Kelleher v J & A Accessories Pty Ltd  QSC 227
Brisbane Supreme Court
4 October 2018
The Plaintiff was a 45 year old sales representative / delivery driver who alleged he sustained lower back and psychiatric injuries as a result of:
- Repetitively lifting vehicle batteries weighing over 20kg between 2012 and 2013; and
- Exiting from the cabin of an Isuzu NPR 300 truck on 21 August 2013.
The Plaintiff suffered from a significant pre-existing L4/5 disc protrusion diagnosed in 2011, around four months prior to commencing employment with the employer.
The main issues in dispute were:
- Whether the Plaintiff sustained a back injury from his repetitive lifting duties or solely as a result of exiting the truck cab;
- The method in which the Plaintiff exited the truck i.e. whether he stepped or jumped out and how he landed on the ground;
- Whether it was foreseeable that the Plaintiff could have suffered injury from exiting the cab;
- Whether the Plaintiff was adequately trained to exit the truck cab, and if such training would have changed the method the Plaintiff could have adopted to exit the truck cab;
- Whether the provision of any additional equipment or assistance would have prevented the Plaintiff from suffering a back injury from repetitively lifting vehicle batteries.
- The cause of the Plaintiff's right sided symptom after he had undergone spinal surgery to treat his injury;
- If the Plaintiff simply suffered a temporary exacerbation of his significant pre-existing condition as a result of the work events or a more serious and permanent aggravation.
The Plaintiff exited the truck by swinging out of the cab front first and jumping out with both feet before landing simultaneously on the ground.
The risk of injury associated with lifting vehicle batteries and exiting the truck was foreseeable.
The employer breached its duty by failing to provide manual handling training of the batteries and training and instruction for exiting the truck.
The evidence of Intersafe was accepted regarding both foreseeability and breach.
The Plaintiff established causation for exiting the truck. He would have followed the employer's training and instruction by exiting the truck in reverse whilst using the hand hold and foot hold had that been provided to him.
However, the Plaintiff failed to prove causation for manual handling training of the batteries. He did not lead any evidence to prove that he would not have been in a similar position had the employer undertook adequate precautions.
The evidence of Dr Campbell and Dr McEntee was preferred over Dr Labrom, and in particular that the lumbar discectomy to treat the initial back injury had caused the Plaintiff to develop right sided back and leg symptoms (as opposed to his pre-existing condition being the cause).
Significant discounts were applied to economic loss for the Plaintiff's pre-existing back symptoms.
- $126,000 for Past Economic Loss - $800 net per week from the date of exiting the truck discounted by 70% for pre-existing back condition and adverse employment market with a further reduction of 10% for contingencies;
- $181,914 for Future Economic Loss - $800 net per week for 19 years discounted by 60% for his pre-existing back condition and the challenging labour market with a further discount of 12% for contingencies.
Employers have a duty to train and instruct workers to exit truck cabs which are 50cm from the ground – this case can be distinguished from Mt Isa Mines v Williams where the Plaintiff likened getting out of his work vehicle to exiting his Toyota Landcruiser.
The Court has reinforced the position that the Plaintiff must present evidence to establish a link between breach and causation in order to establish liability (see similar cases of Schonell v LaSpina, Trabucco; Lusk v Sapwell).
The outcome of liability and quantum matters are significantly dependent on how lay and expert witnesses give evidence at trial.