WCRA: Failure to prove defect in system of work or training

Beaven v Wagner Industrial Services Pty Ltd [2016] 299 QDC

Richards DCJ

The plaintiff was employed as a truck driver by the defendant. His duties included undertaking pre-start vehicle checks of the truck at the beginning of each shift. In 2011, the plaintiff attempted to unlock a truck door by pulling on the unlocking pin with vice grips. The plaintiff suffered an injury to his lower back, which radiated down to his feet.

The plaintiff claimed damages for negligence on the basis of, inter alia:

  • Failure to provide a safe system of work;
  • Failure to provide adequate assistance and supervision to ensure the plaintiff would not injure himself in the course of employment; and
  • Failure to provide adequate plant and equipment to ensure the plaintiff could undertake his employment in a manner that was not likely to cause injury

Liability

Richards DCJ referred to the High Court in Czatyko v Edith Cowley Investing where the High Court stated:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury …The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work

His Honour went on to state:

[36] Attempting to lift a door lock is an activity within the purview of general checks on the truck, however, the plaintiff, upon being unable to lift the lock manually decided to use vice grips to pull it up. This was an activity that was not within the normal course of activity and evidence was given by Peter Steele that while it would be expected that an employee might try to lift the lock from the inside of the truck, that if that was unable to be done then the matter should simply be reported as a fault. It was the act of using the vice grips in this case that caused the plaintiff to be in an awkward position and therefore fall in the manner that he did.

[39] There does not seem to be any suggestion in this case that the defendant’s system of maintenance of the trucks was in any way defective.  The drivers were required to report faults in a log and it was accepted that this was an appropriate means of identifying faults in trucks. It was a requirement of the driver that they perform a pre-start check and the professional driver’s handbook required that if fault was found drivers are to cross an initial pre-start and complete the repair request book.  Any faults that are found that make the vehicle unroadworthy, must be reported to the supervisor immediately.

Training

Richardson DCJ accepted that further training would not have caused the plaintiff to have recourse to a different method of opening the truck door. His Honour said:

[44] …  there was no evidence of the fault in manual handling training or what additional training would be necessary for Mr Beaven to have decided not to act in the way that he did on the day in question.

[45] There is no specific evidence that he would have behaved differently had he had additional trainingIn my view it is unlikely that he would have changed his actions when he thought that the vice grips would fix the problem.

Richardson DCJ was not satisfied that had there been further training and signage that the plaintiff would have acted differently. Accordingly, her Honour found by reference to Amaca Pty Ltd v Booth (2011) 246 CLR 36 at 53-54 [43] and Prasad v Inghams Enterprises Pty Ltd [2016] QCA 147 at [94] that the plaintiff had failed to prove causation and breach.

 

David Cormack – Brisbane Barrister & Mediator

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