Court decision

QCA unshackles damages claim

By Anna Hendry / 13 December 2021
5 min.
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Worthwhile read for: Construction contractors, mining contractors and public liability insurers

QCA holds contractor liable, despite worker’s negligent actions

A recent Court of Appeal decision has emphasised the high standard of care imposed on construction contractors to take reasonable care for the safety of workers and the difficulty in obtaining a finding of contributory negligence.  

Partner Anna Hendry, Solicitor William Findlay and Vacation Clerk Ethan Henwood review Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264, in which the appellant was injured when he threw a shackle weighing 4 to 5 kg towards the operator of an excavator. The operator moved to catch the shackle and, in doing so, knocked a lever in the cabin of the excavator. The movement of the lever caused the excavator boom to move and strike the appellant, leading to his injuries.  

At trial, the District Court found that Savco was not liable for the injury. However, this decision was overturned on appeal.

Background

The excavator was operated by Mr Harris, the site foreman. Both the appellant and Mr Harris were employed by a subcontractor that was not a party to the District Court claim.

Savco either permitted or allowed Mr Harris to operate the excavator. Mr Harris had no formal training in relation to excavator operation and his experience was limited to having done so on around a dozen occasions.

Inside the cabin of the excavator, and immediately to the left of Mr Harris, was a lever allowing the boom of the excavator to be disengaged for safety purposes.  

At the time of his injury, the appellant was in the process of removing a set of shackles from the boom of the excavator. He removed each shackle and, after calling out to Mr Harris, threw the shackles down to Mr Harris.  

As Mr Harris moved to catch one such shackle, he knocked the lever which operated the boom, causing it to move quickly to the left, striking the appellant from the truck and causing his injury.

Primary liability 

As the appellant did not claim damages from his employer, there was no vicarious liability argument in relation to Mr Harris’ actions. Savco submitted that even an experienced and competent operator can be careless and it was Mr Harris’ negligence, rather than his inexperience, which was the cause of the sudden movement of the boom.

Justice McMurdo delivered the lead judgment. Her findings are summarised as follows:

  • Savco failed to exercise reasonable care to avoid an unnecessary risk of injury, arising from the excavator being operated by someone who was not sufficiently experienced and trained to do so; 
  • Savco’s actions created or substantially increased the risk that by unsafe operation the machine might cause injury to a person working near it;
  • the risk resulting from Savco’s actions eventuated.  As such, on a “broad common sense view” Savco caused the appellant’s injury; 
  • therefore, Savco should be held liable for the appellant’s injuries.

Contributory negligence

At trial, the District Court judge commented that if she had found that the injury was caused by Savco’s negligence, she would have reduced the appellant’s damages by 80% to account for contributory negligence.

In her judgment, Justice McMurdo overturned this finding. While she agreed that the appellant had been negligent, Her Honour stated that if not for the negligence of Savco the risk of injury associated with operation of the machine would have been considerably less. As a result, Her Honour could not accept that the appellant should bear greater responsibility for the accident than Savco. She made a reduction of only 20% for contributory negligence.

In his partially dissenting judgment, Justice Bond disagreed with Justice McMurdo’s assessment of contributory negligence. In his view, Savco and the appellant ought be regarded as equally responsible for the harm suffered. Accordingly, he supported a reduction of 50% for contributory negligence, rather than the 20% set out by Justice McMurdo and contended for by the majority.

Takeaway points

This decision emphasises the extremely high standard imposed by the Queensland courts on defendants in personal injury matters, particularly injuries arising in the workplace. Despite Savco’s lack of control of Mr Harris’ training and the appellant’s own errant actions, the Court still overturned the trial decision and held Savco liable.  

The judgment also demonstrates the high bar for seeking a significant reduction for contributory negligence in Queensland personal injury matters. In circumstances where the accident arguably would not have occurred but for the appellant’s own actions, Savco was still held predominantly liable for the appellant’s injury.

In high-risk settings, such as the operation of heavy machinery on construction sites, it is important that employers and site operators ensure that all risks are minimised. All steps should be taken to minimise the impacts of negligent behaviour of employees and subcontractors, such as training, supervision and regular site inspections.
 

Authors
Anna Hendry
Partner
Anna is a Partner who advises exclusively in insurance litigation, acting on behalf of major public liability insurers, workers’ compensation insurers and self-insurers, compulsory third party insurers and professional indemnity insurers.

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