On 25 November 2014, the Plaintiff Glenn Garside was riding his motorcycle along the Gregory Highway travelling north from Emerald to Capella when an object fell from a truck (the truck) and struck him, causing personal injuries to him.
The truck did not stop. Its registration number was not taken and, therefore, there was doubt as to the identity of the truck.
The Plaintiff believed that the truck from which the object fell was one operated by JJ Richards & Sons Ltd (JJ Richards), so he sued the three drivers of JJ Richards and QBE, the compulsory third party insurer of JJ Richards’ vehicles. The Plaintiff also sued the Nominal Defendant because if the truck was not found to belong to JJ Richards then it was an unidentified vehicle.
QBE denied liability for the accident on the ground that the truck was not one that belonged to JJ Richards, and could therefore not be identified. The Nominal Defendant denied liability on the ground that the truck in question was owned and operated by JJ Richards.
Section 31 of the Motor Accident Insurance Act 1994 (Qld) provides that:
(1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles—
(d) if the motor vehicle, or insurer under its CTP insurance policy, can not be identified—the Nominal Defendant is the insurer.
(2) In any legal proceedings, it is to be presumed that a motor vehicle can not be identified if it is established by affidavit or oral evidence that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle.
Section 33(1) of the Motor Accident Insurance Act 1994 (Qld) provides that:
The Nominal Defendant’s liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.
The general rule in civil litigation is that the unsuccessful party must pay the costs of the successful party or parties, normally on the relevant court scale. This rule is contained in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) which provides that:
681 General rule about costs
(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
(2) Subrule (1) applies unless these rules provide otherwise.
In Sanderson v Blyth Theatre Company  2 KB 533 it was held that the court has a discretion to order the unsuccessful defendant to pay the costs of the claimant in pursuing the successful defendant and the costs of the successful defendant or defendants. Romer LJ said:
“the Court has full power over the costs of all parties of such an action; and, in my opinion, it has jurisdiction to order the plaintiff to pay the costs of the defendant against whom the action fails, and to add those costs to his own to be paid by the defendant against whom the action has succeeded, and whose conduct has necessitated the action. The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, on the ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as between him and the last-named defendant. Of course, in exercising the jurisdiction, a judge should have regard to the circumstances of the case, and be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of the successful defendant.”
In Bullock v London General Omnibus Company  1 KB 264, the plaintiff had been unable before litigation to assess which of the defendants might be liable. An order was made for the payment of the successful defendants’ costs, but with liberty to the plaintiff to include those costs in the costs of the action recoverable by the plaintiff from the unsuccessful defendant.
In Dominello v Dominello  NSWCA 257, the plaintiff was injured when a vehicle in which she was travelling, and which was driven by her husband, crashed. The vehicle slipped on oil that had been dropped onto the roadway. The plaintiff sued her husband’s insurer alleging negligence against him and also sued the Nominal Defendant, being liable as the insurer of the unidentified vehicle which dropped the oil. The result after the appeal was that the plaintiff was unsuccessful against her husband but successful against the Nominal Defendant. On the question of a Bullock or Sanderson order, the Court of Appeal refused to order the Nominal Defendant to pay the costs of the successful defendant, namely the insurer of the plaintiff’s husband.
After hearing the evidence at trial, Davis J of the Supreme Court found that the truck was not one that belonged to JJ Richards, and it could therefore not be identified. The result was that the claim against the three drivers and QBE was dismissed, but the claim was entirely successful against the Nominal Defendant, who was ordered to pay the sum of $723,761.64 in damages to the Plaintiff inclusive of interest.
After the trial, the issue of parties’ costs of the claim had to be determined. In respect of the costs of the three drivers and QBE, the Plaintiff submitted that the Court should “order otherwise” than that costs follow the event under rule 681 of the Uniform Civil Procedure Rules, and that a Bullock or Sanderson order ought to be made.
Davis J accepted this submission:
“Dominello is a very different case to the present. Here, there is only one cause of action, being negligence against the driver of the truck from which the object fell. The case was one of alternative liability of either the QBE defendants (if the truck was a JJ Richards truck) or the Nominal Defendant (if the truck could not be identified as a JJ Richards truck)…
It was obviously appropriate for Mr Garside to join all the defendants. The Nominal Defendant took a positive stance that the vehicle was one operated by JJ Richards. It could have conceded that the vehicle was unidentified.
In pleading positively as against Mr Garside that the vehicle was one driven by one of Mr Rohan, Mr Miles or Mr Robertson and in advancing that case and the wider case that the truck may have been some other JJ Richards truck, the Nominal Defendant clearly engaged with the QBE defendants on the critical issue between them. Unlike Dominello, this was a case of alternative liability. The Nominal Defendant sought to avoid liability by attempting to identify the truck as one insured by QBE. That is the conduct which satisfies the second requirement for a Bullock or Sanderson order.”
It was therefore ordered that:
This case shows that in cases where a plaintiff sues multiple defendants and is not successful against all of them, the court will consider the individual facts of the case in determining whether the successful defendants’ costs should be paid by the plaintiff or the unsuccessful defendant(s). The reasonableness of the plaintiff’s decision to sue the successful defendant(s) in all the circumstances will be the central issue in the exercise of the costs discretion in such cases. In this case, because the plaintiff’s claim against QBE and the Nominal Defendant was a case of alternative liability, and because the Nominal Defendant defended the claim on the basis that one of the drivers of JJ Richards insured by QBE was liable, the plaintiff’s decision to sue the three drivers and QBE was found to be plainly reasonable, even though it was ultimately unsuccessful.
On the other hand, the decision of the Nominal Defendant to defend the claim on the basis that the truck belonged to JJ Richards helped result in the costs of QBE being ordered against it. With the benefit of hindsight, such a decision turned out to be a mistake, although prior to trial it may have been unclear that the Court would find that the truck could not be identified. This case shows that the decision of a defendant to “point the finger” at other defendants in the proceeding can come at a cost.
The District Court’s decision to dismiss a teacher’s claim for slipping during a fruit break shows that a lack of previous incidents can be decisive on the question of liability.
Debbie Deans was employed by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape during a ‘fruit break’ during the course of her employment, fracturing her left patella.
She sued her employer, claiming that it was negligent for failing to:
(a) take reasonable care for her safety;
(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;
(c) supervise her so as to ensure she carried out her employment safely;
(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;
(e) provide a safe work environment within which her was required to perform her duties;
(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;
(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;
(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.”
305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
Deans’ lawyers argued the general notoriety of young children dropping things and leaving them on the floor meant that this risk was foreseeable as defined in section 305B(1)(a).
Farr SC DCJ rejected this argument, noting there was no evidence of any previous incidents of people slipping on things dropped by children at Riverside Christian College, or at any other school. Nor was there any evidence that Riverside Christian College knew of this particular risk of injury. Therefore, the risk was held not to be foreseeable.
The argument that Riverside Christian College had conceded foreseeability by also pleading a defence of contributory negligence was also rejected because it ignored the statutory definition of “obvious risk” contained in section 305I of the Workers’ Compensation and Rehabilitation Act, and was contrary to the High Court’s decision in Thompson v Woolworths (Queensland) Pty Ltd  HCA 19.
A further issue which Farr SC DCJ considered was whether the risk was not insignificant within the meaning of s305(1)(b) of the Workers’ Compensation and Rehabilitation Act. Farr SC DCJ noted that the fruit break had been taking place for five years without any previous incident, and the relevant area would have been traversed by thousands if not tens of thousands of people at and around the fruit breaks. For these reasons, Farr SC DCJ held that the risk of injury arising from items being dropped on fruit breaks was insignificant.
As a result of these findings, Riverside Christian College had not breached its duty of care, and therefore the claim for negligence had to fail.
This case demonstrates that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are foreseeable or significant within the meaning of the law.
This decision is good news for schools, who can now have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued as long as such activities are conducted as safely as practicable.