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Responsibility for Injury to Another Party’s Employee

The issue of liability for injury sustained by delivery driver Raymond Pocock at a customer's premises was recently considered in the Queensland District Court decision of Pocock v Citi-Steel Pty Ltd [2018] QDC 81. Pocock’s employer could not be sued due to legislative restrictions in place at the time. He therefore sued only Citi-Steel which had a commercial arrangement with his employer for the delivery of steel products to Citi-Steel’s customers using the employer’s trucks and drivers.

The incident

Citi-Steel conceded that it prepared the run sheets and loaded the vehicles but maintained the drivers had a degree of discretion to vary the run sheets or reconfigure the loads if necessary.

On the day he was injured in September 2014 Pocock was required to deliver three steel checker plates weighing approximately 356kgs and various lengths of steel bar to one of Citi-Steel’s regular customers which usually had someone available to unload the steel plates with a forklift. On this occasion it was noted on Pocock's run sheet that no one was going to be present to receive the delivery and he was to unload the plates using the crane fitted to the truck. Pocock’s evidence was that he had no experience in operating cranes on trucks prior to working for the employer.  Although he had completed a crane operation exercise with another driver during his induction, this only involved manoeuvring the hook of the crane onto pieces of timber and he was not trained to unload steel plates.

The steel plates (which were required to be at the back of the tray) were overhung by other deliveries of steel and, as the crane did not quite reach the end of the tray, he manually shifted the plates half an inch at a time until the slings were no longer caught on the obstructing steel. This resulted in injury to his shoulder.

It was apparent from the evidence that the removal of steel plates by use of the truck-mounted crane was a rare occurrence and the obstruction of steel products by other products was not a frequent occurrence although it did happen at times.

System of work

The consulting engineer who gave evidence at the trial considered the run sheet should have been structured so that the steel plates were unloaded last (which would have added approximately 45 minutes to the delivery run) or, alternatively, the driver could have been allocated an extra 45 minutes to 1.5 hours to allow him to unload the obstructing materials, unload the steel plates, and then reload the other materials. In his evidence Pocock indicated he felt there was pressure to complete his deliveries in the usual timeframe of 20 – 30 minutes each although Citi-Steel’s evidence was that no time restriction for deliveries was imposed due to the number of variables which could be encountered which might result in delays.

Duty of care

In considering liability the trial judge had to determine:

  • whether Citi-Steel created a risk of injury to Pocock and should have taken steps to alleviate that risk
  • whether Citi-Steel owed Pocock a duty of care analogous to that owed by an employer and, if so, whether that duty was breached
  • whether there was a lower “ordinary" duty of care owed by Citi-Steel to Pocock which was breached
  • whether Pocock contributed to his own injury.

The trial judge was not prepared to conclude that Citi-Steel owed Pocock a duty of care similar to that of an employer as, in his view, this was not a host employer situation where complete control of the work activities was assumed by Citi-Steel.  He found that Citi-Steel was entitled to assume the drivers had the necessary skills to undertake the delivery tasks including the operation of a truck mounted crane.  Further, Citi-Steel had no role in the training of the drivers, did not impose strict time limits for deliveries, allowed the drivers a degree of discretion in the way in which they carried out their tasks and made it clear that rearrangement of the loads could be requested. It was not in dispute that Pocock had been instructed to contact Citi-Steel’s dispatch manager if problems arose with the delivery.  

Nonetheless, the trial judge found that Citi-Steel had a duty to establish a safe system of work and to give Pocock appropriate instructions having regard, on this occasion, to the fact that he would have to unload the steel plates by himself.

The trial judge concluded that Citi-Steel breached its “ordinary” duty of care to Pocock by failing to establish a safe system for unloading the steel plates at the customer's premises on the day of injury. However, the trial judge reduced the damages by 25% for Pocock’s contributory negligence in failing to follow training guidelines for the operation of the truck mounted crane or, alternatively, failing to contact Citi-Steel’s dispatch manager when he encountered the situation that the crane did not reach the position of the steel plates on the truck.

The decision in this case reinforces the need for parties to commercial arrangements to identify the duty of care owed to another party’s workers, who are engaged in the performance of the contractual tasks, and to take reasonable steps to avoid a foreseeable risk of injury to such workers.

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