Thomas v Trades and Labour Hire Pty Ltd [2015] QSC 264
The plaintiff was employed by the first defendant labour hire company and had for many years had been contracted to the second defendant council (host employer). The plaintiff was injured during the course of work as driver and operator of tip truck when the tailgate fell on his foot.

The plaintiff claimed damages in negligence from the labour hire employer (ss305C, 306N, 306F & 306H Workers’ Compensation and Rehabilitation Act 2003 (Qld) – Sch 9 Workers’ Compensation and Rehabilitation Regulation 2003 and host employer (s5 Civil Liability Act 2003 (Qld).

Held: the plaintiff failed to establish the risk of injury was reasonably foreseeable. In the alternative, if foreseeability was established and duty of care arose, the claim nevertheless failed because of causation.

Critical to the failure of the plaintiff’s claim was the acceptance by his Honour Burns J of statements given by the plaintiff shortly after the injury and subsequently incorporated into his pre-court procedure notices of claim, as to whether he pushed the tailgate immediately before it fell and crushed his foot. Furthermore, his Honour preferred the expert engineer evidence of Dr Grigg to Mr Kahler as to the defect in the pin and that it would not have been discoverable prior to it breaking. His Honour found both engineers agreed that it was unlikely unless a person tasked with inspecting the tailgate and pin was specifically directed to inspect the area, that any defect would be noticeable.

His Honour preferred the evidence of Mr Howard and Mr Hinde as to the composition of the load, which His Honour found meant the plaintiff incorrectly tipped the load out by opening the tailgate horizontally. The effect of this meant the force of the load caused the defective pin to weaken.

His Honour found that the direct causal link to the injury was the plaintiff pushing the tailgate, which was weakened and gave way. In contrast, his Honour found that the plaintiff should rather have reported the damage. His Honour accepted the plaintiff was an experienced worker and that further instruction or directions to him or inspections of the vehicle and tailgate mechanism/pin would not have prevented the injury.

Burns J

[4] In order to discharge the load using the first-mentioned method – that is, under the tailgate swinging on its horizontal axis – the two clasps securing the tailgate to the base of the tray could be released using an internal control fitted inside the cabin of the truck. The tray could then be raised hydraulically using controls that were also located inside the cabin. The second-mentioned method – that is, swinging the tailgate out of the way on its vertical axis – was slightly more involved and, relevantly, required the driver to leave the cabin of the truck and move to the rear of the vehicle. In addition to using the internal control to release the clasps securing the tailgate to the base of the tray, the driver needed to disengage the tailgate and swing it out of the way. This was achieved by the driver walking to the rear of the vehicle in order to unfasten the latch at the top of the tailgate on the driver’s side of the tray and, once unfastened, a steel pin then needed to be inserted by the driver at the bottom of the tailgate on the passenger’s side of the truck to form a second, and temporary, hinge between the tailgate and the tray. The tailgate could then be swung around on its vertical axis to the outside of the passenger’s side of the tray, where it would then be secured with a hook. The driver then needed to return to the cabin of the truck to operate the hydraulic hoist in order to raise and then lower the tray. When the load was fully discharged, the driver was then required to leave the cabin and reverse this procedure in order to return the tailgate to its original position.
[5] Stripped of its contentious features, the accident happened in this way. Unknown to anyone, the hinge connecting the tailgate to the top of the tray on the passenger’s side was defective; there was a partial thickness crack in the hinge pin. After using the internal control to release the two clasps securing the tailgate to the base of the tray, Mr Thomas was discharging a load of broken concrete under the tailgate swinging on its horizontal axis when the hinge pin broke. In consequence, the tailgate fell away, with its only remaining point of attachment with the tray being the latch at the top of the tailgate, on the driver’s side of the truck. After lowering the tray and observing through the passenger’s side mirror that something was amiss, Mr Thomas alighted from the cabin of the truck and walked to the rear of the vehicle. As he was standing behind the tailgate, it broke away from the latch and fell onto Mr Thomas’ left foot, causing a crush type injury.

[11] The defendants ran a joint case on liability or, at least, their approach was the same. It was to contend that Mr Thomas adopted the incorrect tipping procedure for the particular load in question and that this caused the hinge to fail. The defendants further alleged that, when the tailgate was still attached to the tray by the latch at the top of the tailgate on the driver’s side of the truck, Mr Thomas pushed it, with the immediate consequence that the tailgate fell from the latch and landed on his left foot. The defendants otherwise maintained that the crack in the hinge pin was not reasonably detectable and that the system of work in place at the time of the accident was adequate. As to the allegations that the training and work instructions (including written procedures) which had been provided to Mr Thomas were deficient, it was argued on behalf of the defendants that any such deficiencies were “causally irrelevant” because Mr Thomas was aware of both the correct tipping procedure for the load in question and what to do to keep himself from harm’s way in the event that an item of equipment, such as the tailgate, was damaged.

[19] Mr Thomas said that he then released the two clasps securing the bottom of the tailgate to the tray using the internal control and then operated the hydraulic controls to raise the tray. When raising the tray, the park brake for the truck was initially engaged but, when Mr Thomas heard the loaded material start to slide in the tray, he released the brake and allowed the truck to move forward until the load was fully discharged. Mr Thomas then applied the park brake and lowered the tray but, as he was doing so, he noticed through the passenger’s side mirror that there was “something wrong with the tailgate”. Mr Thomas said that it “looked like one corner was hitting the ground”.
[20] Mr Thomas knew and, in fact, had received instructions from the Council to report any damage to his truck to the “office staff”. He was also aware of Council instructions never to “attempt to fix” any damage “because you don’t know what you’re doing”. He therefore decided to “have a look at the tailgate and then … report back … to the office”. For that purpose, Mr Thomas alighted from the cabin and walked to the rear of the truck. What he saw and what happened next were very much in dispute at the trial.

[21] According to Mr Thomas, he saw that the hinge at the top of the tailgate on the passenger’s side of the truck had broken and that “the edge of the tailgate was on the ground”. He said that the tailgate was sitting at an angle of about 45 degrees to the ground.4 He noticed that the latch at the top of the tailgate on the driver’s side of the truck was the only point of attachment between the tailgate and the tray, but said that he had no time to inspect the latch before the tailgate just “popped” off. Mr Thomas maintained that, although he had “thought about pushing [the tailgate] on”, he did not touch it before it fell. He described what happened in the following way: “I was standing about a metre away and next thing, all of a sudden that top one there let go on the right-hand side and landed on my foot. … It just came straight – just flew straight off, bang, down.”

[22] Later in his evidence Mr Thomas said that he was standing “about a metre behind” the tailgate and “in the centre” immediately before it fell. He said that, when the tailgate dislodged, it fell flat and not on its edge.
[23] When Mr Thomas was asked whether he had ever told anybody that he had pushed the tailgate before it fell, he accepted that he probably had told someone something like that because that was what he “thought” at the time; that is, that he could “push the tailgate on”. Mr Thomas said that, although he “thought [he] could” push the tailgate, he had not actually done so. He then added, “you probably wouldn’t do it because it’s too heavy”.
[24] Mr Thomas had, indeed, stated to a number of persons – and at times much closer to the happening of the accident – that he pushed the tailgate before it fell.
[25] The first such statement in time was made by Mr Thomas to his immediate supervisor, Mr Howard, two days after the accident. In an incident report dated 4 August 2010, the account which Mr Thomas gave Mr Howard is recorded. It was as follows: “Grant had finished unloading tipper, when he noticed the tailgate hanging. When tried to push it back into place, the opposite side latch released, causing the tailgate to hit the ground. The drivers side hit the ground first, with the other side hitting Grant Thomas crushing his foot”.
[26] The second such statement was made by Mr Thomas to a Workplace Health and Safety Officer, Ms Vandermaat, when interviewed on 23 August 2010. It was in writing and signed by Mr Thomas. In it, Mr Thomas gave this account: “I noticed tailgate twisted. Left side was hanging down, right side was hanging from top latch. I walked to back of truck and pushed on bottom right corner (not much force) & tailgate popped off. … When I pushed on tailgate I thought it might fall back into the tray of the truck and I could take it back to the depot. I am aware of the procedure to contact the office (usually Guy, Paula or Mel) in the event of damage to the vehicle but thought I could get the tailgate to fall into the tray by pushing before I rang.”
[27] When Mr Thomas was cross-examined about this account, he agreed that he had given it because he had “signed it”, but said that he could not recall Ms Vandermaat visiting him in hospital and that he would have been “high on morphine” at the time; the implication being that this account could not be relied on.
[28] Although Mrs Thomas provided some support, when giving evidence, for the assertion that her husband required heavy medication at the time when the account was given, Ms Vandermaat also gave evidence on this point. She recalled that Mr Thomas was “speaking quite fluently” and “happy enough”. Ms Vandermaat also said that, after taking his statement, she read it back to Mr Thomas and then gave it to him to read. She asked him to make sure “that he was happy with the content before he signed it”. I accept Ms Vandermaat’s evidence in these respects.
[29] It is also to be noticed that the account provided to Ms Vandermaat was a reasonably detailed one. It was also a considered account. For example, an explanation is advanced for why Mr Thomas did not immediately contact the depot office and, in the part of the account dealing with Mr Thomas pushing the tailgate, it contains the qualification that “not much force” was used.
[30] In all of the circumstances, including that its contents are generally supported by the other statements which Mr Thomas made in the aftermath of the accident, I am satisfied that it is appropriate to rely on the account which he gave to Ms Vandermaat.
[31] The third such statement was made to Ms Cox, a Workplace Health and Safety Inspector, on 14 October 2010. Again, it was in writing and signed by Mr Thomas but, this time, it also contained two paragraphs which Mr Thomas added in his own handwriting.8 In this account, Mr Thomas said: “When the concrete was all out I lowered the hoist or truck tray by internal control and I noticed from my side mirrors that the tail gate had twisted and partly fallen off the truck on the left hand side. I had been in the truck the entire time and up until this point I could observe that the tailgate was intact. I had not left the truck at this point. Once the hoist/truck tray was down I got out of my truck and I saw that the tailgate had come off on the left hand side of the truck where it is hinged. I stood in front of the middle of the tailgate at the back of the truck and pushed it and the right hand side popped off and fell onto my left foot. I observed the right hand side lever come off the tailgate when the tailgate collapsed with it. Prior to me pushing the middle of the tailgate I could see how the left side was hanging down that the hinge had broken. Therefore, I proceeded to push it in the middle so that it would slide back onto truck and out of harms way and then as mentioned above the right hand side collapsed the entire weight of the tailgate came onto my left foot.”

[32] When cross-examined about this account, Mr Thomas agreed that it had been provided by him but said, “I didn’t push [the tailgate] … I only thought it”. He asserted, in effect, that any reference to pushing the tailgate should be taken as the expression of some unfulfilled intention on his part which he had not put into execution before the tailgate fell.
[33] Mr Thomas also said that he could only recall providing “bits and pieces” of the statement to Ms Cox and that he had not read it before signing it. This is despite the feature that, just above the place where Mr Thomas signed the statement, the following endorsement appears: “I have read and adopt this statement contained in the foregoing pages numbered pages 1 to 4 that was made by me on the date below. The information contained in the statement is true and correct to the best of my knowledge.”
[34] Further, the statement provided to Ms Cox was used to support, and was attached to, Mr Thomas’ Notice of Claim given under the Personal Injuries Proceedings Act 2002 (Qld) on 16 March 2011 and which was declared by Mr Thomas pursuant to the Oaths
Act 1867 (Qld) to be “true, correct and complete in every respect”. It was also attached to a Notice of Claim for Damages given under the Workers’ Compensation and
Rehabilitation Act 2003 (Qld) on 9 January 2012, which was similarly declared by Mr Thomas to be “true, correct and complete in every respect”. No reservation was expressed on either occasion about the accuracy of the statement he gave to Ms Cox, although Mr Thomas seemed to be suggesting in evidence that he may not have read it at the time he signed the Notices to which it was attached.
[35] I found Mr Thomas’ attempts to explain away the very clear account he provided to Ms Cox to be unconvincing. I have no hesitation in concluding that, not only did Mr Thomas provide that account, it is likely that he again confirmed the accuracy of its contents prior to signing both Notices.

[36] It is, in any event, inconceivable that Mr Thomas did not read over the statement provided to Ms Cox before he signed it, particularly when regard is had to the endorsement referred to earlier and the feature that one of the paragraphs he added to that statement was in these terms: “I’m not on medication that would impair my ability to recall events”. By the addition of this paragraph, he was careful to make plain that its contents were unaffected by medication and, for that reason, reliable. It would strain credulity to think that Mr Thomas added that paragraph without also checking that the typed contents of the statement were accurate in every respect. Equally, it is difficult to accept that he did not check those contents again before signing the Notices unless, as well may be the case, he was already quite satisfied that they were accurate.

[37] The fourth such statement appears in a history taken by Dr De Leacy, a consultant psychiatrist, on 29 September 2011. It is recorded in Dr De Leacy’s report of 4 October 2011 as follows: “After dumping the load he noticed the tailgate was damaged and was partly dislodged off the back of the truck. He left the cabin of the truck and attempted to push the tailgate into position but it fell and landed on his foot.”
[38] Mr Thomas said that he could not recall providing this history to Dr De Leacy. When Dr De Leacy was called to give evidence he confirmed that, although he had not consulted his notes, the source of the history recorded in his report was Mr Thomas. I am satisfied that was so and, in this respect, observe that the letter of instructions from Mr Thomas’ solicitors to Dr De Leacy contained this statement of the circumstances of the accident: “Our client had driven a tip truck to the tip to dump blocks of concrete. After dumping the load, he noticed that the tail gate had twisted and partly fallen off the truck on the left hand side. Our client left the cabin of the truck and attempted to push the tail gate onto the back tray of the truck. The tail gate fell and landed on his left foot.”
[39] These out-of-court statements as to the happening of the accident are to be preferred to the evidence which Mr Thomas gave on the same subject at trial. The statements were made much closer in time to the accident and each has Mr Thomas pushing the tailgate immediately before it fell. The statements also support the conclusion that the passenger’s side bottom corner of the tailgate was not resting on the ground but was suspended from the latch at the top of the tray on the driver’s side of the truck.
[40] In addition, the out-of-court statements establish that Mr Thomas pushed the tailgate for a reason. Although the expression of those reasons was not uniform and the stated objectives were not likely to have been physically possible, it cannot be seriously doubted that Mr Thomas decided to attempt to do something with the tailgate to enable him to take it back to the Council workshop in, or on, the truck. Neither the differences in expression used by Mr Thomas nor the impracticality of what he was attempting to do affect that conclusion. Nor do I regard the feature that different statements were made by Mr Thomas to Ms Vandermaat and Ms Cox regarding the place along the tailgate where Mr Thomas pushed16 as affecting the overall reliability of those accounts.

[41] For the above reasons I find that, when Mr Thomas walked to the rear of the truck to view the damage, the tailgate was hanging from the latch on the driver’s side of the tray. No part of it was resting on the ground. Instead, the tailgate was hanging at an angle to the ground with its only point of attachment to the tray being the latch at the top of the tailgate on the driver’s side of the truck. I find that Mr Thomas took up a position behind the truck, and most likely close to the driver’s side of the vehicle. He then pushed the bottom corner of the tailgate on the driver’s side of the truck in an attempt to either push it back into position or slide it onto the tray so that, if successful, he could then drive back to the Council workshop for the assessment and repair of the tailgate. I find that Mr Thomas pushed the tailgate deliberately, and with that purpose in mind.

[47] Quite apart from the evidence of Mr Howard and Mr Hinde, which I accept, the problem with placing any reliance on Mr Thomas’ evidence as to the size of the concrete pieces loaded onto his truck is that, in order to do so, I would first need to accept that none of the concrete pieces which Mr Thomas saw being progressively loaded as they were extracted from the side of the road was of any greater size than 300 to 400 millimetres in length, width or depth. As mentioned above, the segments of curbing that were extracted by Mr Hinde were all 600 millimetres wide, between 250 millimetres and 280 millimetres deep and up to 1.5 metres long. Although many, if not all, of those pieces were no doubt broken as they were extracted and then loaded, it is highly doubtful that all such pieces were reduced in width or length to the degrees suggested by Mr Thomas. In order for Mr Thomas’ account to be accepted, it would be necessary to find that virtually all pieces of concrete were reduced in size by breaking to no greater than 400 millimetres in width or length. In the absence of some determination by Mr Hinde to break up each piece of concrete in that way before loading it onto the truck – and there was no suggestion in the evidence to that effect – I cannot accept that the concrete pieces were as small as Mr Thomas described.
[48] Instead, I find that the pile depicted in Mr Howard’s photograph was discharged by Mr Thomas from his truck immediately prior to the accident. That pile contained many pieces of concrete substantially in excess of 400 millimetres in length or width and included at least one piece that was approximately one metre in length and 600 millimetres in width.

The defective hinge pin

[49] The evidence at trial regarding the nature and origin of the partial thickness crack in the hinge pin as well as its detectability in advance of the accident was extensive. The reports of two engineers – Mr Kahler and Dr Grigg – were tendered by the parties, as well as a conclave report prepared by both.24 Each engineer also gave evidence. In general, I found the evidence of Dr Grigg on topics where his opinions differed from those expressed by Mr Kahler to be more persuasive. In particular, Dr Grigg impressed me as someone whose opinions were accompanied by a high degree of objectivity, as well as practicality.

[52] To my mind, the probabilities favour the conclusion that the crack occurred during manufacture. The manufacturing process required the steel bar to be “cold worked” to bend it into the required shape. If the bar had been bent too far, it would then have needed to be restraightened. Such “working” of the bar could well have caused the crack and, further, caused a significant loss of ductility to the point where the affected portion of the bar was left (as it was later found to be) in a brittle state. Support for this conclusion is to be found in the absence, on examination by UQMP, of any of the usual characteristics of a fatigue-caused crack such as “beach marks” and, as I discuss shortly, the feature that there has been no prior, or subsequent, occasion in the experience of the Council of a hinge pin breaking – as opposed to bending – due to operational use.

[54] Turning then to the question of the detectability of the crack, Dr Grigg doubted whether the crack would have been “visible”, although he thought that a fine line would have been visible in the painted surface. Mr Kahler thought that such a line would have been accompanied by rust and, in that sense, the crack was capable of being seen. Either way, both engineers agreed that, for the crack to have been detected, attention would have needed to have been “strongly directed” to the area where it was situated unless the inspector either had personal experience of such a crack or a checklist drawing his or her attention to that area. In other words, any person assigned the task of checking or maintaining the tailgate would have needed to know in advance of any inspection conducted for that purpose that the possibility existed for the hinge pin to crack at the point where the subject fracture occurred. Absent such knowledge, there would be no reason for such a person to strongly direct his or her attention to that area of the hinge pin.

[55] In this regard, the evidence adduced at trial was uniformly to the effect that there had been no other instance, either prior to the accident or to the date of trial, where a hinge pin had broken. On the other hand, there was any number of prior instances where a hinge pin was found to be bent, either on visual observation or because the tailgate was not sitting flush with the tray. Moreover, prior to the accident, the Council never received any notification or safety alert warning of the potential for hinge pins to break.

[57] In addition to this requirement of prior knowledge of the possibility that the hinge might fail through the hinge pin breaking – as opposed to bending – there are other reasons that told against the detection of the crack in this case. In the main, these reasons are based on the opinions expressed by Dr Grigg, which opinions I accept. In the first place, the crack was situated on the underside of the hinge pin and, for that reason, difficult to see unless removed. Secondly, the crack was not in a location of maximum bending moment, and was remote from any welded joint, so that it was not in a region of the hinge pin that one might expect to be compromised or vulnerable. Thirdly, the weight of the tailgate would tend to compress the crack and make it difficult to see. Lastly, the crack was painted over and, although a thin line in the paint may have been visible along with some rust, those indicators alone would not be enough to draw attention to any underlying problem because cracked paint accompanied by rust featured in many places on the tailgate as part of the usual, and expected, wear and tear of that equipment through operational use.

[58] Both engineers were of the opinion that the load Mr Thomas discharged immediately prior to the accident must be taken to have imposed a significant force on the tailgate which, in turn, applied a large force to the hinge pin. I accept that this occurred. I also find that the hinge pin, already compromised by the pre-existing crack, broke in consequence of this force.

[59] As to the contribution (if any) which Mr Thomas made by pushing the tailgate, I have already found that – after the hinge failed – the only point of attachment between the tailgate and the tray was the latch at the top of the tray on the driver’s side of the truck. Dr Grigg said that the tailgate would thereby have been in a “precarious” position and Mr Kahler was of a similar opinion, describing the tailgate as “metastable” and, for that reason, susceptible to a disturbing force.
[60] Dr Grigg was of the opinion that there was a “high probability” that the force applied by Mr Thomas when pushing was the “last straw” that caused the tailgate to fall to the ground. Mr Kahler also agreed when cross-examined that it was “more likely than not” that pushing caused the tailgate to fall, provided Mr Thomas was indeed pushing it at the time it fell.

[61] Both engineers also accepted that it was possible that the tailgate could have dislodged from the latch without any intervention on the part of Mr Thomas. However, I do not think it is at all likely that such a scenario – the tailgate falling spontaneously – occurred in this case, particularly when regard is had to the feature that Mr Thomas pushed the tailgate immediately prior to it dislodging. In addition, there is no suggestion in any of the out-of-court statements made by Mr Thomas, for example, that the tailgate offered no resistance as he pushed it.
[62] In the result, I find that there was a direct relationship between Mr Thomas’ push and the dislodgement of the tailgate from the latch. Specifically, I find that the push applied by Mr Thomas was the disturbing force which caused the tailgate to dislodge and fall on his left foot.

[72] None of the inspections or checks referred to above had any particular focus on the hinge pin, other than the need to apply grease. There was certainly no awareness of, or instruction about, the need to look for cracking of the hinge pin.

[74] The Council carried out a Hazard and Risk Evaluation of the activity described as “loading and unloading trucks” in 2008. It did not identify any hazard associated with the tailgate other than to ensure that it was closed and locked with the safety chain engaged before driving the truck.
[75] Drivers were not given any training or instructions about how to discharge a particular load. They were given instructions about what to do when confronted with damage to the vehicle but, beyond that, they were expected to make their own assessment of each load in order to determine whether to discharge under the tailgate swinging on its horizontal axis and when to adopt the alternative method of swinging the tailgate out of the way.
[76] As to this, it should be kept in mind that Mr Thomas was employed, and then hired, as an experienced driver and operator of trucks. The resume he submitted bespeaks that. As Mr Dalton, the operations coordinator of the Council’s fleet, explained when giving evidence, the drivers who were employed or hired by the Council were already experienced and trained in the operation of the trucks; that was an essential prerequisite for the tasks which the Council required them to perform. Mr Howard reinforced the same point; the Council expected all drivers to be “fully experienced” before they are engaged. Further, on the question whether loads should be discharged under the tailgate swinging on the horizontal axis or swung completely out of the way, he said: “There’s only two ways to do it, and … an experienced operator would be able to identify which way he should be tipping. … The Council wouldn’t tell an experienced operator what he should do. He should … be able to assess the situation and go ahead and perform his job.”
[77] Mr Thomas’ experience as a truck driver and operator could not be questioned. From a young age, he had learned about “tipping operations and how to drive a truck” through his grandparents and parents. By the time his services were hired by Charleson Labour Hire to the Council, he was a highly experienced truck driver and operator. Mr Thomas was well aware of the correct tipping procedures and, in particular, he agreed when giving evidence that he “fully well knew” when to swing the tailgate and when to tip the load under the tailgate operating on its horizontal axis. Further, he agreed that he did not need to be instructed about those matters because he already knew about them through his own experience.

[79] Importantly, Mr Thomas accepted that, for the size of the concrete blocks depicted in the photograph taken by Mr Howard, the tailgate should have been swung around to the outside of the passenger’s side of the tray. In other words, such a load should not have been tipped under the tailgate operating on its horizontal axis. Mr Hinde and Mr Dalton – each of whom was shown the same photograph – agreed. The same implication is also to be found in the statement Mr Thomas provided to Ms Cox. Mr Thomas said: “The task of unloading of items was the normal process involved with tipping loads. However, at the time of the incident the load contained small pieces of concrete. Therefore it did not require me to swing the tailgate. Normally if it had of been larger pieces of concrete it would require me to manually swing the tailgate. By this I mean would unlatch the right side of the tailgate and swing it over to the left side to latch back to the truck.”

[80] Evidence was received at trial from a number of witnesses as to an appropriate instruction that could have been given to a driver such as Mr Thomas regarding when to discharge a load under the tailgate swinging on its horizontal axis and when to swing the tailgate out of the way. For example, Mr Kahler expressed the opinion that the tailgate should be swung in any case were the load consisted of solid material over 200 to 300 millimetres in size, but Dr Grigg thought that 300 millimetres would be “getting beyond the limit”. An engineer employed by the Council, Mr Gutteridge, would have taken a different approach. In a record of interview which was tendered, Mr Gutteridge expressed the opinion that a load which was capable of fluid movement (such as sand) could be discharged under the tailgate but, if the load contained any solid material, the tailgate should be swung. A risk assessment carried out by the Council after the accident resulted in the promulgation of written procedures to include a focus on these very issues, although it was perhaps not formulated as well as it could have been. This risk assessment was carried out on 6 August 2010, and the resulting revised procedures were promulgated on 11 August 2010. Subsequently, the Council carried out a more comprehensive risk assessment in December 2010, which resulted in a range of new administrative controls. Lastly, in the Amended Statement of Claim, it is pleaded that drivers ought to be instructed that “the tailgate should be swung about a vertical axis when the material size is greater than 300 millimetres for solid material rather than swung on a horizontal axis”.

[81] Such evidence, and contentions, rather missed the point. Not only were those formulations informed by the circumstances of the subject accident, whichever one might have been adopted and then expressed in training and instructions to truck drivers prior to the accident, it could not have added to Mr Thomas’ store of knowledge at the time of the accident, that is to say, that the load pictured in Mr Howard’s photograph should only have been discharged after the tailgate was swung completely out of the way.

[84] Although there was evidence to the effect that drivers could exercise their own discretion whether to attempt to effect minor repairs, it could not seriously be suggested that Mr Thomas was entitled to believe that it was permissible for him to attempt to do anything with the hanging tailgate other than to report it to the depot office. Indeed, Mr Thomas agreed that he required no directions or instructions not to touch, push or approach the tailgate when it was so obviously damaged. He agreed that it would be a “stupid and reckless thing to touch the tailgate and push it” in those circumstances. He did not need anyone to tell him that he should be careful in that situation. In particular, Mr Thomas accepted that it would be “silly and reckless to get in a position where” the tailgate could fall on him.

[85] In the end, and although Mr Dalton agreed that Mr Thomas had been a good worker, responsible, reliable and punctual and, further, believed that Mr Thomas would follow an instruction when given, the fact of the matter is that Mr Thomas knew that he ought to have swung the tailgate completely out of the way before he made any attempt to discharge the relevant load. He also knew that he was not to approach such obviously damaged equipment as the tailgate but, to instead report the damage to the Council.

[86] As Mr Thomas’ employer, TLH owed to him a non-delegable duty of care.59 His host employer, the Council, also owed a duty of care to Mr Thomas.60 In deciding whether there has been a breach of either duty of care: “…the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”61
[87] In the course of deciding whether an employer has provided a safe system of work, it is necessary to consider whether such a system was enforced and maintained and, in that regard, the possibility of negligence, inadvertence or carelessness on the part of the employee when carrying out the work must be taken into account.62
59 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.
60 TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1.
61 Wyong Shire Council v Shirt (1980) 146 CLR 40.
62 McLean v Tedman & Anor (1984) 155 CLR 306; Czatyrko v Edith Cowan University (2005) 214 ALR 349.
[88] There is also, and ultimately, a question whether any of the alleged deficiencies in the system of work bore a causal relationship to the happening of the accident, the answer to which depends, to no little extent, on the discoverability of the crack in the hinge pin, the foreseeability that such a defect might develop, and Mr Thomas’ store of knowledge at the time of the accident.
[89] However, once it is appreciated that the load which Mr Thomas emptied included large pieces of concrete curbing – and many of which were substantially greater in width or depth than 400 millimetres – the position, so far as liability is concerned, becomes clear.

Given the composition of the relevant load, Mr Thomas well knew that the tailgate should have been swung out of the way. It was not. Instead, Mr Thomas discharged the load under the tailgate and, as I have found, when he did so, sufficient forces were applied to the tailgate to cause the hinge pin – already weakened by the pre-existing defect – to snap through. This left the tailgate hanging at an angle, with its only point of attachment with the tray being the latch on the driver’s side of the tray.
[90] Observing through the passenger’s side mirror, Mr Thomas saw the tailgate hanging. He knew what he was obliged to do, that is, to make contact with his supervisor to report the incident and await further instructions. Mr Thomas said in evidence that, in order to do so, he needed to first take a better look. Although there was some debate during the trial as to whether such a course was permissible, Mr Thomas can hardly be criticised for alighting from the cabin of the truck in such circumstances. Apart from anything else, it was necessary for him to provide an accurate report to his supervisor, and that could hardly be done based on observations made through the passenger’s side mirror.
[91] However, having left the cabin of the truck, Mr Thomas knew that he needed to stay well clear. The danger posed by the hanging tailgate should have been obvious to him. Indeed, when giving evidence, Mr Thomas accepted that to be so. Knowing, therefore, that it was dangerous to do so, Mr Thomas pushed the tailgate with the consequence that it fell on his left foot.
[92] The system of work in place at the time of the accident substantially relied on the experience of drivers and operators such as Mr Thomas. Although the defendants were entitled to rely on the common sense and experience of its drivers and operators,63 criticisms can be made of such a system because on-the-job experience is variable in both quality and duration. A system of work that depends on such variables may be difficult to enforce or maintain. As against that, the variation in the composition of loads drivers were required to carry may have meant that a “blanket rule” could not have been adequately developed.64 But, either way, here there could be no question that Mr Thomas knew how to correctly assess the relevant load and what to do in the case of the load in question – to swing the tailgate completely out of the way before discharging it. Similarly, because of the instructions that were in existence at the time of the accident – requiring damage to equipment to be reported and for there to be no attempt on the part of the driver to repair any such damage – as well as Mr Thomas’ own experience and common sense, he knew not to go near the hanging tailgate.

63 Bourk v Power Serve Pty Ltd & Ors [2008] QSC 29, [51] to [57].
64 Parsons v JJ Richards & Sons Pty Ltd [2008] NSWCA 331, [35].
[93] For Mr Thomas, it was argued that a risk assessment of the tipping operations would have revealed that it was necessary for there to have been in place a maintenance and inspection regime to identify structural defects, as well as training and instructions about the type of load that could be safely tipped through one of the two alternative methods. I do not agree. For the reasons earlier expressed, the expected mode of failure of the hinge pin was bending. Not only had there been no prior instance where a hinge pin had broken, but all prior instances involved bent hinges. Indeed, this past experience on the part of the Council must have reinforced a belief that the hinge pins would not break; rather, they would bend if placed under undue stress and, if that happened, the tailgate might be misaligned with the opening of the tray, but it would remain attached.
[94] Furthermore, the material out of which the hinge pin was manufactured was supposed to be ductile. Although in this case the hinge pin was brittle due to a manufacturing error, in all other cases it is to be inferred that the hinge pins were sufficiently ductile to bend rather than break. It follows that, had a risk assessment been carried out prior to the accident which was focused on the hinge pins, the mode of failure would have been expected to be bending. As such, there would have been no reason to identify “structural defects in and around the tailgate and its component parts” as a relevant, or foreseeable, risk.
[95] For the same reasoning, it is unsurprising that, under the system of maintenance adopted by the Council prior to the accident, none of the employees assigned to the task of checking or maintaining the tailgate were alerted to (1) the possibility that a hinge pin might crack and break or (2) the need to make a close inspection of the region of the hinge pin which fractured in this case to ensure that there were no cracks. Nor would it be reasonable to expect, given the state of the Council’s knowledge at the time of the accident, that an instruction to that effect ought to have been given to those employees. The maintenance and inspection procedures which were in place at the time of the accident were adequate in my view to guard against known risks. On the other hand, the crack in the hinge pin was neither to be expected nor reasonably discoverable.
[96] It was submitted on behalf of Mr Thomas that there was a foreseeable risk of a “tailgate or hinge being damaged” by “poor operator procedure” in “failing to tip properly” and a similar submission was made with respect to damage to the truck. It was then submitted to have been reasonably foreseeable that, if there was not a safe system of work in place with respect to the tipping operations, drivers and other employees, including Mr Thomas, would be exposed to risk of injury. Although the existence of a foreseeable risk of damage to the tailgate, the hinge and, indeed, the truck may be accepted if loads were not discharged using the appropriate method, it was not reasonably foreseeable that the hinge pin would break, instead of bend, when put under stress. In the absence of a complete failure of the hinge pin through breaking, it is difficult to see how a driver such as Mr Thomas could have been put in a position of danger merely because the hinge pin might bend. In such circumstances, it cannot be said that a risk of injury to a driver and operator such as Mr Thomas through an entirely different mode of failure – breaking – was reasonably foreseeable and such as to give rise to a duty of care to guard against such a risk.
[97] But, even if a duty of care did arise, Mr Thomas’ claim would fail in any event through lack of proof of causation. None of the deficiencies in the system of work alleged on behalf of Mr Thomas had any causal bearing on the happening of the accident. Mr Thomas knew all that he needed to know to correctly assess the load, discharge it properly and to stay well clear of damaged equipment. such as a hanging tailgate.
[98] It only remains to be said that there is no suggestion in the evidence that Mr Thomas was under any particular time imperative to empty the relevant load. Nor was the task he was undertaking at the time of the accident “repetitive” or “tedious” in the sense described in McLean v Tedman. Mr Thomas was an experienced driver and operator who made a deliberate decision to discharge the load under the tailgate swinging on its horizontal axis, rather than adopting the alternative method which he knew should have been used. He then placed himself in a position of obvious danger before making a conscious choice to push the tailgate.

[99] For the above reasons, Mr Thomas’ claim against both defendants must fail.

David Cormack – Brisbane Barrister & Mediator

NB: Appeal by the plaintiff dismissed – Thomas v Trades & Labour Hire Pty Ltd (in liq) & Anor [2016] QCA 332


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