The injured employee suffered a significant cervical spine injury when driving a bus over a major depression on a sealed road. The issues at trial related to the employer’s liability for the accident.
In issue
- The case considered the duty of care owed by employers to warn employees in relation to the risks of injury.
The background
On the night of 11 June 2015, the plaintiff was employed by the defendant as a bus driver. The plaintiff alleged he injured his cervical spine while driving a bus for the defendant that night. The plaintiff specifically alleged he drove Volvo bus number 1693 (TP 1693) over an uneven portion of road within the intersection of Cecil Avenue and Sevenoaks Street, Cannington which caused the driver's seat to violently bounce up and down and thereby caused an injury.
The plaintiff alleged that the defendant was liable for a number of reasons. The focus on the arguments being on the defendant’s alleged knowledge of the major depressions and small potholes in the intersection, and the safe adjustment of the air suspension in the seat.
The plaintiff alleged that the defendant, through its operations manager, had been made aware by another senior bus driver of several major depressions and small potholes in the intersection and that buses were being violently rocked resulting in bus drivers and passengers being shaken. The plaintiff alleged the operations manager advised a senior bus driver that he was aware of the hazards at the intersection, and he had advised Main Roads and the City of Canning of the hazards but that those parties were in dispute as to who was obliged to fix the roads. The defendant denied the operations manager had any such knowledge.
As to the seat’s air suspension, the experts confirmed that the distance over which the seat would travel depended on the height to which it was set, the weight of the driver and the amount of resistance in the suspension setting. The appropriate suspension setting was therefore individual. However, it was shown that if a driver chose a setting that was too soft for their weight and height, the seat would jolt and come to an abrupt stop when the bus encountered major depressions.
The decision at trial
The Judge rejected evidence that a senior bus driver had informed the operations manager of the major depressions and small potholes before the accident. The Judge accepted the evidence of the operations manager, and found that the defendant was not aware of the state of the road at the time of the accident.
However, the Judge held the defendant liable for the accident due to a failure to warn the plaintiff as to the risks of injury from not adjusting the air suspension on the seat. The Judge made the following findings:
- There was a foreseeable risk of injury arising if there was a forceful downward movement of the seat and an abrupt halt was foreseeable. As the risk was foreseeable, the defendant had a duty to warn drivers about the risk.
- The obvious and easy thing to do in response for the foreseeable risk was to ensure that drivers were properly informed on induction of the risks associated with having their seat on too soft a suspension setting.
- The plaintiff’s induction did include instructions as to the adjustment of the seat. The plaintiff confirmed he was instructed as to how to adjust the seat, but he alleged he was not told of the risks of having the seat on too soft a setting.
- The defendant's duty extended to ensure that a warning be given to the plaintiff about the reasonably foreseeable risk of injury when driving the bus with the seat adjusted on too soft a suspension setting and to reiterate that warning in its manual or on review or by a notice in each bus.
- There was a breach of the duty owed by the defendant, as the defendant failed to warn the plaintiff of the risk of injury from the driver's seat 'bottoming out' or coming to an abrupt halt while driving the bus when the driver's seat was adjusted to the soft suspension setting.
The plaintiff was awarded damages of $1,073,255.
Implications for you
The decision highlights the burden on employers to provide a safe system of work, as well as to provide warnings relating to risks arising from the performance of the work duties.
Ciolpan v Swan Transit Services (South) Pty Ltd [2020] WADC 95
