September 20, 2015

The tipper was one of many belonging to the Gold Coast City Council vast fleet fitted with a hydraulic tray and a cab-controlled tailgate that swung on a horizontal axis to allow a load to be discharged underneath.

As was well known to driver Grant Thomas, he also had the option to swing the tailgate on its vertical axis completely out of the way by disengaging the clasps on one side and sliding home a hinge pin on the opposite side.

In August 2010, Thomas chose the former method, rather than swinging it out of the way to avoid potential damage from the broken up concrete kerb he was dumping in large pieces.

As the tray rose and the rubble slid down, Thomas noticed – in his mirrors – the tailgate had apparently fallen from its upper hinge on the passenger side.

His inspection at the rear of the tipper confirmed the malfunction.

Wanting to understand more of the failure, he gave a push to the driver’s side of the tailgate that appeared still to be hinged at the top.

As soon as he did so it suddenly fell and landed heavily crushing his left foot.

After several surgeries and long periods of hospitalisation, Thomas made an incomplete recovery and the 57-yr-old has not been in gainful employment since.

He sued the GCCC and his labour hire employer alleging an inadequate system of work, and sub-standard machinery inspection methods.

Unbeknown to anyone, the hinge connecting the tailgate to the top of the tray on the passenger’s side had cracked – probably due to a manufacturing fault – and the impact of the concrete rubble had caused it to snap.

Inspections and hinge greasing occurred regularly – with the particular hinge inspected only a month earlier – although never for the purpose of detecting a crack.

There was in fact, no prior recorded instance of such a hinge – presumed to be “ductile” –snapping.

While there was clearly a duty to conduct regular inspections to detect bent hinge pins – known to occasionally to occur – Supreme Court Justice Martin Burns ruled there was no such duty to examine them for potential cracks.

But even had the court found such a duty to exits, it was not the failure of the hinge pin that caused the accident. Rather, so said the court, it was Mr Thomas’s own interference.

Had he called in assistance to assess the damage – as he was required to do – rather than “disturbing … the tailgate”, the accident would never have occurred.

And had he swung the tailgate out of the way – as was required for loads of that type – the already weakened hinge would not have been exposed to the pounding from concrete blocks that caused the hinge “to snap through”.

Thomas v Trades and Labour Hire Pty Ltd & Anor [2015] QSC 264 Burns J 08/09/2015

Categories: Personal Injury , Litigation & Law Practice

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