HopgoodGanim Lawyers' Senior Associate Anna Hendry, was successful in defending a recent case which examined the importance of proving causation. Whilst often neglected, causation remains an essential element of a claim in negligence as shown in the decision of Thomas v Trades and Labour Hire Pty Ltd and Anor  QSC 264.
The plaintiff was employed by Trades and Labour Hire Pty Ltd (TLH) and placed with the Gold Coast City Council as a tip truck driver. He had, in fact, worked for the Council for a number of years through another labour hire company before being employed by TLH.
On 2 August 2010, the plaintiff tipped a load of broken concrete at a dump. He did this by allowing the material to slide out of the tray and underneath the horizontal axis of the tailgate. After completing the tip, he noticed that the tailgate was hanging down. He left the vehicle to inspect the damage further and found that the hinge pin on one side of the tailgate had broken and the tailgate was hanging down at an angle, held in place only by the latch on the opposite side of the tailgate. He sustained an injury when the latch gave way and the tailgate fell on his foot.
The design of the tip truck allowed items to be tipped either underneath the horizontal axis of the tailgate (as done by the plaintiff), or by swinging the tailgate on its vertical axis and pinning it against the side of the truck. The swinging method allowed for large items to be tipped unimpeded by the presence of the horizontal axis. The system of work adopted by the Council required workers to decide whether the tailgate should be swung or not in order to tip a particular load.
The plaintiff's case was that he was simply standing near the tailgate when it fell. That case was contrary to a number of written and verbal statements provided by the plaintiff shortly after the incident in which he said he attempted to push the tailgate into the tray of the truck when the latch gave way and the tailgate fell on his foot. The court did not accept the plaintiff's attempts to explain the difference between his contemporaneous statements and his pleaded case and found that the plaintiff did push the tailgate, causing the latch to give way and the tailgate to fall on his foot.
The plaintiff's case was also that the risk of a broken hinge pin was foreseeable and the flaw in the hinge pin ought to have been identified by the employer and/or the Council. Expert evidence was called in relation to the cause of the flaw and the prospects of identifying the flaw prior to the incident. While the plaintiff's expert opined that the flaw occurred as a result of heavy loading during the use of the tailgate over a period of time prior to the incident, the court accepted the defendants' expert who contended that the flaw had been present since manufacture as a result of "cold working". Both engineers agreed that attention would have to be "strongly directed" to the area where the crack was situated in order for it to be detected.
Having made those findings, the main liability issues were:
- Whether the risk of the tailgate hinge breaking was foreseeable;
- Whether the system of maintenance and inspection of the tailgate hinge was reasonable;
- Whether the system of work, which allowed for driver discretion as to the appropriate tipping method was reasonable; and
- Whether any deficiency in the system of maintenance and inspection or the system of work was causative of the plaintiff's injury.
The court found the Council had never encountered a tailgate hinge breaking before but had encountered hinges bending. It therefore found that the risk of the tailgate hinge breaking was not foreseeable and the system of maintenance and inspection was reasonable in light of that finding.
The court acknowledged that systems of work which allow for worker discretion are open to criticism but noted that this was a task which did not lend itself to blanket rules. The court declined to make a specific finding as to whether the system of work was reasonable having regard to its views on causation.
In relation to causation, the court found the plaintiff was well aware that concrete of the dimensions he was tipping ought not to have been tipped through the tailgate and his failure to tip properly caused the tailgate hinge to break. The plaintiff was also aware that he should have stayed well clear of the broken tailgate but instead he approached it and pushed it, resulting in his injury. Therefore, any breach of duty in relation to the provision of a reasonable system of work was not causative of the injury.
Take Away Points
In assessing the merits of a claim in negligence it is essential to consider whether the alleged breach of duty was actually causative of the plaintiff's loss and damage or whether some act or omission on the part of the plaintiff caused the loss.
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