The appellant injured his shoulder when hit by an excavator on a work site. The excavator was operated by co-employee, Mr Harris, who unexpectantly swung the boom towards the appellant. Whilst the operator of the excavator was a co-employee, the claim was brought against the principal contractor for permitting Mr Harris, an inexperienced and untrained person to operate the excavator. It was a claim in direct negligence and not vicarious liability.
Fraser JA agreed with McMurdo JA, likewise Bond JA, save his Honour disagreed as to the apportionment of contributory negligence.
It was accepted that Mr Harris when allowing the boom to move unexpectantly and quickly was negligent. However, the issue was whether the respondent in allowing Mr Harris to operate the excavator was negligent. The Court accepted that the trial judge was correct in finding the responding breached its duty because it did not provide a reasonable basis to be satisfied that Mr Harris could operate the excavator safely.
The Court disagreed with the trial judge as to causation and found it had been established by reference to March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515. Namely, permitting Mr Harris to operate the excavator created or substantially increased the risk of injury:
 It is correct to say that it is the connection between Savco’s negligence and the movement of the boom, and in turn Mr Meechan’s injury, which must be considered. It is also correct to say that amongst competent and experienced operators of such machinery, there will be some who, on occasion, will do so without reasonable care. However the question is not whether this accident could have happened with an experienced and competent operator. It is whether Savco’s negligence, by permitting Mr Harris to operate its machine, created the risk, or substantially increased the risk, that by the unsafe operation of the machine it might cause injury to another person working near to it. The answer to that question was that Savco’s negligence did create or at least substantially increase that risk, and the risk having eventuated, it was reasonable on a broad common sense view to regard Savco as having caused Mr Meechan’s injury.
As to the issue of contributory negligence, the Court found the factual premise to be different to the trial judge. The Court held the appellant had been standing on the flat tray of the truck and not a piece of heavy machinery. The Court also found that the appellant did not throw the D shackle at Mr Harris, rather he threw it to Mr Harris who caught it reaching out from his cabin.
McMurdo JA assessed contributory negligence at 20% and Bond JA at 50%. Fraser JA agreed with McMurdo.
The Court reassessed general damages and future loss of earning capacity. General damages were increased from $10,000.00 to $25,000.00 based on the conclusion that Dr Duke agreed with Dr Robinson about the appellant having some prospect of developing osteoarthritis.
The main divergence was the allowance of future loss of earning capacity based on Medlin v State Government Insurance Commission (1995) 182 CLR 1, where it was held that an award can be made on the basis of chance of the loss occurring, and it is not necessary to prove the capacity has in fact been diminished or may be productive of financial loss. Based on the agreement of the experts as the potential for osteoarthritis, McMurdo JA assessed the risk at 15% over the balance of the appellant’s working life, on the 5% tables, less contingencies ($750 x 15% over 38 years (902 multiplier) less 33%).
The appeal was allowed and damages increased by $103,741.91 after deducting 20% for contributory negligence.
Brisbane Barrister and Mediator