Australia: Appeal dismissed because injured worker fails to establish causation

Last Updated: 14 December 2016
Article by Robert Tidbury, Anna Hendry and Aaron Clark

Last week, Queensland's Court of Appeal dismissed an appeal by an injured worker who claimed damages for serious injuries sustained during the course of his work as a driver and operator of a tip truck when the tailgate of his tip truck fell and landed on his foot. Both the employer and its workers' compensation insurer were represented by HopgoodGanim Senior Associates, Anna Hendry and Aaron Clark, in the proceedings and the subsequent appeal which highlight the principle that in order for an injured worker's claim in negligence to succeed, any breach of the employer's duty of care must have been a causative factor in the incident giving rise to the injury.

In this alert, HopgoodGanim's practitioners, Robert Tidbury, Anna Hendry and Aaron Clark discuss the dismissal of the plaintiff's appeal in the Queensland Court of Appeal decision of Thomas v Trades & Labour Hire Pty Ltd (In Liq) & Anor (2016) QCA 332.

Takeaway Points

  • The establishment of a breach of duty by the employer is not the only requirement which an injured worker must satisfy in order to successfully claim damages at common law.
  • It is also essential for the injured worker to demonstrate that the alleged breach of duty by the employer actually caused the loss and damage complained of.
  • As part of its consideration of issues surrounding causation, the court will turn its mind to whether or not some act or omission on the part of the plaintiff may have been the true cause of the loss and damage complained of, independent of any act or oversight of the employer.


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 Decision in First Instance

The plaintiff's case was that he was simply standing near the tailgate when it fell. That position 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 for determination by the trial judge 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 swing the tailgate on its vertical axis, thereby resulting in the load's contents colliding with the tailgate, 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.

The Appellate Decision

In a 2-1 decision, the Appellate Court dismissed the appeal, finding that a duty of care on the part of the defendants did arise as there was a reasonably foreseeable risk of injury arising from poor operator procedure on account of the defendants' failure to have a proper system of work in place in relation to the tipping procedures and the concurrent failure to provide proper training and instructions as to the appropriate steps to be taken in the event of damage to the truck being sustained.

Having determined that a duty of care on the part of the defendants arose, the court also concluded that a breach of that duty occurred by virtue of the defendants' failure to devise and implement a procedure to instruct truck drivers as to the type of load that could be safely discharged whilst the tailgate remained in place on its horizontal axis. In other words, the court held that the worker ought to have been told not to tip material under the tailgate if the material in the tray included solid, larger debris. In arriving at that outcome, the court of appeal was mindful that the instruction in question was one that could easily have been given and, in view of the awareness on the part of the defendants of the consequences of an improper loading procedure, one that ought reasonably to have been given.

Notwithstanding the majority of the court of appeal finding that the defendants were in breach of their duty of care, the plaintiff's appeal ultimately failed because the majority determined that the defendants' failure to specify that larger loads should not be tipped under the tailgate was not a causative factor of the accident. In arriving at that position, the majority was mindful that even if such an instruction had been given to the worker, and accepting that the injured worker would not have deliberately disregarded the instruction, it remained the case that it was not apparent that the injured worker would have acted differently with respect to how the unloading was conducted. This was because it was the injured worker's own evidence that he observed the material being loaded in circumstances where he made his own assessment as to the size of the load. That assessment was wrong in the sense that a portion of the load comprised pieces of concrete significantly larger than what the injured worker had assessed. In those circumstances, the instruction contended for would not have prevented the injured worker's serious error in the assessment of the size of the load and nor would it have prevented the injured worker's erroneous choice of tipping method. Therefore, where the injured worker's decision to unload under the tailgate was ultimately a deliberate one based on his incorrect assessment of the load, the Appellate Court determined that the conclusion of the trial judge as to causation was correct.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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