Safety practices were in place as driver fails to prove case
The lack of a provable link between any conceivable safety training regime lapse and a subsequent injury has seen a negligence claim fail in the Ipswich district court.
While the judge made no specific comments regarding the defendant fleet-owner’s good risk practices, it is possible to infer some positive effect from it.
In the Beavan v Wagner Industrial Services case, the court heard that the company employed a workplace health and safety officer who had formerly been a driver trainer, its agitator trucks were subject to a National Heavy Vehicle Accreditation Scheme (NHVAS) checking regime, and the driver himself had undergone company training.
The judge found the experienced driver “was aware of the need to follow occupational health and safety procedures and that his driver’s manual stressed the importance of daily vehicle inspections.
“He agreed that there were maintenance workshops available if his truck needed repairs. The trucks were regularly serviced and if there were any faults in the truck the driver was required to enter them in the vehicle log.”
The driver, who the judge described as honest and his evidence as consistent and reliable, suffered a career-ending back injury when his use of a vice grip to lift a truck door locking pin caused him to fall awkwardly when the pin came loose.
The judge noted that “the difficulty in assessing whether the training was insufficient was that there was no evidence of the fault in manual handling training or what additional training would be necessary for Mr Beaven to have decided not to act in the way that he did on the day in question.
“As such there is no evidence to suggest that had he had further training in relation to risk assessment that he would have acted any differently than he did on the day in question particularly given that he had no knowledge of the pre-existing vulnerability in his back.”
Legal observers this month have noted the impact on this case of a last year’s influential Woolworths Ltd v Perkins case, where it was found necessary to define the measures which the employer failed to adopt ‘would’ protect the employee from injury, not that ‘could’ or ‘might’ have done.
“This is the latest in a series of decisions following the Court of Appeal decision in Perrins v Woolworths,” Hall & Wilcox special counsel Sean Sullivan writes.
“In Perrins case, the Court of Appeal noted that mere proof of a deficiency will not automatically result in success for a plaintiff and that the plaintiff still bears the onus of showing that the negligent act or omission was directly causative of the injury.”
This is backed by Lee Lawyers, which comments that an employer “is not required to safeguard against all risks; only those that are ‘reasonably foreseeable’ in the circumstances”.
Corney&Lind Lawyers echoes this saying the case “illustrates that an employer will not be liable for the injury of an employee where adequate training failed to be provided, if it cannot be shown that an employee would have acted differently in the same circumstances with appropriate training.
“Furthermore, it also demonstrates how the court must be satisfied of the ‘real chance’ that training would have protected the employee from the proposed harm.”
But seemingly against the grain of the evidence, its analysis takes more critical tack.
“This case demonstrates the continued difficulty which an employee faces against employers for personal injury claims,” it says.
“Despite the lack of adequate training provided by an employer, an employee still bears the onus of proof in proving to the court that the system of work creates a risk of injury and further that the employee would have acted differently on the day with training.
“The Court must also be satisfied that training would protect the employee not just the chance it could or might in the future.”