Industrial hose causes eye injury

Keywords

Apportionment of Liability – Contractual Indemnity – Section 6 (c) of the Law Reform Act 1995 (Qld) – Section 236B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Facts

The plaintiff was employed by Vatsonic Communications Pty Ltd (“Vatsonic”) as a vacuum truck operator.  Vatsonic had contracted with the Townsville City Council (“TCC”) to provide services which would effectively clean concrete pits which form part of the TCC’s storm and wastewater system.

The plaintiff and the TCC were left to determine their own system of work, without any SWMS in place by Vatsonic. The task of cleaning gross pollutant traps was completed on between 40 to 50 occasions without issue.

Whilst there was a factual dispute, the Court accepted the plaintiff’s evidence that on 28 August 2017, employees of the TCC did not leave the hose laid flat as the plaintiff was disconnecting the hose from the outlet valve and reconnecting it to the inlet valve. Instead, the other end of the hose was lifted up by the crane and was dangling three and a half to four metres in the air. This caused energy to release from the hose when the plaintiff attempted to “wiggle” the hose off the outlet valve. The hose spun and released from the plaintiff’s grip and struck him on the bridge of his nose and in the eye, resulting in loss of sight.

The plaintiff pursued claims for personal injuries against Vatsonic and the TCC. The TCC sought indemnity from Vatsonic based on an agreement entered into between them.

Decision

Coker DCJ, delivered the decision on 5 April 2024. Liability was apportioned at 70 per cent to Vatsonic and 30 per cent to the TCC. Vatsonic however was taken to have breached its agreement with TCC and therefore was required to indemnify them. Damages were therefore only awarded against Vatsonic.

Advertisement

Ratio

WorkCover on the part of Vatsonic attempted to rely on Section 6 (c) of the Law Reform Act 1995 (Qld) (“LRA”) and Section 236B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in that any argument for indemnity is void to the extent that it prevents WorkCover from pursing a contribution claim, because to find otherwise would render section 6(c) of the LRA ineffective.

The Court identified the TCC was not seeking to rely upon the indemnity to defeat a claim by WorkCover in contribution brought against them but rather, the plaintiff claimed directly against the TCC and they sought to rely on the terms of the agreement with Vatsonic. Section 236B was taken not to be applicable.

The wording of the agreement was such that Vatsonic was required to:

• perform works in a diligent manner and with all necessary care and skill; and
• supply any required additional personnel (including workers of the TCC) with the expectation that they would facilitate the safe, effective operation of the equipment.

Under the agreement, Vatsonic also acknowledged that the operators of the equipment, including workers of the TCC, were deemed to be the employees of Vatsonic, and not of the TCC.

It was concluded Vatsonic failed to meet its contractual obligations and hence were required to indemnify the TCC.