Dorney QC DCJ
The plaintiff was injured in 2011 when the dump truck he was driving collided with the rear of another dump truck at a mine site owned and operated by the first defendant, Callide Management. The plaintiff sued both his labour hire employer Workpac Pty Ltd (the second defendant) and the first defendant.
His Honour found the first defendant’s control of the workplace and its ownership of the plant, and its relationship to the plaintiff, akin to that resulting from employment .
Liability and the assessment of damages against the first defendant mine was determined by reference to the common law, while liability as against the second defendant employer was determined under the Workers’ Compensation and Rehabilitation Act 2003
Relying on Vincent v Woolworths Ltd, Dorney QC DCJ stated:
 … where a person in the position of the first defendant takes such control as it clearly has in this case, the totality of the relationship between the parties and the ability of the occupier to control the activities which are conducted on its premises are both required to be considered in the determination of the duty, with such duty in that case being one of “a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of (the occupier’s) operations while (it was) performing (its work)”.
 At the real heart of the liability issue here are the general principles of causation, on both common law and statutory tests, and its earlier concomitant element of what a reasonable response of both defendants ought to have been.
His Honour accepted witness evidence that any similar collisions had never been heard of in 36 years and went on to state:
 This goes both to the elements of foresight and reaction on the part of the first defendant. Therefore, I accept that the likelihood of a collision like this, at least on this haul road, was insignificant. But I do accept that a risk of injury was foreseeable and that such a risk was not insignificant. Thus, a reasonable response by both an employer, noting especially those things set forth in s 305B(2) of the WCRA, and a hirer of a driver such as the plaintiff would have been not to have required anything, in these circumstances, other than appropriate training (which was clearly given), a safe road (which the plaintiff has not proved to be unsafe) on which to stop in normal circumstances of operation and an effective communication system informing drivers of unusual or unexpected impediments to travel that were not otherwise easily observable from their high visibility driving positions.
 The issue then arises as to whether, either as a consequence of alleged failures to have a system of communication which would have informed the driver of the following vehicle (such as the plaintiff) of variations from normal in the downward traversing of the haul road or to effect a better upgrading of the haul road so as to provide a higher coefficient of friction for breaking, the responsibility for what occurred is not only to be attributed to the plaintiff but also to one, or both, of the defendants. As for the latter, I have already concluded that I cannot find, on the evidence available, that the plaintiff has satisfied me of that alleged breach of duty. As for the former, there was an effective communications system provided.
 In any event, I am not satisfied on the evidence that, even if such an informing communication had been made, the act “would” have led to any different outcome given the close proximity the plaintiff had allowed to develop between the two trucks.
Dorney QC DCJ assessed damages as follows as against the first defendant:
|Interest on general damages
|WorkCover special damages
|Expenses for pain relief
And as against the second defendant:
|WorkCover special damages
|Pain relief medication
|Less WorkCover refund
His Honour was not required to determine contribution between the defendants.
David Cormack – Brisbane Barrister & Mediator