The runaway van and the contractor

06 April 2021

In Issue

Matters in issue were:

  • Factually, the cause of the van rolling, the relevance of a safety alert issued about the van and the relevance of a direction provided to the plaintiff to not turn the van off when undertaking deliveries;
  • Legally, the nature and extent of the duty of care a principal contractor owed to its contractors / workers of contractors.

The background

Mr Acciarito (the plaintiff) started a company called ASG Sixty One. Through ASG Sixty One, the plaintiff undertook deliveries for Anthony Parcel Services Pty Ltd (APS), an Australia Post contractor. When he was undertaking a delivery to a residence in May 2015, he parked the van on a slope. When returning to the van after making his delivery, the van started to roll, knocking the plaintiff over and running over his shoulder.

The delivery van the plaintiff was driving (and had been driving for around 7 months) was supplied to him by APS, and the transmission for the van, including how to place it into park, had certain idiosyncrasies associated with its operation. Prior to the incident, Australia Post had issued a toolbox talk that warned drivers to ensure, inter alia, that the hand brake was properly applied. The plaintiff signed a document stating that he had understood the toolbox talk, but submitted at trial that this information was not provided to him.

The plaintiff argued that as APS supplied the van, and provided some instructions to the plaintiff regarding how the van was to be used, its duty to the plaintiff extended to providing specific training in the operation of the van, which it failed to do, and that if the handbrake was misapplied this was mere inadvertence. APS argued that the cause of the van rolling was a failure of the plaintiff to properly apply the handbrake and his decision to park on a slope, and that these risks were not specific to his employment and were fully within his control. Further, as an experienced delivery driver the plaintiff was responsible for the system of work he utilised, including with respect to how the van was to be parked.

The decision at trial

The court held with respect to the factual issues that:

  • the cause of the van rolling was the plaintiff’s failure to properly apply the handbrake and his decision to park where he did;
  • the instruction by APS to not turn off the vehicle was an instruction to do so only when it was safe;
  • APS was entitled to rely on the plaintiff’s signature on the safety alert as evidence that he understood the risk of not applying the handbrake properly.

With respect to the issues regarding the duty of care, the court held that the risk of an improperly applied handbrake was not unique to the plaintiff’s employment and the plaintiff ought to have appreciated this risk, and his failure was not mere inadvertence. Further, the plaintiff was an experienced delivery driver who did retain control over the system of work used when undertaking deliveries. He was responsible for familiarising himself with the van’s transmission, choosing the location where he parked, determining how he parked the van and properly applying the handbrake. His failure to do so did not amount to a breach of duty on the part of APS.

Implications for you

This case supports the position that a principal contractor’s duties will not extend to ensuring a safe system of work unless there are cogent reasons to do so. Where a contractor undertakes their work with relative independence (even where equipment such as a van is provided to them), the contractor will be responsible for their own safety and the decisions they make. It also highlights the importance of properly identifying the relevant risk, as this will inform the precautions which ought to be taken, and who is responsible for implementation of the precautions.

Acciarito V Anthony Parcel Services Pty Ltd [2021] VSC 78

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