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Despite the negligence of the workers, QCA still requires the contractor to take responsibility

A recent ruling by the Court of Appeal emphasized the high standards of care taken against construction contractors to take reasonable care of workers’ safety and the difficulty of obtaining a joint negligence ruling.

Partner Anna Hendry, lawyer William Findlay, and vacation clerk Ethan Henwood reviewed Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264, in which the appellant was injured while throwing a 4 to 5 kg shackle at the excavator operator. The operator moved to grab the shackle and in the process knocked the lever in the excavator cab. The movement of the lever caused the excavator arm to move and hit the appellant, causing him to be injured.

In the trial, the district court found that Savco was not responsible for the injury. However, this decision was overturned on appeal.

The excavator is operated by Mr. Harris, the site foreman. Both the appellant and Mr. Harris were employed by non-district court subcontractors.

Savco allowed or allowed Mr. Harris to operate the excavator. Mr. Harris has not received formal training in excavator operation, and his experience is limited to a dozen times.

In the cabin of the excavator, immediately to the left of Mr. Harris, there is a lever. For safety's sake, the boom of the excavator can be disengaged.

When he was injured, the appellant was removing a set of shackles from the boom of the excavator. He took off each fetter, and after calling Mr. Harris, he threw the fetters to Mr. Harris.

When Mr. Harris went to grab one of these handcuffs, he hit the lever that operated the boom, causing it to move quickly to the left, and hit the appellant from the truck, causing him to be injured.

Since the appellant did not seek damages from his employer, there is no alternative liability argument for Mr. Harris’s actions. Savco believes that even experienced and competent operators may be careless. This is Mr. Harris’s negligence, not his lack of experience, which is the cause of the sudden movement of the boom.

Judge McMurdo delivered the main verdict. Her findings are summarized as follows:

During the trial, the district court judge commented that if she found that the injury was caused by Savco's negligence, she would reduce the appellant's damages by 80% to explain the joint negligence.

In her judgment, Judge McMurdo overturned this finding. Although she agreed with the appellant's negligence, the judge stated that if it were not for Savco's negligence, the risk of injury related to the operation of the machine would be greatly reduced. Therefore, Your Honor cannot accept that the appellant should be more responsible for the accident than Savco. She was reduced by 20% due to joint negligence alone.

In the judgment he partly opposed, Judge Bond disagreed with Judge McMurdo's assessment of joint negligence. In his view, Savco and the appellant should be considered equally responsible for the damage suffered. Therefore, he supports a 50% reduction in common negligence, rather than the 20% set by Judge McMurdo and advocated by the majority.

The decision emphasized the extremely high standards imposed by Queensland courts on defendants in personal injury cases, especially workplace injury cases. Although Savco lacked the training of Mr. Harris and the control of the appellant's own wrongdoing, the court overturned the trial decision and held Savco liable.

The ruling also shows that the threshold for seeking a substantial reduction in contributory negligence in personal injury matters in Queensland is high. In the event that the accident might not have occurred if it were not for the appellant's own actions, Savco is still primarily responsible for the appellant's injury.

In high-risk environments, such as operating heavy machinery on construction sites, employers and site operators must ensure that all risks are minimized. All measures shall be taken to minimize the impact of the negligence of employees and subcontractors, such as training, supervision and regular on-site inspections.

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