Industry standard equipment not enough to satisfy duty of care

Thompson v Cranetrans Pty Ltd [2013] QSC 250

Applegarth J

23 September 2013

Background

The plaintiff, a truck driver, alleges to have sustained a significant right leg injury on 24 June 2009 in the course of changing a tyre on a flat-top trailer being hauled by the prime mover driven by him. He alleges that during the course of changing the tyre on the trailer, the wheel spanner provided by the employer for use to change the tyre, slipped from the wheel nut causing the plaintiff to fall backwards from a crouching position onto his right leg.

Liability

The Notice of Claim alleged that the spanner was ill-fitting as it was calibrated in metric but the tyres were imperial size. That allegation was then replaced with a claim that the spanner was the incorrect size.

The defence was run on two bases:

· The incident did not occur as alleged; and

· There was no negligence on the part of the employer.

We relied on the evidence of the independent pilot/escort driver who gave a statement that he saw the plaintiff limping at a roadside stop and when he asked the plaintiff what had happened to him, the plaintiff told him that he hurt himself when jumping down the cabin of his truck.

Regrettably, under cross-examination the witness conceded that his recollection of events was poor.

Further, at the Compulsory Conference the plaintiff demonstrated an action that could not have caused his serious injury, which differed from his explanation and demonstration at trial.

Judgment

Essentially, His Honour found that the employer failed to provide the plaintiff with suitable equipment, namely an appropriately sized wheel spanner that was sufficient to perform the task and/or a tool which allowed him to safely re-tension the wheel nuts to their required high tension. In the absence of the provision of suitable equipment, His Honour found that the employer should not have required the plaintiff to undertake a task of changing a tyre and that a tyre specialist or mechanic with suitable equipment should have been called to replace the tyre.

His Honour accepted the evidence of the plaintiff's witness that the spanner “would become worn” (a case that was not pleaded) breaching the duty to provide safe equipment. This finding is at odds with the plaintiff's successful use of the same spanner to remove all the wheel nuts from that particular tyre and, barring the offending wheel nut which was being tightened at the time the incident occurred, and then re-tensioned them immediately before the event.

His Honour found that the employer should have provided a specialised tool to the plaintiff to re-tension the tyre nuts when drivers were changing tyres out on the road, despite evidence that the type of wheel spanner used by the plaintiff was common in the trucking industry.

His Honour also found that the employer should not to require a driver to change tyres and should instead have engaged a tyre repairer to perform that task. This was despite the plaintiff's evidence that he had changed truck tyres hundreds of times without incident.

Discussion

The key point arising out of this judgment is that where equipment is provided to an employee which accords with industry standard, then despite the fact that no other employee had been injured in using that equipment previously, that does not necessarily mean that the employer's conduct has conformed to the standard of reasonable care required by law.