Victorian WorkCover Authority v Asixa Logical Outcomes25 September 2019 Topics: Insurance, Compulsory Third Party (CTP), Workplace relations and safety
In this case, Mr Damon settled the claim with the defendants on the morning of trial. However, the trial proceeded to decide the apportionment between each of the defendants.
Mr Damon was employed as a truck driver for Kokoszko. Kokoszko was contracted by Asixa to take freight from its warehouse to Bronzewing. The freight included large and heavy tractor tyres. Kokoszko and Asixa had an arrangement whereby a truck trailer would be left at Asixa’s premises to be loaded by Asixa’s employees. Mr Damon would then collect the trailer and drive it to Bronzewing’s premises, where he would be required to assist with the unloading.
On 8 February 2011, Mr Damon was assisting unloading the tractor tyres when he sustained a lower back injury.
In the lead up to the injury, Asixa had changed the way in which it loaded the tractor tyres. Asixa used to load tractor tyres onto a pallet, so that the tyres could be unloaded via a forklift at the other end. However, this was damaging the tyres so they started loading the tyres directly onto the trailer. Asixa had a ‘grabber’ attachment on its forklift, which enabled easy loading of the tyres. Complaints were made by Kokoszko and Bronzewing to Asixa about the change in process.
Through those complaints, Asixa became aware that Bronzewing did not have a grabber attachment to assist with the unloading, which meant that the tyres would have to be unloaded manually.
Who owed a duty of care?
Both Kokoszko (as the employer) and Bronzewing (as the occupier) admitted that they owed a duty of care. Asixa alleged that it was simply a principal, and, on that basis, did not owe Mr Damon a duty of care.
As a general rule, the common law does not impose a duty of care on principals for the benefit of independent contractors. However, in some circumstances, a principal will be required to take reasonable care to ensure that a system of work is safe for an independent contractor. The proximity in the relationship between the parties is an important factor, as is the reasonable foreseeability of an injury occurring.
In this case, Asixa had inserted itself into the system of work by loading the trucks for transport. The Court held that it was reasonably foreseeable that truck drivers transporting the freight might be injured by unloading the freight, if reasonable care was not taken.
Did the parties breach their duties?
The Court held that all defendants had breached their duty of care.
The Court said that Kokoszko should have told Mr Damon not to assist with the manual unloading, and that proper instruction was vital where employees are attending on remote sites. Mr Damon raised his concerns with Kokoszko, but understood from their response that he was to continue assisting unloading the tyres.
While Bronzewing did raise the issue with Asixa, it had a continuing obligation to devise a safe method for unloading goods, or to refuse to unload the goods. It allowed the manual system, knowing this was the only way to unload the goods.
Asixa knew of the manual handling problem that arose out of its own system of loading the tyres, but took the view that it had no responsibility to address the problem. The Court disagreed, and found that there were alternative systems available, such as placing a piece of plywood on top of a pallet, which would have ensured that the tyres were not damaged, but still allow for mechanical unloading at the other end.
Both Asixa and Bronzewing were apportioned 35% of the responsibility for the injury. Because Kokoszko had no control over loading or unloading, its share of the responsibility for the injury was assessed at 30%.
This case serves as a good reminder as to the different ways that a duty of care may arise, be it as an employer, occupier, or even a principal. This is particularly the case where there is knowledge of a specific risk or problem with how a task is being performed.