Written by Peter CarterJuly 25, 2012
It turns out that alighting from truck cabs and earthmoving machinery is indeed a hazardous affair, the subject of well-documented research and its own body of science.
Fortunately so for our plaintiff Heinz Schmidt – a 60 yr old career trucker – whose district court $225,000 win last month, was a tribute to the knowledge and expertise of forensic engineers Brendan McDougall and Adam Dargusch.
The tale begins in a typhoon. The heavens had unleashed their fury all day and darkness came early. Schmidt was willing the groaning Volvo B-double south from Gladstone. There were no other vehicles to be seen on the pot-hole bypass he had chosen to avoid rising waters on the Bruce Highway when he was sprung alert by the orange glow of dashboard warning lamps.
His mobile just in range, he got instructions from his boss back in Rockhampton where the downpour had by now been intensified by high winds, to kit up against the driving rain and do a flashlight foot-check of the rig and the hydraulic lines snaking from the prime mover to the trailer.
His first two attempts to troubleshoot the failure brought nothing but a drenching and a retreat to the shelter of the dry cab. He wished he was wearing the orange rubber fishing overalls stowed in the toolbox. He re-studied the manuals, steeled himself in readiness for the onslaught and with a new plan rehearsed in his head, was stepping out into the torrent again when he slipped and fell from the top tread, face down on to the mud-flooded bitumen.
Fast-forward from that ghastly night in January 2008 to the Court No 25 in the now deserted George St law courts complex with Schmidt under cross-examination about his memory of – exactly to the inch – where were his hands, feet and body, just before he fell.
So confused and inconsistent said the defendant, were his many descriptions, that Schmidt simply failed to prove what had happened and therefore his claim should be dismissed and he should pay their legal costs of the two-day trial.
“It was so slippery I just lost it” did not match up with “when I was pivoting, I just lost my footing” or with “I just lost my balance”, so ran their argument.
His honour found to the contrary: the probable inference from these various (but not inconsistent) descriptions, was that “the plaintiff slipped when attempting to exit the vehicle, he twisted his right foot, which was on the edge of the top step and the step was wet”.
WorkCover also contended, in accord with Court of Appeal precedent, that getting out of or into a truck cab was such a mundane task that there was absolutely no employer safety duty to be reviewed. In the absence of any Australian standard and because the steps met both US and European safety standards, there was also, just no design issue to be argued.
McDougall, as it happened, had been a fleet manager for Shell in a previous life, which began his fixation on the use of “optimum techniques” when gaining ingress to or egress from mobile machinery and which theories he had since deployed widely to various industries.
He and Dargusch – both mechanical engineers of the Intersafe group – had given extensive training to diverse operators about the “turn to face inward in the cab” alighting method and Dargusch had indeed designed several access systems of the very type in issue, for use with prime movers, tankers and fixed plant. Their views overwhelmingly accepted, the court ruled a reasonable employer would have provided a safe system of work, implemented a risk assessment, devised and documented a method to safely exit the prime mover, Neil Armstrong style; trained employees in the method; and monitored their compliance.
The haulage company had not done this – although it since displays safety placards in all truck cabs advocating the backwards descent method – and hence WorkCover was responsible for Schmidt’s losses which had been agreed at the $225k figure.
The decision has more than enough technical information, courtesy of Dargusch and McDougall, to guide anyone conducting machinery step slip cases, along the right path; or so to speak, to take the correct steps. The need for a “true backwards descent”; “area rather than line contact for the foot”; “at least three functional points of contact at all times”; and “increased slip resistance at nosing edges”, being the major take-outs.
So as this decision well illustrates, a small step can leave a big footprint.
WorkCover unsuccessfully appealed this decision, with the Court of Appeal delivering its judgment on 18/12/2012.