A council that was forced to pay 60 per cent of damages towards a building firm employee who was injured on the job has failed to convince the NSW Court of Appeal that it did not owe him a duty of care.
The construction company was conducting roadwork for the council as part of a contracting project in outback New South Wales when one of its staff members severely hurt his back while coupling a fuel tanker to the rear of a caravan.
Court documents indicate the 50-year-old worker now has a permanent disability that prevents him from carrying out routine duties. He was awarded $435,664 in damages as a result of the accident.
The incident occurred in 2008 when the employee was required to connect four vehicles to one another – a roller, a four-wheel-drive car, a caravan and a fuel tanker.
This was so the entire fleet could be moved to the next location in a single trip, saving the council and the contractor money. However, the fuel tanker was missing a jockey wheel at the front of its trailer, which meant the worker needed to expend great effort lifting it into place so that it could be coupled.
Despite complaining to his employer and the council on several occasions that the wheel was missing, no replacement was organised and he was asked to continue performing the task or risk losing his job.
The appeal decision
The courts heard the missing wheel contributed to the jockey wheel forks falling out of their bracket while the worker was lifting the trailer, which meant he was left holding the tanker’s weight. A sharp pain in his back caused him to drop the trailer.
According to the original judge, both the employer and the council were aware of the defects on the fuel tanker trailer. Furthermore, not only did they neglect to provide safe equipment but continued to ask the worker to perform the coupling task without support.
During the appeal, the council suggested that it did not owe a duty of care to the employee and that it could not reasonably have known that the missing wheel would cause an accident in the way it did.
However, while the appellate judges acknowledged that a 60 per cent share of the responsibility was at the top end of the culpability for the council, it rejected the appeal and upheld the original decision.