Thomas v Trades and Labour Hire Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Thomas v Trades and Labour Hire Pty Ltd & Anor [2015] QSC 264

PARTIES:

GRANT RUSSELL THOMAS

(plaintiff)

v
TRADES AND LABOUR HIRE PTY LTD

(first defendant)
and
GOLD COAST CITY COUNCIL
(second defendant)

FILE NO/S:

SC No 9892 of 2012

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

8 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2015 to 26 March 2015; 22 April 2015

JUDGE:

Burns J

ORDER:

Judgment for the defendants

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the plaintiff was employed by the first defendant – where the plaintiff’s services as a truck driver and operator were hired by the first defendant to the second defendant – where the second defendant as host employer directed the plaintiff to drive and operate a tip truck – where, after discharging a load, the plaintiff was injured when the tailgate attached to the tip truck dislodged and fell onto his left foot – whether the defendants, or either of them, breached their duty of care to the plaintiff – whether a risk assessment of tipping operations focused on the operation of the tailgate ought to have been conducted by the defendants prior to the accident – whether a maintenance and inspection regime ought to have been in place prior to the accident such that structural defects in and around the tailgate could have been identified – whether the defendants provided adequate training and instructions to drivers and operators of tip trucks – whether the defendants had devised and implemented appropriate procedures regarding the tipping operations to safeguard the plaintiff from harm

TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY –  where the quantum of damages is in dispute – where the plaintiff suffered injuries in consequence of the accident which left him with a permanent impairment of his left foot – where the plaintiff also suffered an Adjustment Disorder in consequence of the accident – where, as a result of his injuries, the plaintiff suffered a loss of the amenities of life including pain, restriction of movement and an impact on his capacity to carry out day-to-day tasks – where the plaintiff was 56 years of age at the date of the accident and intended to work until age 70 – where the plaintiff is, for all intents and purposes, commercially unemployable – where the plaintiff was continuously employed prior to the accident but his level of remuneration varied in accordance with the work assigned to him by the second defendant – where the plaintiff had a number of physical ailments prior to the accident – whether, in light of these ailments, the plaintiff would have remained remuneratively employed until age 70 – whether since the accident there has been and, in the future will be, a need for care and assistance

Civil Liability Act 2003 (Qld),…

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Details
Case
[2015] QSC 264
Decision Date

CaseChat Overview and Summary

Thomas, a truck driver employed by Charleson Labour Hire and hired to the Gold Coast City Council, commenced an action against both employers for damages arising from an accident at work. The plaintiff claimed that he was injured when the tailgate of the tip truck dislodged and fell onto his left foot. He contended that both defendants, or either of them, breached their duty of care towards him by failing to conduct a risk assessment of the tipping operations, implement a maintenance and inspection regime, provide adequate training and instructions to drivers and operators of tip trucks, and devise and implement appropriate procedures regarding the tipping operations to safeguard him from harm. The defendants, on the other hand, contended that the plaintiff was aware of the risks involved in discharging the load under the swinging tailgate and that his decision to do so, despite knowing better, amounted to contributory negligence, which should absolve them of liability. The court was required to determine whether the defendants breached their duty of care towards the plaintiff and whether the plaintiff's contributory negligence absolved them of liability.

The court held that the defendants did not breach their duty of care towards the plaintiff. It found that the plaintiff was aware of the risks involved in discharging the load under the swinging tailgate and that his decision to do so, despite knowing better, amounted to contributory negligence, which absolved the defendants of liability. The court found that the plaintiff was an experienced driver and operator who made a deliberate decision to discharge the load under the swinging tailgate, rather than adopting the alternative method which he knew should have been used. The court also found that the plaintiff placed himself in a position of obvious danger before making a conscious choice to push the tailgate. The court held that the defendants did not owe the plaintiff a duty of care to conduct a risk assessment of the tipping operations, implement a maintenance and inspection regime, provide adequate training and instructions to drivers and operators of tip trucks, and devise and implement appropriate procedures regarding the tipping operations to safeguard him from harm. The court held that the plaintiff's contributory negligence absolved the defendants of liability.

The court dismissed the plaintiff's claim against both defendants. The court assessed the plaintiff's general damages against TLH in the sum of $41,200.00 and against the Council in the sum of $55,000.00. Interest was also assessed against the Council at the rate of 2 per cent, amounting to $5,626.92. The period from the date of the accident to this assessment was 266 weeks.

Orders

Orders of the court

Judgment for the defendants

Background

Background to the litigation

What follows below are the facts as I find them to be, followed by my consideration of those facts in accordance with the legal principles which govern the determination of the issue of liability.Background Mr Thomas worked in his family’s trucking business in New Zealand for some 25 years.[1] For a time, he was a part owner of that business. In 2000, he moved to Australia with his wife, Patricia. Mr Thomas subsequently became licensed to drive heavy rigid trucks in Queensland[2] and, relevantly, he commenced permanent casual employment with Charleson Labour Hire on 23 May 2005. His services were immediately hired to the Council. Mr Thomas remained working with the Council until the date of the accident although, at some earlier point in time, Mr Thomas’ employer changed from Charleson Labour Hire to TLH. He was, at least by 2 August 2010, stationed at the Council depot situated at Carrara.[1] From 1975 to 2000: Exhibit 4, page 13.[2] The truck being operated by Mr Thomas at the time of the accident was a heavy rigid truck.The accident On the morning of the accident, Mr Thomas arrived at the depot to commence work at approximately 6.30 am.[3] After conducting a prestart check of the truck, he drove as directed to an address at Carrara where, from approximately 7.00 am, his truck was loaded by a backhoe operated by another Council employee – Steven Hinde. The load consisted, in the main, of broken pieces of concrete curbing. Mr Thomas remained in the truck while the concrete curbing was dug from the side of the road by Mr Hinde and then loaded onto the truck. Mr Thomas gave this account of the process:“You’re sitting in the truck alongside a backhoe. He is picking up the concrete, putting it in the back of your truck. You’re looking in your mirrors all the time at the backhoe so you’re looking to see what the size of the material he’s putting in the back and also when to move along.”[3]This time is taken from the statement provided by Mr Thomas to Ms Cox, a Workplace Health and Safety Inspector: Exhibit 4, page 19. Mr Thomas said that he saw “small pieces of concrete and curbing” being loaded onto his truck. His evidence was to the effect that none of these pieces was greater than 300 to 400 millimetres in length, width or depth. He therefore decided at that time to discharge the load under the tailgate – that is to say, with the tailgate swinging on a horizontal axis – because he thought this “small material will go out underneath”. When the truck was fully loaded, Mr Thomas alighted from the cabin to wind a tarpaulin over the load. The winding mechanism was situated behind the cabin of the truck. He then proceeded to the Suntown Tip at Arundel to discharge the load, arriving at 8.20 am. When he arrived, Mr Thomas was directed to a particular place at the Tip to discharge the load. He drove there and then reversed the truck into position. He did not see any other Council trucks unloading concrete curbing, although he said that he saw some material that had been tipped by “other trucks” before him, some “10 feet, 15 feet away” from his position.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It only remains to be said that there is no suggestion in the evidence that Mr Thomas was under any particular time imperative to empty the relevant load. Nor was the task he was undertaking at the time of the accident “repetitive” or “tedious” in the sense described in McLean v Tedman.[66] Mr Thomas was an experienced driver and operator who made a deliberate decision to discharge the load under the tailgate swinging on its horizontal axis, rather than adopting the alternative method which he knew should have been used. He then placed himself in a position of obvious danger before making a conscious choice to push the tailgate.[66] Supra.Conclusion For the above reasons, Mr Thomas’ claim against both defendants must fail.Quantum Despite my conclusion on liability, it is of course still necessary to assess damages.[67] I do so below.[67]In this regard, it should be noted that, by s 5 of the Civil Liability Act 2003 (Qld), that Act does not apply in relation to awards of damages for personal injury if the harm resulting from the breach of duty includes injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). As such, damages against TLH are to be assessed by reference to common law principles as modified by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (including the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld)), and damages against the Council are assessed in accordance with the common law principles without modification.General damages Mr Thomas sustained a significant injury to his left foot which has left him with a permanent orthopaedic impairment, assessed as 10 per cent of the whole person. He has in the past suffered, and will in future suffer, varying levels of pain. At the time of trial, he was still suffering intermittent episodes of pain which were described as “severe”. His mobility is limited and his balance has been affected. Mr Thomas has difficulty sleeping and his enjoyment of life has been significantly affected. Mr Thomas has been left with scarring, assessed as a 5 per cent whole person impairment, and has been diagnosed as suffering from an Adjustment Disorder with anxiety and depressed mood. A 5 per cent whole person impairment is attributable to this disorder. Dealing first with TLH, the dominant injury within the meaning of Schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) is to the left lower limb (Item 134). Given the existence of the scarring as well as the Adjustment Disorder, an uplift of 25 per cent should be applied. This results in an ISV of 25 – and a monetary assessment in the sum of $41,200.00. Interest is not allowable.[68][68] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 306N. So far as the Council is concerned, I assess general damages in the sum of $55,000.00. Interest at the rate of 2 per cent should also be assessed[69] – $5,626.92.[69] The period from the date of the accident to this assessment is 266 weeks.Special damages

Ratio Decidendi

Legal Principle Established

In the end, and although Mr Dalton agreed that Mr Thomas had been a good worker, responsible, reliable and punctual and, further, believed that Mr Thomas would follow an instruction when given, the fact of the matter is that Mr Thomas knew that he ought to have swung the tailgate completely out of the way before he made any attempt to discharge the relevant load. He also knew that he was not to approach such obviously damaged equipment as the tailgate but, to instead report the damage to the Council.Consideration As Mr Thomas’ employer, TLH owed to him a non-delegable duty of care.[59] His host employer, the Council, also owed a duty of care to Mr Thomas.[60] In deciding whether there has been a breach of either duty of care:“…the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”[61][59] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. [60] TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1. [61] Wyong Shire Council v Shirt (1980) 146 CLR 40. In the course of deciding whether an employer has provided a safe system of work, it is necessary to consider whether such a system was enforced and maintained and, in that regard, the possibility of negligence, inadvertence or carelessness on the part of the employee when carrying out the work must be taken into account.[62][62] McLean v Tedman & Anor (1984) 155 CLR 306; Czatyrko v Edith Cowan University (2005) 214 ALR 349. There is also, and ultimately, a question whether any of the alleged deficiencies in the system of work bore a causal relationship to the happening of the accident, the answer to which depends, to no little extent, on the discoverability of the crack in the hinge pin, the foreseeability that such a defect might develop, and Mr Thomas’ store of knowledge at the time of the accident. However, once it is appreciated that the load which Mr Thomas emptied included large pieces of concrete curbing – and many of which were substantially greater in width or depth than 400 millimetres – the position, so far as liability is concerned, becomes clear. Given the composition of the relevant load, Mr Thomas well knew that the tailgate should have been swung out of the way. It was not. Instead, Mr Thomas discharged the load under the tailgate and, as I have found, when he did so, sufficient forces were applied to the tailgate to cause the hinge pin – already weakened by the pre-existing defect – to snap through. This left the tailgate hanging at an angle, with its only point of attachment with the tray being the latch on the driver’s side of the tray.