Morrison and Philippides JJA and Flanagan J
Further to the earlier post and the trial decision of Burns J.
Despite finding for the plaintiff/appellant on foreseeability and breach, the Court dismissed the appeal on causation. Philippides JA and Flanagan J concurring as to the orders, Morrison JA dissenting.
The appellant appealed against the trial decision to dismiss his claim against his employer for personal injuries sustained in 2010 when, during the course of his work as a driver and operator of a tip truck, the tailgate of the truck fell and landed on the appellant’s foot. It was not in contention that the Civil Liability Act 2003 did not apply, but rather the common law applied in respect of the duty owed by the council and that the labour hire employer was governed by the Workers’ Compensation and Rehabilitation Act 2003. Also not in contention:
 There was also no dispute with the appellant’s submissions that the following steps were required to be undertaken in determining the content of the duty of care, whether the duty of care was breached and whether the breach of that duty caused or contributed to the injury:
- The existence of a duty of care owed by an employer to an employee is an established category of case. It amounts to “no more than the obligation to take reasonable care to avoid exposing the employee to an unnecessary risk of injury”.
- Foreseeability of risk of injury in the context of breach of duty is determined by inquiring whether it ‘was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff’s person or property”.The requirement of foreseeability that “some kind” of damage was foreseeable is an “undemanding” test and the risk must not be far-fetched or fanciful.
- The employer is bound to have regard to a risk that an injury may occur because of inattention or misjudgement by the employee in performing his or her allotted task.In giving content to the words of generality in the employer’s duty and in determining whether a breach of it was foreseeable and, if foreseeable, involved so small a risk that the employer was justified in disregarding it, the employer’s obligation extends to establishing, maintaining and enforcing a safe system of work and includes a duty to take account of the employee’s negligence, inadvertence and carelessness in carrying out their work.
- In determining causation, the Court must consider the alleged breach of duty and, if the breach of duty is an omission, determine whether the plaintiff would have acted differently had the omission not occurred. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred.As Gotterson JA observed in Wolters v University of the Sunshine Coast:
“As noted, in Sabatino, Mason P reminded, as Gaudron J had pointed out in Bennett v Minister of Community Welfare, that in cases of negligence by omission, a finding of liability is necessarily based upon a hypothetical inquiry, Here, as principle required, the primary judge set about such an inquiry. It was into whether the incident (and hence injury) would have been avoided if the respondent had discharged its duty of care by taking appropriate action to reprimand and counsel Mr Bradley. That the incident occurred is a historical fact. Whether it would have been avoided is not, of itself, a fact. It is a conclusion with respect to the likelihood that the incident would have been avoided had the duty been discharged. The objective of the inquiry undertaken by the primary judge was to assess the likelihood of that.
The frame of reference for such an inquiry is set by reference to that which the duty of care required have been done. The inquiry is undertaken by assessing all relevant facts and circumstances from which a conclusion is then drawn as to the likelihood that the performance of that which the duty required have been done, would have avoided the incident.
The integrity of the inquiry is therefore dependent upon both a precise articulation of what it is that the duty of care required and an appraisal of all relevant facts and circumstances in order to assess likelihood. A failure to articulate the former or to undertake the latter risks a miscarriage of the inquiry and a resultant lack of legitimacy in the ultimate conclusion drawn from it.”
Duty of care
The respondent submitted that the use of an incorrect tipping procedure rendered the risk of injury as far-fetched or fanciful and therefore was not reasonably foreseeable.
 In my view, the appellant is correct in his contention that the trial judge ought to have found that a duty of care did arise in the circumstances of the present case, as there was a reasonably foreseeable risk of injury arising from poor operator procedure in failing to have a proper system of work in place in relation to tipping procedures and proper training and instructions as to the appropriate steps to be taken in the event of damage to the truck being sustained.
 The duty of care was required to be considered in circumstances where it was to be expected that, should there be damage to the truck, a driver would get out of the truck to inspect it and that a load, not properly loaded, might create a dangerous situation.
Breach of duty
As to the issues regarding breach of duty, her Honour found:
 It is important to distinguish between two areas of breach contended for at trial: that concerning the appropriate instructions and procedure as to the discharging of a load under the tailgate and the other concerning the appropriate training and instructions upon there being a failure of plant or equipment.
 In respect of the issue of the giving of appropriate instructions and specify an appropriate procedure as to the discharging of a load under the tailgate, the appellant contended that the trial judge failed to provide adequate reasons for rejecting the evidence of Mr Kahler as to the system of instruction that should have been implemented.
 The instruction was one that could easily have been given and, in view of the awareness on the part of the respondents of the consequences of an improper discharging procedure, one that ought reasonably to have been given. I consider that the trial judge erred in not finding that the respondents breached their duty in failing to devise and implement a procedure to instruct truck drivers as to the type of load that could be discharged under the tailgate swinging on its horizontal axis, as pleaded; that is, that drivers ought specifically have been instructed not to tip under the tailgate if the material in the tray was solid and more than 300 mm in diameter.
As to causation, Philippides JA found:
 As to the argument that the “push” of the tailgate by the appellant was the true cause of his injury and that the failure to provide proper instructions as to the unloading procedures was not an operative cause of the appellant’s injury, it is to be noted, as the appellant pointed out, that the trial judge did not find that the “push” was an intervening cause breaking the chain of causation between any alleged breach of duty and the injury.
 The trial judge was correct in concluding that the failure to specify that loads containing solid material larger than 300 mm should not be tipped under the tailgate was not a causative factor in the accident. Even if such an instruction had been given, and accepting that the appellant would not deliberately disregard such an instruction, it remains that it was not apparent that the appellant would have acted differently with respect to the load in question.
 This is because the appellant’s own evidence was that he observed the material being loaded. He made an assessment as to the size of the load. His assessment as to the size of the load was erroneous. Contrary to his assessment that none of the pieces were greater than 300 to 400 mm in dimension, the pile contained many pieces substantially larger than 400 mm.
 The instruction contended for would not have prevented the serious and substantial error in the assessment of the size of the load. It would not have precluded the appellant’s erroneous choice of tipping method, for a load which indisputably contained material in excess of 400 mm.
 The appellant believed material up to 400 mm could be discharged under the tailgate but his load contained many pieces of substantially larger size.
David Cormack – Brisbane Barrister & Mediator