Durkin v Ambrose Haulage Pty Ltd  QDC 97
Judge Jarro DCJ
29 May 2020
Over a period of time between May 2017 and March 2018, the injured worker alleged that he suffered bilateral shoulder injuries which he attributed to driving long distance fuel trucks with deteriorated suspension/shock absorbers.
The worker had complained to the employer that his shoulders were sore because of being bounced around in the driver's seat driving on rough roads. The employer could find no defect in the suspension but ultimately made the decision to replace the suspension on the truck in March 2018.
The worker commenced a claim against his employer seeking damages of $435,504.85 as he was no longer able to continue as a truck driver due to his shoulder symptoms.
Liability was in dispute.
The worker was employed to drive long haul trips carrying fuel over long distances between Goondiwindi and Brisbane. The worker was an experienced truck driver and had been driving trucks for decades prior to commencing work with the employer.
The worker alleged that he was required to drive a truck with shock absorbers and suspension that were in a bad state of repair thereby exposing him to a risk of injury. The worker alleged that the employer was put on notice of his injury and, having knowledge of the risk of injury to the worker, failed to take adequate precautions in a timely manner in response to the complaints by the worker.
The employer was on notice of the worker's complaints of arm and shoulder pain and his belief that it was linked to the truck's springs/suspension from October 2017. The employer denied that there was any defect in the suspension that would have required any action to be taken and/or that could have caused the worker's injury. The suspension was ultimately replaced in March 2018 due to the worker's complaints.
No expert evidence was led on behalf of the injured worker as to the forces involved in driving the truck and the forces that would have been necessary to expose him to a risk of shoulder injury. The Court was guided only by the worker's belief that the suspension had deteriorated and caused him to be bounced around in the driver's seat ultimately producing pain in his arms and shoulders.
The orthopaedic experts agreed that the worker suffered from a progressive degenerative condition affecting both shoulders as well as a causally independent degenerative neck condition. Evidence was led by Dr Blenkin on behalf of the employer as to the known occupational risk factors for shoulder injuries and it was identified that the work activities described by the worker did not involve those risk factors. Dr Robinson conceded that he was not aware of the forces applied to the worker's shoulder in his occupational activities and he had relied upon the worker's subjective description of forces involved.
On the first day of trial and following an opposed application, the worker was granted leave to amend the pleadings to increase the alleged period of complaints which were alleged to have commenced from May 2017 rather than October 2017 as was originally pleaded.
The Court did not find the worker's evidence persuasive and was unwilling to rely solely upon his evidence unless corroborated by independent evidence.
In relation to liability, the Court found that there was no independent evidence to support a finding that the truck's suspension and shock absorbers were deteriorated or in a state of disrepair. The employer drove the truck after the complaints and found the truck to be in a roadworthy state. Further, the employer approached other drivers who did not have any issues. The employer took steps to have the suspension inspected by a mechanic who did so during each regular service on a number of occasions between October 2017 and March 2018. The truck was serviced more frequently than that recommended by the manufacturer. When the suspension was ultimately replaced, the mechanic did not observe any material difference between the old and new system. The evidence of the mechanic was that there was no need to have replaced the suspension in March 2018 and this evidence was accepted by the Court.
The Court concluded that the truck was properly maintained and was in a roadworthy condition. The employer did not need to replace the suspension and that it was not reasonable nor necessary for the employer to have taken those steps. Short of dismissing the worker or preventing him from driving at all, there was nothing the employer ought reasonably to have done in the circumstances.
As the employer was on notice, the injury was foreseeable and not insignificant. However, the court found the employer had not breach its duty of care by causing the worker to drive the truck in the circumstances alleged.
Additionally, the Court was not satisfied that the evidence established that any breach of duty (if there was any) caused any injury to the worker. There was insufficient independent evidence demonstrating a link between the worker's occupational activities and the development of a shoulder condition.
Judgement was found in favour of the employer.
As assessment of damages was undertaken.
The worker was 59 years of age and was not able to return to truck driving. The worker suffered an injury in the nature of an aggravation of pre-existing degeneration in the shoulders. It was submitted on behalf of the employer that the injuries were minor and would have been overwhelmed by the significant pre-existing degeneration affecting the shoulders and by the independent neck condition. The court agreed.
The assessment of economic loss was limited to a period of 12 months following cessation of work in March 2018. No award was made for future economic loss or future specials.
Damages were assessed at $46,476.25 clear of the refund.
Discussion / Implications
This is a case highlighting that even though an employer is on notice of a risk of injury, the onus is on the worker to prove that the employer has breached a duty of care and that the breach of duty is the material cause of the injury suffered by the worker