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Tip truck tray injury not caused by host employer negligence

Tip truck tray injury not caused by host employer negligence

Thomas v Trades & Labour Hire Pty Ltd & Anor [2015] QSC 264

Employee Fails to Follow Instructions – Negligent Worker – Tip Truck Accident – Tailgate Accident – Workers Compensation Lawyers for Employers – Workers Compensation Lawyers Qld – Truck Injury Lawyer Blog – Truck Injury Compensation – Truck Injury Law Firm – Truck Injury Lawyers – Tailgate Truck Accident – Liability Claims Example

Facts

Mr Grant Thomas (Worker) was employed by Trades & Labour Hire Pty Ltd to work at the Gold Coast City Council (Host Employer) as a driver and operator of a tip truck (truck).  The Worker was an experienced driver and had worked around trucks for most of his working life.

The Worker took a load of broken pieces of concrete curbing in the Host Employer’s truck to the Suntown Tip at Arundel. The truck was fitted with a tipper tray, which could be raised and lowered hydraulically. The Worker decided to discharge the load under the tailgate, with it swinging on its horizontal axis.  The Worker chose this method, believing that the pieces of concrete were small enough to go under the tailgate. A sample of concrete pieces taken from the load after the incident contained pieces around 600mm wide.

He released two clasps securing the bottom of the tailgate tray from inside the truck cabin. As he was discharging the load, the Worker noticed something wrong with the tailgate. He said it looked as though one corner of the tailgate was hitting the ground. He went to inspect the issue.

The Worker pushed on the tailgate and it fell to the ground, falling on him and causing serious injury to his left foot.

Issue

The matters in issue at trial were whether:

  • the Worker had pushed the tailgate immediately prior to it falling to the ground or whether it had ‘popped off’.
  • the Host Employer had an adequate system of maintenance in place for the truck.
  • the Host Employer provided adequate training and instructions to the Worker.

Judgment

The Worker had given prior inconsistent statements about the sequence of events leading up to the tailgate falling off. He told a co-worker after the event that he had pushed on the tailgate. He also said that he pushed on the tailgate in his Notices of Claim.  However at trial, the Worker said that he was just thinking about pushing on the tailgate and didn’t actually push on it.

The Host Employer had given a written instruction to workers to ‘immediately report’ any problems with vehicles.

Expert evidence was led about whether the hinge pin, which was holding the tailgate on, was wearing prior to the incident and whether that wear should have been detected. The Court found that the crack to the hinge pin was probably caused during manufacture and present for up to six (6) months prior to the incident.

Despite this, the Court did not consider that it was reasonable for inspection of the pin to form part of any inspection or maintenance process.

The Court found that the cause of the cause of the hinge pin breaking and the tailgate falling off, was the Worker pushing on the tailgate. This was despite the evidence of the Defendants’ and Plaintiff’s engineers, that the tailgate could have fallen off without any interference by the Worker.

The Court gave judgment for the Defendants.

Considerations

This case will be of assistance to those managing claims involving workers with many years of industry experience, who disobey a written instruction by an employer. Particular emphasis was placed upon the instruction given to the Worker in the judgment. It may also be of interest to those compulsory third party insurers whose policies extend beyond driving, to the ‘use of’ a vehicle.

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Kate DenningTip truck tray injury not caused by host employer negligence
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Injuries from vibration or a sudden jolt

Injuries from vibration or a sudden jolt

Injuries from Vibration – Liability Claims Examples – Injuries from heavy equipment – Compensation pre existing condition – Injuries in Mining – Injuries in Coal Mining – Truck Injury Lawyer Blog – Truck Injury Lawyers – Truck Injury Compensation

In industries that use heavy equipment, claims sometimes arise out of vibratory forces or sudden jolts. Only a handful of Australian judgments have been delivered over the past decade in these types of cases. Some take away points from those decisions are as follows:

Previous complaints

In a vibration case, the number of complaints made about the equipment or the road surface will be relevant. For instance, in Robertson v Gillman Bros Mining Contractors Pty Ltd [2007] WASCA 36, the trial judge was not satisfied that the level of complaints suggested any wrongdoing by the Defendant because the complaints were ‘no more than would necessarily be expected and unavoidable in’ the harsh environment of underground mining.

Condition of equipment

The extent of any damage caused by a jolt, will be relevant to determining the impact force: Kelly v Humanis Group Limited [2014] WADC 43. In Kellythe Plaintiff’s dump truck was struck by a fully loaded excavator bucket. However, due to the limited damage to the Plaintiff’s dump truck, the Court concluded that the force of the impact was less than the Plaintiff described in his evidence.

For vibration cases, the condition of the seating, mirrors, suspension and any modifications to the equipment may also be taken into account: Russell v Hancock Farm Company Pty Ltd [2013] QDC 129. In Russell, the Court ultimately found for the Plaintiff because of the general condition of the equipment and the system of work and not because of the vibratory forces to which the Plaintiff was exposed.

Pre-start checklists, inspection and maintenance records, diaries, photographs and similar documents, will assist the Court, in determining the condition of the equipment.

Reporting of the incident

As with all personal injury cases, the timing of the Plaintiff’s report about the event will be taken into account. In Kelly, the Plaintiff’s failure to report the incident immediately afterwards (along with the limited damage to the dump truck) was a factor which led to a finding for the Defendant.

Pre-existing degeneration

The Plaintiffs in these cases often have underlying or pre-existing degeneration. The Defendant will bear the burden of proving that the Plaintiff would have suffered symptoms, regardless of the event. However, where the evidence can identify significant degeneration, substantial discounts can be made: Russell v Hancock Farm Company Pty Ltd.

Expert evidence

Expert liability evidence has assisted the Court in the cases mentioned above, in deciding issues such as:

  • the extent of the impact force from a jolt.
  • whether vibration could have caused injury.
  • the period over which an injury through vibratory forces could occur.
  • the condition of the equipment or road surface.

Summary

These kinds of cases are often complex and expensive to litigate for the parties. With claims arising in the mining, construction and agricultural industries, claims often involve multiple parties, disputes on liability and quantum, as well as cross claims in contract and tort. The cases that are contested, commonly involve questions about the Plaintiff’s credit and underlying degeneration.

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Kate DenningInjuries from vibration or a sudden jolt
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.