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Site operator shares liability with negligent heavy machinery operator distracted by mobile phone call


Distraction reaction

A site operator has been ordered to share the damages bill with a negligent worker and subcontractor employer after the ACT Supreme Court found that the site operator’s safety rules and practices were deficient.

A site operator has been ordered to share the damages bill with a negligent worker and subcontractor employer after the ACT Supreme Court found that the site operator’s safety rules and practices were deficient.

In 2012, Huon Contractors Pty Ltd (Huon) conducted work on a subdivision development in the ACT. Huon had engaged numerous subcontractors to work at its site, including a worker from a subcontracting firm called Kuna Contractors Pty Limited (Kuna) and an individual subcontractor who was engaged as a machine operator to use an eight tonne excavator.

On one particular occasion in March 2012, the machine operator was moving loads of gravel using the excavator when he received a call from his daughter on his mobile phone about the death of her partner the night before. The machine operator talked to his daughter over the phone using a set of headphones leaving both hands free to operate the excavator.

Site rules insufficient

Huon had a site rule against workers using mobile phones while operating heavy machinery. However, in practice, the machine operator kept his phone with him as supervisors from Huon sometimes called him to alter work instructions throughout the day.

Huon had another site rule stating that if a person wished to approach heavy machinery that was in operation, that person must first make eye contact with the operator of the heavy machinery from outside the exclusion zone so that the operator was aware of that person’s presence. The machine operator was aware of both of these site rules. In the past he had complained to a Huon supervisor that on a number of occasions other workers had approached him in the excavator without adhering to the eye contact rule.

At the time the machine operator was on the phone to his daughter inside the cabin of the excavator, a Kuna worker needed to speak with him about the placement of the gravel loads being moved. The Kuna worker raised his arm to attract the machine operator’s attention and believed he made eye contact, although the machine operator was wearing sunglasses and the Kuna worker could not see his eyes. The Kuna worker said that the machine operator also gave him a “reverse nod” in acknowledgement, so he approached the excavator.

The machine operator was not aware of the Kuna worker’s presence in the exclusion zone and accidentally lowered the stabilising blade of the excavator onto the Kuna worker’s foot as he opened the cabin door.


Apportionment of liability

The Kuna worker suffered serious injuries and sued the machine operator, Kuna and Huon for damages. The machine operator accepted that he had acted negligently by using his mobile phone whilst operating the excavator and admitted that his actions had caused injury to the Kuna worker. Kuna also accepted its part in the accident and it agreed to settle the matter along with the machine operator.

Huon, on the other hand, denied that it bore any responsibility for the injuries or the actions of the machine operator.

With two out of three defendants having accepted liability and agreed on an amount of damages, the Court was to decide if Huon breached a duty of care to the Kuna worker and if so, what percentage of the damages it should pay.

Huon argued that the Kuna worker’s injuries were caused by the machine operator’s negligence and not by anything done (or not done) by it. Huon also argued that there was nothing unreasonable about the safety systems it had in place such that it should be held liable.


Duty of care breached

The Court found that Huon owed a duty of care to the Kuna worker because it was in control of the site where he and the machine operator performed work, it issued safety directions onsite and, was responsible for directing the work of both the Kuna worker and the machine operator.

The Court found that Huon had breached that duty of care because its safety rules were deficient and it failed to act on reports of non-compliance. The Court commented that the eye contact rule was an insufficient safeguard against potential injuries and Huon’s safety rules generally needed to be stronger. Ultimately, the Court held that Huon’s breach of its duty of care to the Kuna worker was causative of his injuries and it was therefore liable to pay damages.

The Court ordered that Huon pay 40% of the damages, the machine operator pay 40% and Kuna pay 20%. The total of amount of damages was $830,000.00 plus $95,000.00 in costs.

Reminder to employers

This case is a good reminder to employers of the importance of workplace health and safety and the use of mobile phones in the workplace. Employers should have strong safety policies that are specific and clear. Employers must ensure that actual work practices are consistent with the safety policies.


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