TAKE A SEAT – EMPLOYER LIABLE FOR DRIVER’S BUMPY RIDE
August 13, 2020
Ciolpan v Swan Transit Services (South) Pty Ltd  WADC 95
The plaintiff was working as a bus driver for the defendant when he sustained an injury to his cervical spine. He claimed that he drove a bus over an uneven section of road near the bus station, causing his seat to violently bounce up and down, and resulting in his injury.
The plaintiff subsequently brought a claim under the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act).
The plaintiff claimed that the defendant was negligent in a number of respects, including:
- In relation to the adjustment of the bus seat’s suspension
- In failing to ensure that the relevant section of road was repaired by the appropriate authority
- In failing to warn the plaintiff of the risk of injury from driving on that section of road
- In failing to carry out an assessment of the design of the seat.
The bus seat was adjustable in respect of its height and the suspension setting, allowing drivers to sit comfortably on long journeys. The plaintiff’s evidence was that he had the seat height set to about 5cm above its lowest position, with the suspension on the softest setting. The suspension setting of the bus seat was a particular issue in the claim and the subject of expert evidence.
The defendant accepted that the plaintiff had sustained an injury and that he suffered a greater than 25% whole person impairment (to be entitled to an award of damages against the defendant as his employer). However, the defendant otherwise disputed negligence, the cause and extent of the injury, and quantum.
Significantly, expert evidence was adduced as to the likely cause of the injury, with it accepted by both parties that it would need to have been during the downward movement. This was because the expert evidence indicated the setting of the seat suspension would not affect the speed at which the seat would travel upwards.
Inter alia the Court was required to consider:
- Whether the risk of injury was reasonably foreseeable
- If so, whether the defendant took reasonable steps to avoid the risk of injury
- Whether any failure on the part of the defendant caused the injury.
It appears the defendant adopted the position that foreseeability of injury required regard to the risk posed by a combination of the condition of the road and the adjustment of the seat suspension. The condition of the road at the time of the plaintiff’s injury (and, indeed, in the lead up to the injury) was the subject of discussion.
The defendant also relied on the fact that no other drivers had been injured on the section of road in question (i.e. that the risk of injury was very small).
Gillan DCJ, having the benefit of witness evidence and CCTV footage from the bus, concluded that the uneven road surface had the capacity to cause significant jolting to the bus and to the plaintiff. Her Honour accepted that, on the balance of probabilities, the injury occurred as the seat travelled down and abruptly stopped.
Her Honour determined that in this case the test of foreseeability was properly formulated as:
Was it reasonably foreseeable that a bus driver was at risk of injury if the driver was not warned that they might be injured by adjusting their seat to too soft a suspension setting?
Importantly, this question was to be posed:
…without reference to the place where the accident occurred, because for risk of injury to be foreseeable it is not necessary for the specific event or the specific injury to have been foreseen.
Her Honour went on to conclude that the risk was foreseeable and that the defendant had failed to warn the plaintiff against the risk, observing that:
…the risk of injury occurring was not great but the steps to ameliorate that risk were so easily able to be achieved that a reasonable employer should have taken those steps.
The next issue in dispute was causation, and Her Honour noted that the experts accepted it was unlikely the seat would have come to an abrupt halt on a firmer suspension setting. The failure to warn the plaintiff had therefore materially contributed to the risk of injury.
Ultimately, damages were awarded to the plaintiff in the sum of $1,073,255, less past weekly payments made under the Act (totalling $231,575.34).
Implications of decision
This decision highlights the obligations employers have to warn employees of foreseeable risks – the mere fact that a risk is unlikely to materialise will not necessarily relieve employers of the burden of taking precautions.
Of particular note, in this case there was a factual dispute as to what the defendant’s induction process included with regard to the adjustment of the seat and any warnings surrounding this. Employers should regularly undertake reviews of their training and induction processes to ensure that injury warnings are provided where appropriate (and that such warnings are documented).
It remains to be seen whether the defendant will appeal the decision.
Further information / assistance regarding the issues raised in this article is available from the authors, Daniel Costanzo – Partner and Daniel Coster – Senior Associate, or your usual contact at Moray & Agnew.
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