The parties agreed on damages ($160,000.00) but disputed liability for causing the plaintiff his personal injuries.
The plaintiff was injured on 12 September 2014 at a time when the it was necessary to have an impairment of greater than 5% as assessed under the Workers’ Compensation and Rehabilitation Act 2003, and hence was precluded from making a claim against his employer.
The circumstances of the plaintiff’s duties were that whilst employed by Vacuum Excavation Australia Pty Ltd (Vacuum Excavation) the plaintiff duties involved making deliveries for Citi-Steel Pty Ltd (Citi-Steel). The plaintiff attended Citi-Steel every morning he worked and collected the run sheet for the deliveries to be made, together with the loaded truck. If there were difficulties with deliveries he would contact Mr Kissell of Citi-Steel who would always direct the plaintiff to preserve and get the job done. The plaintiff’s uniform and truck bore the imagery of Citi-Steel. There was a commercial arrangement between Vacuum Excavation and Citi-Steel for the share labour.
The plaintiff was injured when delivering steel checker plates weighing 356 kg to one of Citi-Steel’s customers, Flow Force. The customer on previous occasions had provided a fork lift to unload the steel plates. However, on this occasion, none was provided and the plaintiff injured his shoulder in the process. The run sheet provided by Citi-Steel stated, “Crane unload – no-one there”.
There was a crane on the truck, however, the crane did not reach the end of the truck and access to the steel plates were obstructed by other orders loaded on the truck. In order for the plaintiff to manoeuvre the steel plates, the plaintiff grabbed the slings and used his bodyweight to slide the plates towards the rear of the truck. The plates would move about half an inch each time and the plaintiff and the plaintiff would then lift the crane jib to stop the steel plates moving back. The plaintiff repeated this exercise about 10 to 12 times until free access to the steel plates could be achieved.
In issues was whether:
- Citi-Steel created a risk of injury to the plaintiff and therefore needed to take steps to alleviate that risk;
- Citi-Steel was negligence in breaching s.19(1) and 19(3) of the Work Health and Safety Act 2011 (WHSA);
- Citi-Steel owed a duty of care analogous to the plaintiff’s employer Vacuum Excavation;
- the ordinary duty of care owed by Citi-Steel to the plaintiff was breached;
- if Citi-Steel was negligence, whether there was contributory negligence.
Rafter J found there were no credibility issues.
The risk of moving heavy steel plates was found by Rafter J to give risk to a foreseeable risk of harm, which imposed on Citi-Steel a duty to take reasonable care to avoid injury to the plaintiff.
As to the content of the duty of care, Rafter J found that WHSA imposed statutory duties via s.19, but those duties did not create a more onerous duty than to take reasonable care: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
His Honour considered whether a non-delegable duty of care arose by the nature of the parties involved. Rafter J was not persuaded that Citi-Steel had assumed complete control of the plaintiff activities from Vacuum Excavation. His Honour distinguished Hollis v Vabu Pty Ltd (2001) 207 CLR 21 in terms of the imagery and branding of Citi-Steel. His Honour also distinguished the relationship of directors between the two entities who shared common directors on the basis that commercial rates were charged, the drivers were trained by Vacuum Excavation. His Honour was also not persuaded that the drivers could not rearrange the loads or change the time for deliveries, and had a degree of discretion in the manner in which the tasks were performed.
His Honour found the plaintiff was adequately trained by Citi-Steel in the use of the crane, and that the drivers were directed to contact Mr Kissell if they had difficulties.
His Honour reviewed several authorities and determined the underlying principle is that :
“…an independent contractor will be owed a duty of care in circumstances where the way in which the work is required to be carried out exposes the contractor to a risk of injury”.
As to breach of duty, Rafter J found that Citi-Steel ought to have:
- provided the plaintiff with specific instructions in relation to the unloading of steel plates without the use of a forklift; or
- delivered the steel plates at a time when the plates were not obstructed by steel members; or · ensured that the metal plates were delivered at a time when the proprietor of Flow Force was present and able to unload the steel plates with a forklift; or
- told the plaintiff to take additional time to make the delivery at Flow Force; or
- made the Flow Force the last delivery on the run sheet.
As to contributory negligence, Rafter J considered the High Court decision in Thompson v Woolworths (Qld) Pty Ltd (2003) 221 CLR 234, and noted the claimant had received instructions about the operation of the crane, knew to contact Mr Kissell and had in the past about issues with deliveries. His Honour accepted that Mr Kissell would not have instructed the plaintiff to make deliveries when unsafe to do so. Applying s.10 of the Law Reform Act 1995, Rafter J found the plaintiff to be 25% liable and reduced his damages by $40,000.00.
David Cormack – Brisbane Barrister & Mediator