Thomas v Trades and Labour Hire Pty Ltd

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.