When danger invites rescue, is there contributory negligence?

07 June 2022

The Victorian Supreme Court found a driver who did not properly engage the handbrake on a street sweeper and was severely injured when attempting to stop the vehicle did not contribute to the incident.

In issue

The issues before the Court were:

  1. Whether the defendant breached its duty of care to the plaintiff to avoid foreseeable risk of injury;
  2. Whether the plaintiff had “overwhelmingly” contributed to the incident as alleged by the defendant.

The background

The plaintiff was a 49 year old former professional athlete, and, after migrating to Australia in 2002, began competing in ultra-marathons. Between 2012 to 2015 the plaintiff worked as a personal care attendant in aged care at the same time as obtaining a certificate IV in work health safety, and an advanced diploma in occupational health and safety. It was the plaintiff’s ambition to work in occupational health and safety. In order to further her qualifications, the plaintiff attempted to gain industry experience and spent time in a number of organisations performing various roles. In May 2017 the plaintiff was placed with the defendant through a labour hire arrangement, in the position of a street sweeper driver.

The plaintiff had a medium rigid truck licence, and was provided with two weeks “on the job” instruction which predominantly involved observing other drivers. After that period, the plaintiff began operating street sweepers alone. The type of vehicle involved could vary and, while the vehicles were automatic, they did not have a “park” gear position. To secure the vehicle, the handbrake had to be engaged while the vehicle was in neutral.

On 5 July 2017 in the course of work the plaintiff pulled up in a parking bay 8 meters from a 7-Eleven store. Her evidence was that she left the engine running but engaged the handbrake. Evidence at trial suggested this was common practice among the defendant’s drivers.

The plaintiff exited the sweeper and entered the store. Shortly afterwards, she noticed the sweeper rolling towards the store. The plaintiff ran to the sweeper with the intention of opening the door and stopping the vehicle as she was concerned for the safety of the people in the store. However, she slipped and ended up in front of the vehicle. She was crushed between the vehicle and a wall and suffered severe injuries.

The defendant had previously undertaken an investigation into “rolling incidents” as a result of a previous incident. The outcome of that investigation was a corrective action plan in which the defendant would undertake administrative and engineering actions, including further training and guidance in parking, use of the handbrake and the specific operational risks and hazards of each particular vehicle (by March 2017) and the installation of an alarm system in all trucks to indicate if the handbrake had not been activated, when the door was opened (by June 2017).

The decision at trial

The cause of the incident was either the failure to engage the handbrake sufficiently, or at all. It was not necessary to determine which had occurred in this case.

The Court found the defendant had no record of when the administrative action had been completed and there were only limited records regarding the engineering action, indicating it had been delayed. No substantive reason for the delay was provided. Alarms were eventually fitted to the sweepers approximately 6 months after the plaintiff’s incident at a cost of approximately $500 per alarm. Further, it was found that although the defendant did not provide instruction to its drivers about leaving the handbrake on while the sweepers were running, this was a practice that it was aware of, and condoned. The Court held that the defendant had breached its duty of care to properly train and instruct the plaintiff, and failed to install handbrake alarms.

The defendant alleged the plaintiff had overwhelmingly contributed to the incident by failing to engage the handbrake and by “jumping” in front of the sweeper. The Court found this was a case in which the duty of care owed by the defendant required it to “take steps in anticipation of and to avoid the risk of inadvertence, inattention or misjudgement by the sweeper drivers.” This was reinforced by the investigation the defendant had undertaken into rollaway incidents and the corrective action plan.

The Court also found the plaintiff had not “jumped” in front of the sweeper. In commenting on the plaintiff’s intention to attempt to enter a moving vehicle and take control, the Trial Judge said: “the law should be slow to judge people harshly for instinctive reactions of a selfless and community spirited kind.” This is particularly so in circumstances where the negligence of the tortfeasor created the danger.

Implications for you

This case demonstrates the need to thoroughly and promptly follow through in implementing a response once risks have been identified. If there are delays in responding to an identified risk, there should also be a clear record of the cause of the delay and the reasons for not being able to take alternative action. The decision is also illustrative of the Court’s reluctance in making a finding of contributory negligence where the victim finds themselves in an emergency situation and acts instinctively and in the interest of protecting others.

Hooper v Citywide Service Solutions [2022] VSC 239

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