Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264

Michael Creedon  |  Allie Flack  |  Oliver Waddingham

Key takeouts

Head contractors may be liable for failing to take reasonable care to avoid risks, including by failing to enforce appropriate safety procedures, even where subcontractors and their employees contribute to the harm or damage caused. 

Facts

This decision is an appeal of the District Court. Mr Meechan was employed by CD Kerb and Channel (CD), a subcontractor of Savco Earthmoving Pty Ltd (Savco).

Savco was the principal contractor on site. CD’s works on site included using a specialised machine, which was usually moved by a crane attached to a truck, owned by CD. In this instance, the truck was not able to move CD’s machine. Mr Harris (an employee of CD) was permitted by an employee of Savco to use an excavator owned by Savco to move the machine. Mr Harris had no training and limited experience using the particular type of excavator, and the Savco employee did not query Harris’ qualifications. 

The machine was lifted on to the tray of a truck using the excavator, a D-shackle and some chains. Meechan was standing on the tray of the truck while Harris operated the excavator. Once the machine was lowered onto the truck, Meechan released the D-shackle and chain, and under-armed the D-shackle with little to no notice toward Harris, who was sitting in the cab of the excavator. In attempting to catch the shackle, Harris bumped a lever which operated the boom of the excavator. The boom of the excavator struck Meechan and knocked him from the truck.

Meechan claimed in the District Court that Savco was negligent, by allowing the excavator to be operated by someone who was not an appropriately experienced and licensed operator (DC Proceeding). The trial judge in the DC Proceeding dismissed Meechan’s claim, finding that although Savco was negligent, the accident was caused by Meechan dangerously throwing the D-shackle toward Harris. Mr Meechan appealed the decision in the DC Proceeding. By a Notice of Contention, Savco challenged the finding in the DC Proceeding that it was negligent.

Decision

The Court of Appeal allowed Meechan’s appeal, finding that Savco failed to use reasonable care to avoid the unnecessary risk of injury by allowing the excavator to be operated by someone not sufficiently experienced and trained to do so. The court concluded that Savco’s negligence created or contributed to a risk of an injury to Meechan. The Court of Appeal assessed damages as $129,677, reduced to $103,741 after being reduced by 20% due to Meechan’s contributory negligence.

Negligence

Savco conceded that, as the principal contractor on site, it owed a duty of care to Meechan. However, it argued that it could not have been in breach of that duty because Harris was competent to operate the excavator and had experience doing so.  Further, there was no specific licence requirement applicable to the excavator in question. The court rejected Savco’s argument, finding that it failed to use reasonable care to avoid an unnecessary risk of injury, caused by someone not sufficiently experienced and trained operating the excavator.

Causation

In considering the issue of causation, the Court of Appeal highlighted that the Judge in the DC Proceeding failed to consider evidence which showed that a competent operator of the excavator would ensure that there was no possibility of moving the boom whilst a person is in the vicinity of it, by engaging a particular safety device ie a hydraulic lever at the side of the operator’s seat. Nevertheless, the court considered that the appropriate question is not whether the accident could have happened with an experienced and competent operator. Rather, the question is whether Savco’s negligence created or substantially increased the risk that by unsafe operation of the excavator, it might cause injury. The court concluded that Savco’s negligence did create or substantially increase the risk, overturning the finding of the Judge in the DC Proceedings.

Contributory negligence & calculation of damages

The Court of Appeal agreed that Meechan had been negligent, contributed to his own injury and that damages awarded to him should be reduced. However, while the Judge in the DC Proceeding assessed Meechan’s contributory negligence at 80%, the Court of Appeal overruled this finding, reducing Meechan’s damages by only 20%. Therefore, on re-assessment, Meechan was awarded damages of $103,741 (being 80% of the total assessment of $129,677).  This compared to the assessment of $39,044 (being 20% of the total assessment of $129,677) in the DC Proceedings.