Finding in secure loading failure case sees transport firm's weighting lowered
Freight customers can on occasion face a greater liability than transport and logistics employers over a workplace accident, lawyers point out.
HopgoodGanim Lawyers senior associate Brooke Jacobs and solicitor Elizabeth Harvey were commenting on a recent New South Wales Court of Appeal case, Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345.
It relates to an incident where unsecured underlay rolls belonging to RFI (Aust), trading as Regen Foam, and described as “the principal contractor” or “principal”, seriously injured an Allied Overnight Express storeman on being unloaded form a pantech.
“This case is another example of a principal being liable for a contractor’s employee’s injury, in this case the principal in fact facing a greater exposure than the employer,” the lawyers write of an appeal that was centred on the weighting of the damages between the companies.
“The fact that employers owe a high standard of care to workers does not necessarily translate into employers facing a greater liability exposure than principals.
“A principal can be liable for injury, even if suffered within the sphere of a contractor’s expertise, in circumstances where the principal has ‘control’ over the system of work.”
The issue of “control” arises because RFI’s failure to properly restrain the full load was found to have created a “hidden risk of injury”.
The original decisions saw RFI and Allied assessed as equally at fault because Allied’s inspection system only required workers to check for loose rolls of underlay visible from the ground level.
“The Court accepted that a proper system of inspection would have mandated inspecting the load from a higher vantage point, to ensure an adequate view of the top of the load,” the lawyers say.
“Such a system would have enabled Allied’s workers to identify the risk posed by only three of five braces being in place prior to attempting to unload the delivery.”
But the appeals court ruled that RFI’s failure was the incident’s primary cause and increased its responsibility to 75 per cent.
The lawyers note that, earlier this decade, in the Baiada Poultry case, which has some similarities, no responsibility for injury was attributed to the employer.