Case Note: Workplace Negligence

Hooper v Citywide Service Solutions (No 2) [2022] VSC 293

Warning: this Case Note contains references to harm and workplace injury. If this causes any distress, contact Lifeline (13 11 14) or Kids Helpline (1800 55 1800)

Background: Negligence

What is negligence?

Negligence is a civil wrong. It occurs when a party fails to take reasonable care to prevent injury (harm) to another party, who suffers harm as a result. The harm suffered can be physical, mental or economic
(financial).

In cases of civil negligence, the party who suffers harm is the ‘plaintiff’ or ‘applicant’. This party brings the case to court to seek a remedy (‘fix’) in the form of financial compensation, or damages, for the losses they have experienced or may yet experience because of their injury. This can include lost income, medical bills, psychological suffering, property damage the need for future care, adjustments to the home for disability etc. This is intended to ‘fix’ or ‘undo’ the harm caused to some extent. Where there are many plaintiffs to a claim, it is called a ‘class action’.

The party against whom the proceedings are brought is called the ‘defendant’ or ’respondent’ because the plaintiff alleges (believes) that they caused the harm. This is sometimes referred to as being ‘sued’ by a plaintiff. The defendant will respond to the allegations in court. There may be many defendants to a case as it may be considered that more than one party is alleged to have contributed to the harm suffered by the injured party/parties.

Liability

The common law regarding negligence has developed over hundreds of years and initially relied
on a contractual relationship existing between the two parties to establish the liability, or legal
responsibility, of the defendant.

However, the landmark case of Donoghue v Stevenson [1932] AC 562 (UK) broke with this precedent and established the modern concept of duty of care and the ‘neighbour principle’ – that a person or entity must take reasonable care to avoid acts or omissions that could foreseeably injure their ‘neighbour’ (other people), even if there is nocontract between the two parties.

Burden of Proof

In accordance with the presumption of innocence, the burden of proof (the responsibility to prove the wrongdoing), is on the party alleging wrongdoing – the plaintiff. This supports the principle of fairness as it ensures that the person making the claim must bring enough evidence before the court to prove wrongdoing was done and caused by the party that the claim is being made against.

To be successful in a claim of negligence, the following elements must be proven:

• • Duty of Care This is where one party has a legal responsibility to ensure the safety and wellbeing of others, and/or that reasonable care is taken to avoid foreseeable harm or loss happening to the others. For example, a shopkeeper owes their customers a duty of care to provide a safe environment for them to shop in.
  • Breach A breach occurs where there has been a failure by the party to exercise the reasonable care they owed to the other party. For example, if water is spilt on the floor of a shop, the shopkeeper will breach their duty of care if they do not put up a sign cautioning that the floor is wet because it is foreseeable that someone might slip and hurt
    themselves.
  • Causation This means that it can be proven that the defendant’s breach caused actual injury/damage (damage) which is not too remote (or removed) from the breach that occurred. For example, if a customer slips on the wet floor and hurts themselves because there was no sign indicating possible danger,there is a direct cause between the shopkeeper’s failure to put out a sign (the breach) and the harm suffered by the customer. It is also not too remote an assumption that this breach resulted in the injury of the customer.

Remedies

Remedies are the outcome of a civil court case that has found that the defendant did breach their duty of care to the plaintiff. The purpose of remedies is to restore the individual to their original state, or as close to original as possible, and, particularly in cases of negligence, may take the form of compensatory damages – a financial payment to the plaintiff. The amount awarded will vary between cases and will depend on many factors relevant to the individual case.

Hooper v Citywide Service Solutions: Facts of the Case

Julie Hooper (‘the plaintiff) worked for Citywide Service Solutions (‘the second defendant). Hooper was a former professional athlete and ultra marathon runner and joined a labour hire company (‘the first defendant’) while seeking employment in occupational health and safety.

Around May 17, 2017, she was placed in the employment of the second Defendant by the labour hire company in the role of Street Sweeper Driver. At the time, she held a Medium Rigid Vehicle License, enabling her to operate trucks, buses and other 2 axled vehicles weighing more than 8 tonnes.

On 22 May 2017, Hooper began her placement with the Citywide Service Solutions. During this time, she was required to sign two work safety method statements which focused on how the vehicle was to be safely operated. For the next two weeks, Hooper observed and drove different street sweepers while accompanied by more experienced drivers, some also from the same labour hire company.

Hooper had been driving a variety of vehicles for six weeks when the incident occurred. On 5 July 2017 at 6.30am, she began her shift operating a street sweeping vehicle, driving alone. To park this model of sweeper safely, it had to be placed in neutral, and the handbrake engaged with the engine switched off.

At 9:45am, Hooper parked the vehicle at a 7-Eleven store, leaving the vehicle running. She believed that she had engaged the handbrake and exited the vehicle. While inside the store, she noticed the sweeper slowly rolling towards the shop. Hooper ran out of the store to stop the sweeper and attempted to open the door to enter the sweeper to turn it off, however become crushed between the sweeper and the building.

As a result, she suffered severe injuries resulting in multiple surgeries and was significantly disabled following the incident. She commenced suing both Citywide Service Solutions and the labour hire company for negligence. The matter against the first Defendant was settled with the plaintiff prior to the court proceedings.

Her case against the second Defendant was heard in the Supreme Court of Victoria. In the case, the plaintiff had to prove the three elements described above to be successful in her claim against Citywide Service Solutions: duty of care, breach of duty and causation (including damage and remoteness). Hooper’ case was based on the claim that the second Defendant had:

“negligently failed to train and instruct her in respect of the handbrake in the sweeper and also failed to install an alarm system that would have alerted her if the handbrake was not engaged.” [16] 

The court had to assess if the lack of training and safety equipment directly caused Hooper’s injuries or, given she was injured in her attempt to stop the vehicle from rolling, whether her own independent actions had contributed to her injuries.

Procedural History

Following the incident, Hooper commenced proceedings for negligence against both defendants. The first Defendant settled (i.e. reached an agreement about compensation) before the start of the trial. The case against the second Defendant was heard by Justice O’Meara in the Supreme Court of Victoria across 7 days in April 2022.

Ultimately, the court ruled in favour of Hooper, finding the Citywide Service Solutions liable for negligence and awarding her compensation totalling $1,635,400 in damages.

The Supreme Court of Victoria Judgement

The plaintiff’s case against Citywide Service Solutions was based on two key failures by this defendant:

1. 1. The failure to take reasonable care in training and instructing the plaintiff in relation to the safe and proper use of the handbrake; and
   2. The failure to take reasonable care to install an alarm on the vehicles that would sound when the handbrake was not properly engaged.

As stated at paragraph [18] in the judgement, “the issues at trial were:

1. 1. The circumstances of the incident;
   2. Any liability of the second defendant;
   3. Any contributory negligence of the plaintiff;
   4. The plaintiff’s injury and the assessment of any damage.”

This means it was the court’s role to assess each of these aspects to decide who was responsible for the injuries suffered by Hoooper and whether damages are payable.

In the judgement handed down on 19 May 2022, Justice O’Meara ruled in favour of the plaintiff. The reasoning for this decision can be found by applying the elements of negligence.

Was a duty of care owed?  

The plaintiff’s claim was based on the failure of the second defendant to take reasonable care in training her and installing indicator alarms that alerted drivers to the failed engagement of the handbrake. The second defendant accepted that they did owe Hooper a ‘general’ duty of care similar to that of an employer. They were not her employer as she was employed by the temporary labour hire company.

After hearing evidence from both parties, Justice O’Meara found that:

“… the second defendant owed a duty to the plaintiff to take reasonable care to avoid foreseeable risk of injury.” [145]

Was there a breach of that duty of care?  

While Citywide Service Solutions accepted that the first element in the negligence case was satisfied, that is, that they owed a duty of care to the plaintiff, they argued that they had not breached this duty of care (the second element).

In his judgement, O’Meara J found that the second defendant had not acted reasonably and had breached their duty of care by failing to provide the correct and proper training of the plaintiff. The signing of work safety method statements and the use of other drivers as instructors was not a sufficient method of training in the court’s eyes. At no time had the defendant made steps to ensure the plaintiff had a proper understanding of the use of the handbrake.

(a) the second defendant did not act reasonably and breached its duty of care to the plaintiff – both in respect of training and instruction and the installation of handbrake alarms…” [145] 

The judge also held that the defendant’s admission that drivers were expected to know how to drive and were only instructed on the use of the sweeper was an insufficient reason for failing to instruct the plaintiff on the correct use of the handbrake. The court found that the defendant did not take reasonable steps to anticipate potential “misjudgements” by employees operating the machinery.

The court also recognised that the second defendant had previously investigated similar incidents involving “rollaway” trucks over the course of 2015 and 2016 and, therefore, were aware of the associated dangers with handbrake operation, including risk of injury or damage. Evidence that handbrake alarms were commonly used in the industry, and that the second defendant had previously investigated their installation and use prior to the incident, satisfied the judge’s belief that the Citywide Service Solutions had the required understanding of the potential dangers of the sweeper.

Causation 

His Honour was satisfied that the second defendant’s breach of care caused the injury to the plaintiff, fulfilling the third element, causation.

“…those breaches of duty of care were each a cause of the plaintiff’s subsequent injury, loss and damage.” [145] 

Defences to negligence: Contributory Negligence 

While Citywide Service Solutions accepted that they owed a duty of care to Hooper, they argued that they had not caused the plaintiff’s injuries, but rather that the plaintiff had contributed to her injuries by her own independent actions, known as contributory negligence.

‘Contributory negligence’ is a defence that may be used by defendants to argue that the plaintiff’s own actions contributed in whole or in part to their injury.

An example of contributory negligence is where a shopkeeper mops the floor and places a wet floor sign to warn people that there is risk of slipping. However, a customer ignores the sign and walks across the wet floor. In this way the customer has accepted the risk that something may occur. The customer then slips on the wet floor and breaks their leg. By ignoring the sign, the injured party has played a part in, or contributed to, the harm they suffered. Therefore, a court may hold that the injured party either shares responsibility or may even be entirely responsible for the injury they suffered.

A finding of contributory negligence can greatly impact on the application of the right to compensation for the injured party and may alter the amount of compensation they can access significantly.

In the case of Hooper, the second defendant submitted to the court that the plaintiff had failed to take reasonable care of her own safety by:  

• • Failing to apply the handbrake correctly, thereby causing the accident; and  
    ‘Jumping’ in front of the vehicle, as evidenced in the testimony of a witness.  
  • They argued that both of these actions had contributed to her injuries, reducing the responsibility of the second defendant. The plaintiff submitted that there was no contributory negligence.  

Justice O’Meara found that the plaintiff did not voluntarily jump in front of the sweeper but had acted instinctively. Her behaviour was that of any reasonable person who would try to stop someone else from getting hurt. As a result, Justice O’Meara found that Hooper did not contribute to her injuries.  

“I have accepted that the second defendant negligently failed appropriately to train or instruct the plaintiff in respect of the handbrake and to install a handbrake alarm. [151] 
 
In the circumstances, it seems to me that the plaintiff did no more than that which would be done instinctively by any reasonable person in order to avoid the risk of injury or damage to others. [160] 
 
The law should be slow to judge people harshly for instinctive reactions of a selfless and community spirited kind. [161] 

In my view, the present danger was created by the second defendant, and the actions of the plaintiff were not so foolhardy as to amount to a wholly unreasonable disregard for her own safety. Indeed, her actions were instinctive, explicable, selfless and therefore commendable. [163] 
 
The allegations of contributory negligence must be rejected.” [164] 

Damages 

The purpose of damages is to restore the loss experienced by one party as a result of the carelessness of another. However, there is a question as to whether any compensation can adequately restore the loss of physical ability or life.  

Once the elements of negligence had been satisfied, Justice O’Meara began consideration of the remedies to be awarded to Hooper. In considering the damages, His Honour stated  

“The plaintiff suffered very severe and life altering injuries as a consequence of the negligence of the second defendant. Money seems like a wholly imperfect compensation for the effect of injuries of the present kind, but it is all that the law offers.” [185] 
 
As the “negligence of the second defendant was a cause of the plaintiff’s injury, loss and damage” [207] the judge assessed damages for pain and suffering and loss of earning capacity and awarded Hooper a total of $1,635,400 in damages. This included general damages of $550,000, damages for past loss of earnings of $243,900 and a payment for future loss of earnings of $841,500. 

Case Significance

This case clearly establishes that contributory negligence may not be found where the plaintiff acted reasonably in the circumstances, even if their response differed from how others might have reacted. The judge accepted that Hooper’s attempt to assist people by stopping the sweeper from rolling was a reasonable course of action in an emergency situation, regardless of whether a different person might have chosen a different approach.

This case also highlights the responsibility of employers to manage known and foreseeable risks. Citywide Service Solutions was aware of the dangers associated with the misuse of handbrakes on its sweepers but failed to implement adequate safeguards. Although prior investigations had identified the problem and a corrective plan involving handbrake alarms was proposed, the company had not followed through with the installation of the alarms. This failure significantly increased the likelihood of the incident and led to greater potential of liability.

Rule of Law Principles

The burden of proof
In civil cases, the burden of proof lies with the plaintiff who must demonstrate the harm they have suffered. This requirement ensures that claims brought before the court are supported by evidence, preventing false or unsubstantiated actions from proceeding. It also reflects a core principle of criminal justice, namely, that a defendant is presumed innocent of the claims made against them until they are proven by the court.

Unlike criminal proceedings, which require proof beyond a reasonable doubt, civil trials apply a lower standard of proof, known as the balance of probabilities. This is because the matters are typically between individuals, and unlike criminal matters, do not result in loss of liberty in the form of being sent to jail.

For the balance of probabilities, the court must decide which party’s version of event is more likely to be true, or if it is more likely than not to have occurred in the way the plaintiff is presenting to the court.

The law is known and accessible – the protection of rights
When a country is governed by the rule of law, it is ruled by laws that are equally and fairly applied to all people. The civil wrong of negligence is an example of how the common law has developed to provide justice to those who have suffered injury when a person or entity, no matter how rich or powerful, has a duty of care and fails to exercise reasonable care.

The common law is a powerful protection of individual and collective rights and freedoms. Hooper’s individual right to a safe workplace and proper workplace training were protected by the common law. When these rights were breached, the law enabled her to access her rights by providing an avenue for her to bring court proceedings to be compensated for the harm she suffered. As seen in this case, the law is unable to retore her to exactly the same position as before the incident, but it can provide compensation for the damages suffered to ease the burden to some degree experienced by an injured party and provide some justice.

Citywide Service Solutions was also able to access its rights as an entity by presenting its case to court in defence against the claims made by Hooper. Claims of negligence can be very damaging for the reputation of individuals or entities, and both parties being able to provide their version of events to an independent arbiter in order to establish the truth of a claim of negligence is pivotal to upholding the principle of fairness across the justice system.

Independent and impartial judiciary
Civil cases often involve stories of harm that can be very serious and have long term impacts on the injured party. However, to uphold the rule of law and the principles of justice, it is important that both parties can present their version of events to the court, and have it heard by an impartial judge.

Although their may be inequities in access to justice and the cost of legal representation, decisions of the judiciary are based on the law and the evidence before them. They are decided in an open court, enabling transparency and scrutiny of the decisions by the public.

Importantly, where the plaintiff has suffered serious injuries and the defendant is the government, a business or a large corporation, the decision of the judge will be not based on pressure from those in power or those with the most money, but on the consistent application of the law relevant to that particular case. This provides consistency and certainty in decision making and maintains the principle of equality before the law.

Fair and prompt trials
Civil trials can impose significant financial costs on both parties due to the large fees that can be associated with having a matter heard in court. Time delays in the court system also pose challenges to plaintiff’s accessing justice, impacting on their ability to access their rights.

In Hooper’s case, the incident occurred in July 2017, yet damages were not awarded until May 2022. Such costs, delays and pressures can limit access to justice, undermining the effectiveness of civil law and compounding the harm suffered by plaintiffs.

Conclusion

Instances of negligence, such as that which occurred in Hooper’s case, can result in serious harm being experienced by an injured party, and in some cases, that harm can be irreversible. The justice system provides an avenue for parties that have experienced injury or loss as a result of the action of others to seek recourse, or compensation, for their harm. However, it is equally important that parties are protected from false claims of harm.

The principles of the rule of law aim to provide protection and remedies that uphold individual rights by ensuring access to the law for dispute resolution and establishing a framework for fair trials conducted by an open, independent, and impartial judiciary.