Injury Compensation – Carelessness of employees – will an employer be liable?

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The recent case of House v Anglo Coal (Callide Management) Pty Ltd & Anor [2016] QDC 303 is a District Court decision which illustrates that an employer will not be liable for a workplace injury where it can be shown that adequate training and a safe workplace is provided by an employer, and where there was fault caused by the Plaintiff.

Facts:

The Plaintiff was injured in a workplace accident when the tipper truck he was driving collided into the rear of another tipper truck on a mine haul road. The Plaintiff brought a claim against his employer (first defendant) and the contractor of the Plaintiff’s labouring services (second defendant).

The Plaintiff failed to explain why he failed to see the leading truck earlier but alleged to be driving 30km/h at the time of the collision. It was also alleged by the Plaintiff that the duties owed by the second defendant, were the same owed by an employer.

Decision:

Justice Dorney accepted the duty of care applied to both defendants. His Honour referred to Vincent v Woolworths Ltd [2016] NSWCA 40 where its was held there was “a non-delegable duty to take reasonable care to avoid exposing (the employee) to unnecessary risks of injury, requiring methods of operation to be devised or safeguards to be provided where there was a real risk of injury, even one arising from the employee’s ‘thoughtlessness, or inadvertence, or carelessness’, particularly in a case of repetitive work.” However this “does not entitle an employer to expect the employee will exercise care in carrying out straight forward activities.”

Justice Dorney cited McLean’s Roylen Cruises Pty Ltd v McEwan (1948) 58 ALJR 423 where Gibbs CJ held it was not reasonable to expect an employer of an experienced worker to warn the employee of a danger which was obvious and which the worker was already fully aware of. No breach of duty was found by the defendants and even if a breach existed, a causal link from the injury to their breach failed to be proved.

His Honour concluded that it was obvious upon the consideration of evidence that the Plaintiff conceded to not looking in front of him on the road, which lead him to make a reasonable inference that his lack of attention of what was ahead was a significant contributor to the accident, if not the prominent cause.

His Honour noted that the onus was on the Plaintiff to establish his case on the balance of probabilities. Justice Dorney then citied Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184 which held that the Plaintiff should prove not only that a duty of care was owed but also that the duty was breached and this caused his injuries, thus establishing that a reasonable person in his position would foresee that this conduct involved a risk of injury to the Plaintiff.

Justice Dorney concluded that all the Plaintiff should have required in these circumstances was appropriate training and a safe road. His Honour accepted that at the time of the collision, the Plaintiff was well trained and experienced as a truck driver, undertaking a straight forward activity that he had successfully completed several times that day. His Honour addressed the Plaintiff’s understanding of the need to maintain a minimum safe distance and concluded that the Plaintiff failed to keep a proper look out and gave insufficient time to react, and stop without a collision.

It was held that the first defendant had not failed to provide a safe place of work as the haul road surface was effective for the purpose of stopping within a reasonable distance. His Honour concluded from consideration of expert evidence that the Plaintiff was travelling some 45km/h to 50km/hr when he first applied the service brake which far exceeded the 30 km/hr that was ‘guessed’ by the Plaintiff and directly resulted in the collision.

Lessons:

This case demonstrates the difficulty for a Plaintiff in proving an employer’s causation for an injury, where there is sufficient fault on the Plaintiff. Dispute a finding that a duty of care was owed, it was not breached and adequate training and a safe workplace was provided by the employers. Where a party cannot displace a basic onus of proof, the court does not look favourably upon such claimants or award injury compensation, especially where Plaintiff’s have contributed to their own peril as a result of their own carelessness.