurred when a tautliner trailer gate fell and struck him on his shoulder. The gate was suspended from a chain and a bolt attached to a set of rollers. The bolt fractured, causing the gate to fall. There was a history of the gate sticking and being difficult to move, which had not been reported, found during a safety inspection, or remedied. The plaintiff sued Klosed Pty Ltd, the owner of the trailer, and a company engaged to perform safety inspections, servicing, and repairs on trailers, alleging negligence on their part. The court had to determine whether the defendants were liable for the injuries, the extent of their liability, and the contribution between them. Additionally, the court needed to assess the damages awarded to the plaintiff.

The court found that the most likely cause of the bolt's failure was wear leading to the final fracture. It was determined that the defendants were negligent in not addressing the known issue of the gate sticking and being difficult to move. The court held that Klosed Pty Ltd, as the employer, was liable for the injuries sustained by the plaintiff due to their failure to ensure a safe working environment. The owner of the trailer and the company responsible for safety inspections, servicing, and repairs were also found liable for their roles in the chain of negligence. The court further held that all defendants were jointly and severally liable for the plaintiff's damages. The court assessed the damages based on the principles set out in Zealley v Liquorland (Aust) Pty Ltd [2015] VSC 62 and Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 665, and pursuant to the Wrongs Act 1958 (Vic), s 24(2).

The final orders of the court were that Klosed Pty Ltd, the owner of the trailer, and the company responsible for safety inspections, servicing, and repairs were all jointly and severally liable for the plaintiff's damages. The court awarded the plaintiff compensation for his injuries, loss of earnings, and other related costs. The defendants were ordered to pay the plaintiff's legal costs. The court's decision highlights the importance of addressing known safety issues in the workplace and the shared responsibility of multiple parties in ensuring a safe working environment.

Orders