This week, Queensland's District Court found in favour of both the labour hire employer and the host employer in a common law claim for damages brought by a dump truck operator involved in a rear end motor vehicle collision whilst conducting haulage operations at a mine site.
HopgoodGanim's lawyers, Claire Bruggemann and Janine Oberhardt, were the legal advisers to the workers' compensation insurer of the labour hire employer in this claim, which revisits the principles governing liability for motor vehicle accidents arising from rear end collisions in an employment context.
In this alert, Partner Robert Tidbury and Associate Janine Oberhardt discuss the case of Glynn Martin House v Anglo Coal (Callide Management) Pty Ltd & Anor (2016) QDC 303.
Takeaway points
- In terms of the respective culpabilities of the following vehicle and the leading vehicle in a rear end collision there is no mid-way position or modified excusal of the general position which applies to motorists on a public road. That is, in most instances, liability will rest with the driver of the following vehicle who is generally in a better position than the leading vehicle's driver to observe and make a clear choice to avoid a collision by keeping a proper lookout and either steering well clear of the leading vehicle or stopping his vehicle if there is any doubt as to the leading vehicle's intentions.
- A court is not bound to accept expert evidence of no probative value and expert evidence of slight or modest probative value may still be disregarded by the court if strong contrary evidence from lay witnesses is available.
- The mere fact that a co-worker was intimately involved in the circumstances giving rise to a plaintiff's accident does not by itself afford a finding of vicarious liability against the employer in the absence of a breach of duty by the co-worker to the plaintiff.
Facts
On 10 January 2011, the plaintiff suffered personal injuries when a rear dump truck that he was driving collided with the rear of another truck that was being driven on a mine haul road. At the time of the accident the plaintiff was employed as a truck driver with WorkPac Pty Ltd (WorkPac) who had hired his services to Anglo Coal (Callide Management) Pty Ltd (Anglo Coal) pursuant to a labour hire arrangement.
In the lead up to the accident, both vehicles were being driven in a downward path from the top of a hill. The plaintiff had made numerous circuits on the haul road before the subject accident. The evidence indicated the collision occurred on the last section of the haul road on a generally flat section. Immediately before this section of the road, there was a relatively gentle full right hand turn. The vehicle into which the plaintiff collided was being driven by another truck driver, Jerry McClintock, who had slowed but not stopped his vehicle on the road after being informed over the mine's radio system of another vehicle entering the ramp.
It was not in dispute that the width of the haulage road in question would have permitted ample room for both trucks to stand side by side or pass each other safely in circumstances where the photographic evidence demonstrated that both trucks were white in colour and very large. The plaintiff acknowledged in cross examination that visibility conditions were not poor. There was also no suggestion in the plaintiff's evidence that his view of the leading vehicle was obstructed. Of significance, in cross examination the plaintiff conceded that the separation distance between his vehicle and the leading vehicle was important for the safety of both. Meanwhile, the plaintiff accepted that he had undergone extensive pre-accident training which informed him that the appropriate separation distance was, as a general rule, to keep approximately 50 metres apart.
The plaintiff argued the haul road was unsafe on two counts. First, the camber of the road necessitated him to focus his attention to the left hand embankment or "rill" and did not permit him to look straight ahead. Second, the co-efficient of friction on the haul road was such that he was unable to safely bring his vehicle to a stop. The plaintiff further argued that the actions of Mr McClintock in slowing his vehicle on the ramp and failing to advise other drivers of his having done so via the radio system, amounted to negligence for which his employer, Anglo Coal, was vicariously liable.
Unopposed evidence was presented at trial by the mine's operation's manager, called by the defendant, that he was not aware of any similar truck collision having occurred in his 36 years working at the mine site.
Decision
The court found that whilst the likelihood of a collision on the haul road was insignificant, the risk of injury itself was foreseeable and that such a risk was not insignificant. Therefore, a reasonable response to the risk was that the employer provide appropriate training and instruction (which the court accepted was provided to the plaintiff in this instance), a safe road on which to travel and an effective communication system informing drivers of unusual or unexpected impediments to travel that were not otherwise easily observable.
With respect to the condition of the haul roads, His Honour Dorney J found that "there was nothing that satisfied me that the very general allegation that the first defendant failed to provide......a haul road surface that was effective for the purpose of stopping within a reasonable distance has been proved to the appropriate standard". In arriving at that finding, the trial Judge disregarded substantial portions of the evidence of the parties' liability experts, finding that those experts' opinions on the conditions of the relevant section of the haulage road, its co-efficient of friction, the speed of the plaintiff's truck and the timing of the application of the plaintiff's truck's brakes were largely dependent upon assumptions and evidence not properly established. The trial Judge also found that the plaintiff had not adequately explained why his attention had to be totally diverted to looking to his immediate left in the lead up to the incident, as opposed to momentarily looking to the left of the vehicle and the front, simultaneously.
The court also determined that there was nothing in the evidence that necessitated the leading driver, Mr McClintock, to audibly inform the following driver of his slowing on the ramp, as the plaintiff could clearly observe him doing so if he was not otherwise self-distracted. Therefore the trial Judge found there had been no breach of duty on the part of Mr McClintock towards the plaintiff.
In finding for Workpac and Anglo Coal, the court concluded the plaintiff had failed to keep a proper lookout and the clear inference was that his lack of attention was a significant contributor to the accident's occurrence.
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