The Supreme Court of Queensland recently awarded $2.5M in damages to a tow truck driver who suffered severe crush injuries. A Mitsubishi bus rolled on him while he was underneath it to try and attach a towing device. Pleasingly, in addition to economic loss damages, the Court award included fairly generous allowances for pain and suffering as well as domestic assistance needs.
The Facts
The Plaintiff (Mr Anderson) worked as a heavy vehicle tow truck driver. In August 2019, he was called to a scene on the Burnett Highway in Queensland, near Ban Ban Springs. A Mitsubishi bus had broken down and needed to be towed.
To be able to tow the bus, Mr Anderson needed to get under it and attach a towing device. His understanding was that the driver of the bus had applied the hand brake. Mr Anderson then positioned cube shaped wooden blocks under each of the front wheels. He then moved under the bus to insert two forks into a T-bar. As he did so, the bus all of a sudden rolled forwards. That part of the underside which housed the spare wheel came to rest on Mr Anderson’s chest – causing severe injuries.
Mr Anderson claimed damages from the driver of the truck (and his CTP insurer). This was because Mr Anderson alleged that, contrary to what the driver said, he had not applied the hand brake. In summary, Mr Anderson claimed that the driver of the bus was negligent, and the driver’s CTP insurer had to pay for this negligence.
Mr Anderson also claimed damages from his employer (the tow truck company). Against the employer Mr Anderson’s allegation was that the employer’s work process was unsafe because it didn’t call for placing chocks under each of the wheels.
Why claim damages from both the driver and the employer?
There is strategic benefit in claiming damages against both the driver (CTP insurer) and the employer. Although you can’t just “double up”, you can still get a much higher damages award. That’s because in a combined case the CTP insurer is liable to pay for certain damages which the employer alone wouldn’t otherwise have to pay. Specifically, the CTP insurer has to pay gratuitous care, whereas the employer doesn’t. In this case, the gratuitous care component was $1,057,565!
Questions for the court
The court had to decide a number of questions:
- Had the handbrake been applied?
- Was this even a CTP claim? After all, at the time of the incident, the bus was broken down and no one was driving it. (This is crucial: if it’s not a CTP claim, even if the driver is negligent, the CTP insurer doesn’t have to pay – meaning a successful claim against the driver would be a Pyrrhic victory as there would be no one with deep enough pockets to pay the damages award)
- Was the towing company’s work process negligent?
Handbrake released
The Court considered all the evidence, including witness statements, internal camera footage, as well as police records. It found that the driver of the Mitsubishi had in fact applied the handbrake, BUT THEN he had released it before Mr Anderson got under the bus – without telling Mr Anderson. On this basis, the driver was found negligent.
It’s a CTP claim
The Court held that this was indeed a CTP claim. In Queensland, the Motor Accident Insurance Act says that a claim is a CTP claim if personal injury is the result of a motor vehicle running out of control. The CTP insurer submitted that when the bus ran out of control this was not “in its capacity or function as a motor vehicle“. Why? Because when it rolled on the plaintiff, it had broken down and was being prepared for towing. The Court didn’t accept the CTP insurer’s argument. The judge held that the injuries resulted from the bus running out of control in its capacity as a motor vehicle. Although the bus could not move under its own motive power, it was still considered a motor vehicle, especially given that it was going to be towed behind the tow truck – that is, it was going to be traveling on the road on its wheels.
Because the driver had negligently released the handbrake and the claim was considered a CTP claim, Mr Anderson was successful against the CTP insurer.
Tow truck company admits liability
The employer (the towing company) admitted that it breached its duty of care because its work system did not require Mr Anderson to apply the handbrake and also chock the wheels of the vehicle to be towed. Mr Anderson was successful against the employer also.
Apportionment of liability
As between the defendants, the judge held they were each 50% liable. (But because the CTP insurer has to pay gratuitous care and certain other damages that the employer doesn’t pay, in reality the CTP insurer ended up paying about 78% of the total award).
Damages
In light of the plaintiff’s severe injuries (including a serious chest injury coupled with psychiatric injury) the court awarded significant damages for pain and suffering, as well as economic loss. Pleasingly, the court also made a fairly significant award for past and future gratuitous care and assistance. Although the plaintiff didn’t have detailed evidence about the assistance which he received from his wife following the incident, the Court accepted that he did require and would continue to require assistance with a range of tasks, including meal preparation, yard maintenance as well as other domestic activities. The plaintiff also relied on an expert report from an Occupational Therapist which provided estimates of the plaintiff’s domestic assistance needs.
You can read the entire case of Anderson -v- Claytons Towing & Ors here
