By Stuart Eustice, Partner and Holly White, Lawyer

In May 2021 we provided a case note on John Acciarito v Anthony Parcel Services Pty Ltd [2021] VSC 78, in which the plaintiff commenced proceedings against APS after sustaining injury caused by his delivery van unexpectedly rolling down a hill. APS hired the plaintiff as a contractor and provided him with a delivery van. The plaintiff argued he was not provided with adequate training by APS. Keogh J found the incident was caused by the plaintiff’s failure to sufficiently apply the handbrake and the claim was dismissed.

The plaintiff sought leave to appeal Keogh J’s decision on the grounds that Keogh J ought to have found APS owed the plaintiff a duty of care. In February 2022, the Victorian Supreme Court of Appeal refused the application.

The Court of Appeal in dismissing the appeal, agreed with Keogh J’s finding that the plaintiff was an experienced driver and it was his responsibility to learn how to safely operate the delivery van given to him by APS. APS was entitled to assume that if the plaintiff was unaware of any aspect of operating the van, he would ask for assistance or consult the manual. Furthermore, it was the plaintiff’s decision to choose where to park and his responsibility to ensure the van was secure and did not move.

Readers are reminded that all drivers, including independent contractors, should be aware that they are responsible for knowing the features of each vehicle they drive and are required to continuously assess the safety of the vehicle while operating and parking the vehicle.

https://aucc.sirsidynix.net.au//Judgments/VSCA/2022/A0013.pdf