Case Note: Toll Pty Limited -v- Harradine  NSW CA 374 (21 December 2016)
A recent decision of the Supreme Court of NSW Court of Appeal has set aside a judgment at first instance for an employee injured during the course of his employment for the sum of $1,070,499.00. The Court held that the Trial Judge had erred in awarding damages pursuant to the provisions of the Motor Accidents Compensation Act 1999 (“the MAC Act”) by concluding that the worker’s injuries were a result of and were caused during the driving of a vehicle (or alternatively during a dangerous situation caused by the driving of a vehicle) pursuant to section 3A of the MAC Act. The Trial Judge’s verdict had entitled the worker to damages beyond the limits imposed by the Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998, which restrict damages for work related injuries resulting from the negligence of an employer to economic loss, that is arising from past and future loss of income.
The circumstances of the worker’s injury are set out at paragraphs 9 to 13 of AJA Sackville’s judgment which are extracted as follows:
- Mr Bournes operated a forklift at Toll’s depot located in Smithfield. His duties included using the forklift to collect goods from a warehouse on site and convey them to a trailer. At the warehouse, the goods would be loaded onto a stillage attached to the forklift. The forklift, with the loaded stillage attached, would be driven to the waiting trailer. The goods would then be unloaded from the stillage and loaded onto the trailer in readiness for its departure from the depot.
- The forklift used in the present case had two tines, each about 10 cms wide. The stillage had two slips or sleeves at the base that enabled the stillage to be attached securely to the tines protruding from the forklift. The operator of the forklift should have attached the stillage by sliding the two tines into the sleeves of the stillage.
- On 16 February 2010, Mr Bournes was required to drive the forklift to the warehouse, collect a load of packaged cushions (each package weighing about 15 kgs) and convey the load to a trailer. The Worker’s task was to transfer the packages from the stillage to the trailer. The particular trailer being loaded at the time of the accident had both a lower level and an upper level. The latter was referred to in the evidence as the “mezzanine” floor of the trailer.
- On the day in question, Mr Bournes conveyed several loads of packaged cushions from the warehouse to the trailer where the Worker unloaded them. On each occasion Mr Bournes used the same stillage. He observed that one of the sleeves at the base of the stillage was either missing or broken. Nonetheless, he decided to proceed using the defective stillage. He did so simply by placing the two tines underneath the stillage, so that it rested by its own weight on the tines. Mr Bournes (and Toll) accepted that it was dangerous to attempt to move the stillage or use it to unload goods if it was not attached to the forklift in the correct manner.
- Despite the serious safety lapse, several loading and unloading operations using the defective stillage proceeded without incident. However, on about the fourth or fifth operation the stillage slipped and the Worker was injured.”
There was some ambiguity in the findings of fact of the Trial Judge which followed a contested hearing as to the precise circumstances of what occurred. The ambiguity concerned whether, at the time the stillage moved and struck the worker, the forklift was stationary, or reversing. There also seemed to be some doubt as to whether the tines of the forklift were being lowered.
Section 3A of the MAC Act is partially extracted below:
3A General restrictions on application of Act
- This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:
- the driving of the vehicle, or
- a collision, or action taken to avoid a collision, with the vehicle, or
- the vehicle’s running out of control, or
- a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
Sackville AJA undertakes a useful analysis of section 3A(1) which is set out at paragraphs 42 to 53 of his Judgment. He reasoned that despite the ambiguity of the findings of the Trial Judge, on balance he considered the Trial Judge to have concluded that the stillage struck the worker as a consequence of the movement of the forklift reversing in order that the stillage, resting on the tines of the forklift, could be lowered to the ground. His Honour considered that if that finding were indeed made out then the worker would be entitled to an award of damaged pursuant to the MAC Act.
His Honour then went on to deal at length with the adequacy of the Trial Judge’s reasons and the evidence from which he drew reached his conclusions and ultimately found at paragraph 98 that the “evidence did not establish on the balance of probabilities that the worker’s injuries were as a result of the driving of the forklift.”.
The implications of His Honour’s findings was that although the worker will be entitled to damages for his economic loss, those damages will be substantially less than he was awarded by the Trial Judge.
The decision highlights the need to give careful consideration to the circumstances of accidents involving motor vehicles, particularly those that occur in an industrial setting. The failure on the part of a Plaintiff to lead precise evidence regarding the cause of a particular accident can, as demonstrated here, have a significant impact on the damages available. The decision also serves as a reminder that the damages available under the MAC Act will generally not be available when an accident arises solely from the movement of machinery attached to a vehicle, such as the tines of a forklift, or hydraulic arm of a garbage truck, that can move independently from the driving of the vehicle.