Apportionment of liability – causal potency of breach - Anthony Paul Muller v Klosed Pty Ltd & Ors [2021] VSC 360

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By Emma Bing, Lawyer

The plaintiff, Mr Muller, was a truck driver for the first defendant, Klosed Pty Ltd (Klosed), driving a prime mover towing two tautliner trailers. The first defendant owned the prime mover and the second defendant, TNT Australia Pty Ltd (TNT), owned the tautliner trailers. The third defendant, Redstar Transport Operations Pty Ltd (Redstar) was engaged by TNT to perform safety inspections, servicing and necessary repairs on the trailers.

In the course of his work Mr Muller was required to move large steel gates on the side of each trailer so that they could be unloaded. Each gate was suspended from a chain and bolt attached to a set of rollers which ran along a track at the top of the trailer. In March 2015, in the course of his employment with Klosed, Mr Muller was injured when the bolt attaching a gate to the trailer fractured. The gate fell.

In the time he worked for Klosed, Mr Muller towed two sets of trailers. At the end of each week he met with another driver between Melbourne and Sydney, and they would swap trailers for the following week. The incident involved the “A” trailer. Mr Muller said he had trouble with the front gate of the A trailer since the time he commenced driving for Klosed in early 2014.

TNT had a system in place (via a Work Method Statement) whereby its employees would report any defective or sticking gates. Mr Muller did not report the issues he had with the gate, on the assumption that TNT would report the defect, as its loaders and forklift drivers used the A trailer on a daily basis. Klosed had not provided Mr Muller with any guidance surrounding the reporting of any defects. Redstar was responsible for servicing the trailers and undertaking safety inspections of trailers at the TNT depot.

Decision

Keogh J accepted that the track the gate in question moved along was uneven, bumpy and worn, and that there was rubbing contact between the bolt and the track resulting in wear to the bolt. Mr Muller experienced the same difficulties moving the gate for the whole time he worked for Klosed prior to the incident. The Court accepted each defendant was then liable to Mr Muller and he was awarded damages of $465,000.

Keogh J found TNT liable for 45%. Contrary to its own Work Method Statement no action was taken by TNT workers to report the defective and sticking gate. Further, TNT was aware of a history of bolts falling from trailers and did not warn Mr Muller of this possibility nor provide him with training to allow him to avoid injury should such a scenario occur.

Keogh J found Redstar also liable for 45% as it was Redstar’s job to identify defects or problems with the attachment system, and that the problems described by Mr Muller should have been identified. Had Redstar met these obligations the bolt would have been replaced and the incident would not have occurred.

Lastly Keogh J found Klosed liable for 10%. A reasonable employer should have been aware of the issues Mr Muller was having with the gate and at the very least, reported it to TNT.

Commentary

This apportionment in relation to injuries caused by truck gates accords with the decision of Meli v Ceva Logisitics, wherein the employer, whilst unable to escape liability altogether, was considered not in the best position to have assessed or reduced the risk of injury.

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