Written by Peter CarterUpdated on July 21, 2020
A mining construction supervisor who crashed a mobile crane he had commandeered for weekend work at his own rural property, has claimed his employer must pay him compensation for the serious injuries that resulted because it failed to warn him of inherent risks of driving the vehicle on roads.
Noel Millard argued that in February 2007, he was directed by his superiors to drive the Franna at the end of its hire period, the 180 km distance from Acland mine near Oakey to Rocklea in Brisbane, rather than to have it floated back by low loader.
“Franna” is an Australian manufacturer’s brand name for a “pick and carry” crane which has since been adopted for all machines of the type, like “biro” has for all ballpoint pens. They have much quicker set up times than conventional cranes as they have no stabiliser legs or outriggers and can “walk” a load into position. Mobility – in that they can be driven between jobs – is seen as a major benefit.
Millard claimed that the machine’s low centre of gravity and inherent instability created special dangers and that his employer should bear responsibility for the damage because the accident had occurred in the course of his employment.
The crash occurred as he was driving the machine at about 60 kph along a narrow two lane road below the Toowoomba range. He veered it left onto the shoulder, to allow room to a car to passing in the opposite direction.
In getting back into his lane, he overcorrected, narrowly missed a tree and lost control as the vehicle drifted across the oncoming carriageway and into an earth embankment. The Supreme Court at Brisbane thought Millard’s evidence to be “lacking in detail” and his testimony “lacked both clarity and certainty”.
It did not accept his “improbable” account that he was directed by his superiors to take the machine by road. Their account was that to return the crane by that means, was neither ‘logical’ nor ‘sensible’ and it wasn’t their suggestion.
More damaging however was its conclusion that – rather than returning the hire vehicle to Brisbane – Millard’s purpose was to put it to work on his own property that weekend.
The accident happened after all, not far from his home at Murphys Creek and was discovered with chains and slings aboard – borrowed from the mine – presumably to facilitate his weekend project. Millard’s case was not helped by his “noncommittal” and in some cases, “evasive”, witness box responses.
Expert evidence substantiated Millard’s claim that bumps on a road would make the Franna more prone to lose control and that “if one set of wheels was on grass and another on bitumen” the stability of the vehicle was adversely affected by the different traction acquired.
The court was not however satisfied that those features made a Franna unsuitable for driving on public roads. It dismissed that argument and his case.
WorkCover had already paid $360k in statutory benefits. Damages were assessed on a theoretical basis at five $594k, so had he been successful, Millard would have recovered an additional $235k. Instead, he was ordered to pay his employer’s legal costs.