Public Liability Insurer Fails to Establish Employer Negligence

  • Newsletter Article
  • Published 14.09.2021
Turner v Carrington Ginning Pty Ltd (NSWSC 2021)

Key Takeaways 

  • An employer may not be held liable if there is an adequate safety system in place, which the worker did not comply with.
  • Any inconsistencies in the worker’s evidence as to the mechanism of injury should be carefully scrutinised.

Brief Facts

The worker was employed by T&FS Woods Pty Ltd (the employer). He was responsible for transporting cotton bales using a B-double truck and trailer to the premises of the defendant, Carrington Ginning Pty Ltd (Carrington). 

Carrington’s own forklift drivers unloaded the trailer. During this process one of the cotton bales was pushed or nudged from the trailer. The bale fell off and struck the worker in the head.

The worker sued the public liability insurer of Carrington in negligence. Carrington in its defence of the claim asserted that the employer was also negligent and pleaded s151Z(2) of the Workers Compensation Act 1987 (the Act) to reduce the worker’s damages.

There were inconsistencies in the worker’s evidentiary statement, oral evidence at trial and histories recorded by the qualified medical experts in their reports. The worker insisted at the trial that he was given the ‘green light’ by one of the forklift drivers to move away from the ‘safety zone’ and move toward his trailer to adjust struts and curtains. This was denied by the forklift drivers in their evidence.

Judgment 

Justice Cavanagh, after weighing up the competing evidence, found the following:

  • The cotton bale fell when one of the forklift drivers nudged it off the trailer as the worker was working on the other side of the trailer.
  • It was noted that Carrington’s system in place instructed that truck drivers:
    • should not leave the ‘safety zone’ whilst forklifts are unloading the trailers; and 
    • forklift drivers should not be unloading any trailer unless the driver is in the safety zone.
  • Both the worker and the forklift drivers failed to comply with the acknowledged system of work put in place by Carrington. 
  • There was doubt as to whether the worker was given the ‘green light’ to leave the safety zone and approach the trailer.
  • The forklift drivers, in any event, should have seen that the worker was not in the safety zone.

His Honour held that the worker was guilty of contributory negligence in failing to take reasonable care for his own safety and reduced his damages by 35%.

Justice Cavanagh addressed Carrington’s defence under s151Z(2) of the Act and ruled as follows:

  • The employer was not (notionally) liable in the circumstances because the worker did not need additional instructions from the employer about not approaching the trailer whilst unsafe to do so.
  • His accident was not caused by any shortcomings in Carrington’s loading system but, rather, a failure on the part of the forklift drivers and the worker in complying with that system.
  • The employer (if sued) could not be held liable to the worker.
  • As Carrington did not establish liability in the employer, it was not entitled to any reduction in damages payable to the worker under s151Z(2).

Implications

Whilst an employer’s duty of care to its employees is non-delegable, an employer will not be liable if the worker (and other third party employees) depart from a safe system that would have completely prevented the accident in question had the system been followed.

Insurers and employers should, for accidents that occur on third party premises, consider seeking indemnity under s151Z against the third party liable for any payments made to the worker.

David To

Special Counsel

P: 02 8257 5700

Email David