Following a crash in September 2019 while working, a truck driver has been ordered to pay $545,312 plus interest in damaged to the business he was contracted to and the business that utilised the carrier service after it was found that his mobile phone use caused the crash. The worker, rolled the B-Double on the Bruce Highway after veering off the road at 97km/h, suffering critical injuries himself, while the vehicle was extensively damaged and its load of produce was completely destroyed.

The CCTV in cab exception and incident footage, shows that the worker was distracted by his mobile phone prior to the crash.  A call had come through but had failed to pair to his Bluetooth headset, so the employee was looking down at the phone and swiping to rectify when he lost control of the vehicle.

The worker was employed by a labour hire company and contracted to drive for a transport company (Plaintiff A) who was transporting produce for a client (Plaintiff B).  Both Plaintiff A and Plaintiff B pursued the worker for damages arising from the crash.

The worker argued that Plaintiff A was negligent and complicit in the damages as it did not provide him with a vehicle that had inbuilt Bluetooth.  The worker also argued that Plaintiff B was negligent and complicit in the damages as it (along with Plaintiff A) put undue pressure on him and set unreasonable delivery targets.  These arguments were rejected noting that inbuilt Bluetooth would have been just as prone to issues as the headset and it was the workers choice to break the law and operate the phone while driving that was the cause of the accident, while further noting that according to all records fatigue management requirements were met at all times.

In awarding the damages the Judge noted the unusual nature of the case drawing attention to the fact that the employer is usually vicariously liable for the actions of its employees, while noting that this remains a fact, however, despite this vicarious liability, nothing prevents interested third parties (such as Plaintiff A and B) from “suing the employee directly”.

In handing down his decision the Judge noted that the employee was “sub-bailee for reward of the plaintiffs ‘goods and truck” and as such was required to exercise a duty of care to keep both the truck and the contents safe and that by engaging in the “illegal” act of operating a mobile phone while driving, that the employee had breached that duty and the plaintiffs were entitled to seek damages.

Learnings for all businesses

This is a rare situation, but it is an important reminder for staff particularly – there is no excuse for breaking the law, particularly safety laws – and breaches may result in not only loss of employment, but in particular circumstances, may result in additional punitive damages when third parties are involved.

 Here to Help

 HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au, it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/ for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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