Felon Tusk is the CEO of Limber Timber Pty Ltd, a company engaged in the supply to wholesalers and retailers of hardwood and softwood timber. Jack is a storeman and packer employed full-time by the company. Jack has a trucking licence, allowing the company to also use him as a truck driver to freight product to the company’s customers around Australia.
On Friday afternoon, after a long lunch at the local tavern The Drunken Duck, Jack reverses one of the company’s 10-wheel flat deck trucks into the timber loading bay in the Despatch section of sawmill. It is a blisteringly cold and wet winter’s day outside, and Jack closes the large roller door to the Despatch area to keep out the wind and rain. Inadvertently he leaves the engine running, and jumps out to help the other storemen and packers load the heavy timber onto the deck of the truck.
The company has erected signs instructing truck drivers to make sure they turn off their engines while inside the Despatch Bay area, but someone has loaded boxes high against the wall so that these signs are obscured from the vision of truck drivers reversing into the loading bay area of the factory. All employees of the company have had mandatory and comprehensive workplace health and safety training and have been made aware of the dangers of carbon monoxide poisoning in the loading Bay.
The concentration of carbon monoxide fumes builds up in the confined space, and all the storemen and packers lose consciousness. Their foreman, Ulysses Odysseus, is out the back of the factory helping the secretaries to operate the photocopier. Because of cost cutting, there are no other foremen or supervisors to replace him in the loading Bay area. When Ulysses returns to the Loading Bay area, he quickly appraises the situation and calls the Ambulance, which rushes the workers to the nearest hospital.
After extensive diagnostic testing, Felon Tusk and Ulysses are advised that the news is not good. One of the storemen and packers suffers brain damage, and all (including Jack) are left with heart irregularities, muscle weakness, and long-term respiratory problems, meaning that they can no longer work ever again as storemen and packers. Jack no longer wants to drive trucks – he is seeing doctors for Post-Traumatic Stress Disorder (PTSD) and none of the others is qualified to work as anything else in the company or elsewhere.
Advise Felon Tusk whether and to what extent the company, Ulysses and/or Jack are likely to be liable in negligence, why, and whether each would have any defences.