By Stuart Eustice, Partner, Holly White, Lawyer and Georgia Sim, Law Graduate

Background

The plaintiff, Mr Acciarito, worked as a delivery driver for the defendant, Anthony Parcel Services Pty Ltd (‘APS’) performing deliveries for Australia Post. When he was making a delivery, Mr Acciarito parked his van (with the engine running) and while standing at the open passenger door it unexpectedly moved backwards, down a hill, trapping him between the van and the door and causing him serious injuries.

There was a factual debate about whether the incident was caused by a mechanical fault or Mr Acciarito’s failure to either properly secure the handbrake and/or leave the van in reverse because he was unfamiliar with the semiautomatic transmission.

Mr Acciarito brought proceedings against APS in negligence and for breaching duties under the Occupational Health and Safety Regulations 2007 by instructing him to leave the engine running, failing to provide a safe van, and/or failing to provide adequate training.

In cross-examination, it was revealed that drivers were only instructed to leave the engine running “when it was safe to do so” and they decided where to park and how to secure the vehicle.

Decision

Keogh J held that there was no breach by APS and the incident was caused by Mr Acciarito’s failure to sufficiently apply the handbrake. APS did not owe Mr Acciarito a duty to train him on how to drive the van because he was an experienced delivery driver.

Mr Acciarito gave evidence that he was unfamiliar with the transmission, submitting APS had not provided him with sufficient training. APS had given Mr Acciarito safety information about the hand break feature prior to the accident, however Keogh J held it was not under any obligation to draw Mr Acciarito’s attention to any specific part of the safety information.

Keogh J noted the van’s previous driver was also unfamiliar with the transmission when she started driving the van but had asked her predecessor how to use the gear shift. Mr Acciarito had been driving the van for several months prior to the incident and had plenty of opportunity to ask his predecessor for help, which he had not done so.

Keogh J compared the situation to that of an ordinary driver, finding that all drivers are under a responsibility to acquaint themselves with the different functions of each vehicle and safely secure their vehicles.

Implications

• All drivers, including independent contractors, should be aware that they are responsible for knowing the unique features of each vehicle they drive and are required to continuously assess the safety of the vehicle while operating and parking the vehicle
• Principals must provide adequate safety information to contractors, however, this does not extend to drawing a driver’s attention to any specific parts of safety information provided

Principals should always have contractors sign off on safety information as the signature provides evidence that the contractor is aware of the risks and the precautions to take