Winiata Desi Derio Walmsley v Suez Recycling & Recovery Pty Ltd (NSWDC 2022)

Key Takeaways

The onus to prove a common law liability in the employer rests with the plaintiff and a statutory liability is not enough to establish liability at Common Law. The plaintiff has to prove a positive inference when establishing liability rather than weighing up possibilities.

Brief Facts

The worker was a driver for Suez Recycling & Recovery Pty Ltd (Suez). On 26 March 2018, the worker was attempting to make a difficult left hand turn, whilst keeping his hand on the steering wheel, when he allegedly struck his right hand on a monitor fixed to the dashboard causing injury.

It was alleged that Suez was negligent in placing the monitor in close proximity to the steering wheel, which presented a risk of injury.

The evidence disclosed:

• The worker was holding the steering wheel firmly, with all four fingers wrapped around the inside of the wheel and his thumb on the outside.
• Whilst driving his hand only ever came off the steering wheel when he put pressure on his palm to pivot his hand at the bottom of the steering wheel and re-grab the wheel at the 4/5 o’clock position.
• He claimed to perform this motion five times and maintain a firm grip on the wheel throughout the process.
• His eyes were on the road throughout this process and so although he did not see his hand hit the monitor, he presumed that he did.

The plaintiff sought to rely on an ergonomist expert liability report which concluded that Suez was liable for failing to provide suitable equipment and prevent a foreseeable risk of injury. That conclusion was based on the assumption that the monitor was in close proximity to the steering wheel and that the plaintiff hit his hand on the monitor. However, during cross-examination the expert conceded that if the plainitff’s hand was gripped firmly around the steering wheel it would be less likely that the plaintiff could have hit his hand on the monitor.

The defendant called the worker’s supervisors to give evidence in relation to the investigations they conducted following the worker’s injury to determine whether it was possible for someone to hit their hand on the monitor whilst driving. Considering the fact that no other employee had sustained an injury in this manner and having measured the distance from the steering wheel to the monitor themselves, the supervisors were of the opinion that the worker could not have struck his hand against the monitor whilst maintaining a firm grip on the steering wheel.

The supervisors also provided evidence to confirm Suez consulted with driver’s groups prior to fitting the truck with the subject monitor and required all employees to complete vehicle condition reports to ensure they were notified of any hazards that arise.

Judgment

Robison J (now retired), ‘was unable to find on the balance of probabilities’ that the worker struck his right hand on the monitor whilst performing his duties. In making this decision, Robison J considered the following:

• Plaintiff’s counsel made submissions to the effect that it was possible for the worker to hit his hand on the monitor whilst his hand remained in contact with the steering wheel. However, Robison J noted that although the Court ‘can draw reasonable and rational inferences from admissible evidence… the Court has to be careful not to ‘throw up a balance of possibilities and see where each possibility may land…’
• The worker gave evidence which Robison J considered to be a ‘presumption that his hand hit the screen’.
• In reference to Jones v Dunkel, Robison J further reiterated that the Court cannot ’choose between guesses’. It was determined that the plaintiff failed to provide evidence to establish both the negligence of the employer and the factual basis of his claim.
• With respect to the foreseeability of the risk of injury, Robison J also noted the evidence of the defendant’s witnesses which explained their consultation with a drivers group in implementing the monitor within the cabin of the truck, the use of 17 trucks with the same configuration and the fact that no other workers had reported the monitor as a hazard in using these comparable trucks.

Implications

Although the defendant was able to provide sufficient evidence to prove the employer discharged their duty, this matter turned on establishing the circumstances of the injury itself. This case illustrates the importance of providing affirmative evidence for the Court to make reasonable inferences.

A good example of there being a compensable work injury with no coordinate common law liability.