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  • Unreported Judgment

Griffin v Burleigh Marr Distributions Pty Ltd

 

[2019] QSC 321

SUPREME COURT OF QUEENSLAND

CITATION:

Griffin v Burleigh Marr Distributions Pty Ltd & Anor [2019] QSC 321

PARTIES:

JAMES ANTHONY GRIFFIN

(plaintiff)

v

BURLEIGH MARR DISTRIBUTIONS PTY LTD

ACN 009 966 465

(defendant)

NORTHERN AUTOMOTIVE SERVICE AND SUPPORT

ABN 69 562 289

(third party)

FILE NO/S:

SC No 518 of 2016

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

18 December 2019

DELIVERED AT:

Townsville

HEARING DATE:

8, 9 and 10 April 2019

JUDGE:

North J

ORDER:

  1. Judgment for the plaintiff against the defendant for $554,352.52.
  2. Dismiss the third party proceedings.
  3. With respect to costs generally including those between the plaintiff and the defendant and those between the defendant and the third party;
    1. (a)
      In the absence of agreement or consent I direct that they be determined on the papers; and
    2. (b)
      Direct that each party submit a written outline no longer than 2 pages in support of their contention within 21 days.

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the plaintiff was employed by the defendant as a truck driver – where the plaintiff claims damages for injury and consequential loss and harm suffered because of what the plaintiff claims was a defective seat in the truck – where the third party repaired the defective seat after the plaintiff complained to his employer but notwithstanding the plaintiff later sustained injury – whether employer failure to provide safe and suitable work or employer failure to replace defective seat with seat which was safe and suitable – whether employer breach of the duty of care in tort and breach of the implied term of the contract of employment

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305C, s 305D, s 305E

CASES:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420, cited

Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301, cited

Helicopter Sales (Australia) Pty Ltd v Rotor-work Pty Ltd & Anor (1974) 132 CLR 1, cited

Kondis v State Transport Authority (1984) 154 CLR 672, cited

McLean v Tedman (1984) 155 CLR 306, cited

Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121, cited

TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1, cited

Urch v Menneguzzo & Ors [2004] QSC 200, cited

COUNSEL:

T Nielsen for the plaintiff

T Moon for the defendant

K Howe for the third party

SOLICITORS:

Miller Sockhill Lawyers for the plaintiff

Hall & Willcox for the defendant

HBM Lawyers for the third party

NORTH J

Introduction

  1. [1]
    The plaintiff was employed by the defendant as a truck driver. He claims damages for a low back injury and consequential loss and harm suffered because of, what he claims was, a defective seat in the truck. The third party repaired this seat after the plaintiff complained to his employer about the seat but notwithstanding the plaintiff later sustained his injury. The defendant claims indemnity or contribution from the third party.

The evidence

  1. [2]
    The plaintiff commenced working for the defendant on or about 20th August 2013.[1] He drove a “Fuso” truck[2] registration 203MAA. His duties required him to drive approximately 3,000 kilometres a week between Townsville and Rockhampton. One journey would be taken between Tuesday and Wednesday and the second between Friday and the Saturday. His routine involved making deliveries to Airlie Beach, Mackay and Rockhampton. He would over night at Rockhampton and return to Townsville the following day. The journey from Townsville to Rockhampton was about 711 kilometres as was the return journey.[3]
  2. [3]
    When he started driving the truck in August 2013 the odometer showed it had travelled about 559,000 kilometres.[4]
  3. [4]
    From the beginning he described the journey as a rough ride. The seat was uncomfortable, his recollection was that one side of the seat felt as if it had collapsed and the truck was uncomfortable to drive.[5] He described that the seat felt like the base or the cushioning had collapsed on one side.[6]
  4. [5]
    The plaintiff said that he complained to his supervisor, Mr Neil Sayers, on about a weekly basis between 20 August and mid October 2013 and again from late October through to March 2014.[7] 
  5. [6]
    The plaintiff said that the truck would often bottom out on the highway causing pain.[8] To make himself more comfortable he was forced to lean on the centre console with his left hand[9] but nevertheless the truck bottomed out constantly.[10]
  6. [7]
    The plaintiff noticed these problems throughout the time he drove the truck[11] and at first he suffered discomfort in his hip and his back would cramp up[12] after the incident that I will mention the plaintiff said that he suffered symptoms that I’ve described including pain in his backside and down his legs to his knee.
  7. [8]
    Some of the plaintiff’s complaints to Mr Sayers were recorded in a diary.[13]
  8. [9]
    The plaintiff gave evidence that in October 2013 the truck underwent some repairs to the seat carried out by the third party.[14] Earlier, on or about 14 August 2013 the base of the seat had been replaced. The repairs included the replacement of a shock absorber on the 17 October 2013 and the replacement of a seat stopper[15] on the 28 October 2013. Nevertheless the plaintiff complained that after these repairs had been concluded on the 28 October the truck continued to bottom out and that although the tilt had been fixed somewhat the seat was still at some angle and it was still uncomfortable to drive.[16]
  9. [10]
    The plaintiff gave evidence that he complained to Sayers but that Mr Sayers responded that the seat was fixed.[17]
  10. [11]
    The plaintiff gave evidence that on 14 March 2014 he commenced a routine run from Townsville to Rockhampton.[18] He said that he left Townsville at a normal time between 2 and 3 am and as he recalls it the seat was bottoming out at spots on the highway that were familiar.[19] The plaintiff said that he approached a bridge about 20 kilometres north of Ayr near one of the Buratta creeks, that he reduced the speed of the truck[20] but that the truck and seat bottomed out where the highway “ramps up a bit” on the approach to a flat bridge.[21] He said that he came down in the seat a bit harder than normal and that he began to experience pain through his back radiating down his “butt” like pins and needles down his leg.[22]  The plaintiff said that he rang Mr Sayers to report his pain from Airlie Beach at around 6 or 7 am and he was told to continue with the delivery. The plaintiff said that he completed the delivery and returned the next day in pain.
  11. [12]
    Under cross examination by the counsel for the defendant the plaintiff acknowledged that there were occasions when he reported or recorded pain in his hip in his diary but had not included that complaint in a report or checklist to his employer. However the plaintiff said that he did make verbal complaints to Mr Sayers about the seat after the repairs which were completed on 28 October 2013.[23]
  12. [13]
    Mr Alexander Baldock was called in the plaintiff’s case. He was at relevant time an employee of the defendant.[24] He gave evidence of an occasion when he witnessed a conversation between the plaintiff and Mr Neil Sayers where the plaintiff said words or words to the effect “we need to get something done about the seat before I end up hurting myself.” According to Mr Baldock[25] Mr Sayers responded to the effect “what do you want me to do about it?” and that he laughed. According to Mr Baldock this conversation occurred one to two months before the plaintiff hurt his back. In cross examination Mr Baldock admitted that he could not recall the precise date[26] but that it was “some time before the plaintiff hurt his back”.
  13. [14]
    Benjamin Faulkner gave evidence in the plaintiff’s case. He is a truck driver.[27] His evidence was that he drove the subject truck at least six times. He described the seat as being “buggered”, it was uncomfortable and a harsh ride.[28] He said that he complained to Mr Sayers a couple of times “around about” 2014 after having driven the truck on the Bruce Highway.
  14. [15]
    Jonathon Jopling was called on the plaintiff’s case.[29] He is a truck driver and drove the subject truck late in 2013 on a return journey from Townsville to Charters Towers. He described the seat as “dodgy” and he ended up with a sore back that day.[30] Mr Jopling said that the ride was rough every time he hit a bump and that the back rest was twisted.
  15. [16]
    Mr Jopling said that when he drove the truck he spoke to Neil (the manager) and told him that the seat was horrible[31] to which the manager replied “yeah I know”.[32] Mr Jopling said that he drove the truck a second time on the 5th of December 2013 and that he ended up with a sore back on that occasion.[33]
  16. [17]
    Mr Neil Sayers gave evidence that he was the branch manager for the defendant managing the depot in Townsville.[34] The plaintiff was employed as a truck driver to do the run to Rockhampton and the third party did the servicing and repairs of the truck. Mr Sayers said that the truck was well maintained and regularly serviced by the third party. He said that the plaintiff did complain of the ride of the seat and the suspension of the vehicle and that he was suffering from back pain or sciatic pain. Mr Sayers said that in response to those complaints he rang the third party to organise repairs and asked them to look at the seat. According to Mr Sayers Mr Peter Fry responded quoting the costs of repairs to the seat at about $2,000 and a replacement seat at $5,000.[35] Mr Sayers said that he authorised repairs to the seat and that he recalled Mr Fry saying that they could try and repair it.[36] Mr Sayers said that the repairs were finished on the 28th October 2013 and that he recalled no further complaints by the plaintiff about the seat or the truck until the incident of 14 March 2014. Mr Sayers said that he made no complaint to Mr Fry or to anyone at the third party after 28 October 2013 to the effect that there was any problem with the seat.[37]
  17. [18]
    Mr Peter Fry gave evidence that he was a qualified and experienced mechanic and one of the two proprietors or partners of the third party.[38] Mr Fry said that repairs to the seat were conducted 14 August 2013 and further repairs on 17 and 28 October 2013 involving the replacement of the driver’s seat and the replacement of shock absorbers and bump stops. Mr Fry said that he gave Mr Sayers the option of replacing the entire seat if there were continuing complaints after the repairs were done.[39] Mr Fry said that he recommended one option was to replace the seat with a heavier seat.[40] Mr Fry said that there was no feedback or complaints from Mr Sayers after the repairs were done.[41]
  18. [19]
    In evidence Mr Fry described Fuso trucks as having “cheap shit” seats.[42] He described the trucks as “lower level”.[43] When asked about the problem of trucks and seats bottoming out Mr Fry said it was more common on rougher western roads and the complaint was not as frequent involving trucks driving on the Pacific Highway[44] and that the problem was more acute the faster the truck travelled.[45] Mr Fry agreed that the problem of bottoming out would be more likely if the truck was fully loaded.[46] Mr Fry said that he conducted a test with the truck after doing the works and was only able to replicate a problem when driving at high speed when the truck was unloaded.[47]
  19. [20]
    When cross examined by counsel for the defendant Mr Fry said that to his recollection after the repairs were done he told Mr Sayers that the seat was working properly and that he did not notice the seat being in a crooked position.[48]
  20. [21]
    When cross examined by counsel for the plaintiff Mr Fry said that the weight of a driver could be relevant to the operation of the seat.[49]

Findings on the evidence

  1. [22]
    The plaintiff made a favourable impression when he gave evidence. There was no hyperbole nor suggestion of exaggeration. To the contrary he gave his evidence in what appeared to be a frank way. I was less impressed by Mr Sayers who appeared to be somewhat defensive. The plaintiff’s evidence also appeared to be accurate and reliable. For example there is documentary evidence supporting many of his complaints. Significantly the plaintiff’s account is corroborated by the witnesses Baldock, Faulkner and Jopling. While Mr Sayers readily admitted complaints before the October 2013 repairs he denied complaints after the repairs until the incident of 14 March 2014. But the evidence of Messrs Baldock, Faulkner and Jopling supports the plaintiff’s account of ongoing problems and complaints by the plaintiff. For example both Mr Faulkner and Mr Jopling gave evidence that after the October repairs they had occasion to drive the truck and that they made complaints similar to those made by the plaintiff to Mr Sayers. In these circumstances I find that the plaintiff and Messrs Jopling and Faulkner complained to Mr Sayers that the seat in the truck was uncomfortable and capable of causing discomfort and pain when the truck was being driven and that these complaints were made after October 2013 and before 14 March 2014.
  2. [23]
    Mr Fry impressed me as an experienced and competent mechanic whose evidence was for the most part reliable and accurate. I accept his account of his dealings with Mr Sayers and of the work done on the seat and the truck. However in one respect I am not prepared to accept his evidence. He said that on an occasion on or around 24 November 2013 he had a conversation with the plaintiff in which he asked the plaintiff about the truck and that the plaintiff responded to the effect “all good”.[50] The plaintiff denied this conversation.[51] The circumstances and the evidence as I find it to be suggest to me it is highly unlikely the plaintiff would have made such a comment of and concerning the seat in the truck at the time in question. The plaintiff was making complaints to Mr Sayers about the truck. Others were complaining to Mr Sayers and noted that there were problems with the seat. In these circumstances I am not prepared to accept that the plaintiff made the comment attributed to him.

Employer’s duty of care – plant and equipment

  1. [24]
    In 1979 the learned authors of a leading text said, concerning the employers duty to provide an employee with safe plant:[52]

“The general duty of care personally owed to the employee by the employer relates inter alia to the safety of the plant. In general, the breach will be charged either as a failure to provide any safe and suitable plant at all or as a failure to replace defective plant with plant which was safe and suitable. In some cases the allegation that the plant was unsafe may be an alternative formulation of a case of unsafe system.”

(footnotes omitted)

  1. [25]
    Subject to some developments in the law[53] the statement remains accurate today.
  2. [26]
    More generally the duty of care has been clarified and reinforced in the decades since. In Bankstown Foundary Pty Ltd v Braistina[54] members of the High Court said:[55]

“… It is as accurate today as it was thirty years ago to say that the duty

“is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury”: Hamilton v. Nuroof (W.A.) Pty. Ltd. , per Dixon C.J. and Kitto J.

We digress to remark upon the formulation preferred by Windeyer J., with whom McTiernan, Kitto, Taylor and Owen JJ. Agreed, in Vozza v. Tooth & Co. Ltd., namely:

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

This passage has been repeated more than once in recent decisions of the Court: Raimondo v. South Australia; McLean’s Roylen Cruises Pty. Ltd. It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, “without unduly impeding its accomplishment”, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.

Furthermore, it has long been recognized that what is a reasonable standard of care for an employee’s safety is “not a low one”: O’Connor v. Commissioner for Government Transport. Whether or not it will be found to have been satisfied is always a question of fact to be determined in the light of the circumstances of each case. It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases because no two cases can provide true comparability in circumstances. The Court had occasion to make this point recently in Waugh v. Kippen, in distinguishing from the case in hand the decisions in Turner v. South Australia and Castro v. Transfield (Qld.) Pty. Ltd.

On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ. said in McLean v. Tedman: “Accident prevention is unquestionably one of the modern responsibilities of an employer.” However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v. Broken Hill Pty. Co. Ltd.; Da Costa v. Cockburn Salvage & Trading Pty. Ltd.”

(footnotes omitted, emphasis added)

  1. [27]
    In this context it has been authoritatively established that accident prevention is one of the modern responsibilities of an employer:[56]

“… If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledged by Taylor J. in Smith v. Broken Hill Pty. Co. Ltd., when he referred to an employer contemplating “the possibility of thoughtlessness or inadvertence – or to use what is, perhaps, a stronger word, carelessness”.

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”

(footnotes omitted, emphasis added)

  1. [28]
    Further it has been authoritatively established that the duty of care owed by the employer is non delegable, as part of the obligation to ensure that the system of work is safe and the obligation with respect to plant and equipment is also non delegable.[57]
  2. [29]
    In the context of the duty of care relating to plant and equipment Kirby J. in Schellenberg v Tunnel Holdings Pty Ltd[58] said:[59]

“Secondly, because, in this case, there had been two previous incidents involving the separation of the air hose and the grinder, the risk of a similar incident occurring was clearly foreseeable. Accordingly, the question was whether the employer failed to take the measures necessary to protect employees, such as the appellant, from the dangers inherent in such a foreseeable risk. Given the findings about the immediate cause of the appellant’s injuries, the issue is whether the plant and equipment provided by the respondent to the appellant were deficient, either of their nature or in their maintenance, in a way relevant to the cause of the appellant’s injury. So far as equipment such as the grinder used by the appellant here was concerned, the employer was not an insurer for its safety. An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence.”

(footnotes omitted, emphasis added)

  1. [30]
    The passage from the judgment of Kirby J. was cited with evident approval in the Court of Appeal in New South Wales in TNT Australia Pty Ltd v Christie & Ors.[60] 
  2. [31]
    Until the introduction into Chapter 5 of the WCRA of Part 8 in 2010 the foregoing would have represented a selection of the authoritative cases in this field. However now it is necessary to commence the inquiry, particularly when considering issues of duty, breach and causation by reference to the relevant sections to avoid the risk that such an inquiry would miscarry.[61]

Workers’ Compensation and Rehabilitation Act 2003

  1. [32]
    The plaintiff’s case as pleaded against the defendant, his employer, was upon an alleged breach of the duty of care in tort and breach of the implied term of the contract of employment, inter alia to provide safe plant and equipment.[62] Thus the claim concerned a “duty” and a “duty of care” within s 305 of the WCRA. It can be accepted that the cases I referred to established the existence of a duty of care (in tort and contract) concerning the safety of plant and equipment.
  2. [33]
    Section 305B and s 305C concern the breach of that duty of care. Section 305B provides that a person does not breach a duty of care to take precautions against a risk of injury to a worker unless the risk was foreseeable (that is a risk of which the person knew or ought reasonably to have known), and that the risk was not insignificant and that in the circumstances a reasonable person in a position of the (in this case) employer would have taken precautions. Section 305B further provides that in deciding whether a reasonable person would have taken precautions against a risk of injury, the Court is to consider (among other relevant things) the probability that the injury would occur if care were not taken, the likely seriousness of the injury and the burden of taking precautions to avoid the risk of injury.
  3. [34]
    Section 305C makes further provisions also concerns the liability for a breach of duty. It provides that 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 might be responsible (s 305C(a)). Further it is provided that 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 affect liability for the way in which the thing was done. Further it is provided that the subsequent taking of an action that would have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
  4. [35]
    Thus, as I have said, both s 305B and s 305C must be considered in the context of the consideration of whether the employer breached the duty of care owed to the employee.
  5. [36]
    Sections 305D and s 305E both concern causation in the context of a consideration as to whether a breach of duty caused the particular injury. In relation to the onus of proof s 305E provides that the onus of proof is upon the worker on the balance of probabilities. Section 305D contains what are described as general principles in relation to causation. Importantly under s 305D(1) it is provided that a decision that a breach of duty caused a particular injury comprises an element called “factual causation” which is that the breach of duty was a necessary condition of the occurrence of the injury (see s 305D(1)(a)) and also an element styled “scope of liability” which involves a consideration that it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (see s 305D(1)(b)). Relevant to this case s 305D(4) provides that when deciding the “scope of liability” the Court is to consider (among other relevant things) where they were not and why responsibility for the injuries should be imposed on the party who was in breach of the duty.
  6. [37]
    For the reasons that I propose to make clear in what follows I have concluded, in light of the evidence that I accept, as discussed above, that the defendant employer did breach the duty of care it owed the plaintiff and that as a result it caused him to sustain the injuries and incur the pain and suffering and other loss (which I assess below) within s 305B to s 305E inclusive of the WCRA.

Liability – Findings and discussion

  1. [38]
    The plaintiff’s employment with the defendant between August 2013 and March 2014 gave rise to a risk of injury to his back, particularly his lower back, by reason of some feature or features of the truck seat that caused him to suffer significant pain and discomfort when driving the truck on the roads and highway between Townsville and Rockhampton and return in performing his duties as discussed above.
  2. [39]
    The evidence satisfies me that the risk of injury was both foreseeable within section 305B(1)(a) and not insignificant within s 305B(1)(b). That evidence includes the plaintiff’s own account of his pain and discomfort when driving the truck and the regularity and frequency of that suffering. As well the evidence of others who drove the truck, Mr Faulkner and Mr Jopling, is relevant here. It is also relevant in this context to consider the report of Dr Licina that the defendant sustained a prolapsed disc in the circumstances described to him. The circumstances that Mr Sayers was moved to authorise repairs in October 2013 is relevant as is the evidence of Mr Fry. Mr Fry’s evidence of the problem of discomfort when bottoming out is more frequent on western roads than on the Pacific Highway does not suggest that the risk of injury when driving the truck on the Pacific Highway was neither foreseeable nor insignificant but to the contrary, just not as frequent or perhaps as acute.
  3. [40]
    Further the evidence satisfies me that a reasonable person in the position of the defendant would have taken precautions within s 305B(1)(c) and s 305B(2). The evidence mentioned in the previous paragraph is relevant here. The evidence from Dr Licina’s report and opinion indicates the foreseeable and not unlikely consequence of injury, indeed serious injury, in the circumstances encountered by the plaintiff. The particular inquiry here involves a consideration of what was done and what ought to have been done between the completion of the repairs to the seat in late October 2013 and the suffering of the injury on 14 March 2014. The answer to this comes, I consider, from Mr Fry’s evidence. Before the work was done by Mr Fry in October 2013 he had offered Mr Sayers the option of repairs to the seat at about $2,000 and the replacement of the seat with a new and different seat at about $5,000. But Mr Fry did recommend consideration of replacement with a heavier seat if the complaints persisted after the repairs. The burden of the precaution, being the cost of a replacement seat, was not great (of the order of $5,000) when compared with the risk of injury and the potential for serious injury to the plaintiff’s low back. In this regard, the likely seriousness of the injury, it is significant not only that the plaintiff continued to complain after the repairs but so did others who drove the truck. One final circumstance I consider is relevant here. The seat, it is likely, was simply worn out incapable of repair. The truck had been driven for more than 559,000 kilometres. In light of the persisting complaints, even after the repairs, the necessity of replacing the entire seat with a new and heavier seat as recommended should have commended itself to Mr Sayers.
  4. [41]
    Turning to the question of causation s 305D(1) involves two elements, factual causation and scope of liability. The first matter, factual causation, provided by s 305D(1)(a) involves the “but for” test[63] In this case I am persuaded that if the defendant had replaced the seat with a new and heavier seat the plaintiff would not have sustained the injury suffered on 14 March 2014. It is significant that the plaintiff and others who drove the truck after the October 2013 repairs found it uncomfortable and that the ride was rough. But no one suggested that the problem was endemic to all truck seats of every manufacture. In fact Mr Fry’s evidence suggests to the contrary. It was not suggested that the plaintiff was driving too fast, or that he was inattentive or that he failed to drive to the conditions. The plaintiff was driving on a highway well-travelled by trucks, possibly hundreds of trucks daily. It is reasonable to infer that some seats are better than others. If Mr Fry had been told of the persisting complaints after the repair work he would have recommended the seat be replaced. Further Mr Fry impressed me as a mechanic who would not make a recommendation to a customer unless he considered it would materially improve matters. It is reasonable to infer from Mr Fry’s evidence the likely result that a replacement seat of better quality would so improve the comfort for the plaintiff and reduce jarring and the rough ride that the plaintiff would not have suffered his injury if the seat had been replaced as recommended.
  5. [42]
    In light of my findings when considering s 305D(1)(a) my consideration of the “scope of liability” under s 305D(1)(b) can be brief. The singular act or omission in this case that features as the breach of the duty of care and the cause of the plaintiff’s injury loss and damage is the failure of Mr Sayers to act on the advice of Mr Fry and to authorise a replacement of the chair in the circumstances of the continuing complaints after the 2013 repairs. One well established aspect of the content of the duty of care owed by an employer is “accident prevention”. The failure by Mr Sayers to heed that and to act on the recommendation of Mr Fry leads me to conclude that it is appropriate for the scope of liability of the defendant to extend to the plaintiff’s injury.
  6. [43]
    In addresses the defendant submitted that the plaintiff had failed to identify any particular respect in which the seat was faulty and had failed to prove a fault in the seat. Further in this context the defendant referred to the evidence of Mr Fry that he could not find a fault with the seat after the repairs of October 2013. True it is that the plaintiff did not point to any specific defect or fault in the seat after the repairs save for perhaps some residual tilt in the seat. But his evidence, which I accept, and that of Mr Faulkner and Mr Jopling persuade me that the seat did have an unidentified fault or a number of faults which contributed to a rough and uncomfortable ride and increased the risk of injury in incidents such as that described by the plaintiff on 14 March 2014. Given the number of kilometres the truck had travelled and the evidence of Mr Fry[64] the likelihood is that the seat was simply worn out. Further the issue of identification of a “fault” is in the context of the claim made by the plaintiff against his employer akin to a “red herring”. The duty of care concerns accident prevention and safety. The ongoing complaints made by the plaintiff and others is evidence that, for whatever reason, the seat was unsafe. An employer in the position of Mr Sayers acting reasonably would have appreciated that.
  7. [44]
    That Mr Fry had difficulty replicating the problems encountered by the plaintiff (and others) is not in my view decisive. He was driving the truck immediately after repairs had been completed, in urban conditions and unloaded. His recommendation to Mr Sayers to consider a seat replacement demonstrates that he foresaw the possibility that the problems complained of might persist or after a time re-emerge.
  8. [45]
    In submissions the defendant contended that the plaintiff was contributorily negligent. The only respect in which it is pleaded was that he was negligent in failing to report problems with the seat in the way directed.[65] I have found that the plaintiff (and others) made complaints to Mr Sayers. There is no substance in this allegation. I do not have to consider in these circumstances Division 4 of Part 8 of Chapter 5 of the WCRA.
  9. [46]
    The plaintiff has established his case that the defendant employer breached the duty of care causing personal injury loss and damage.

Third Party Proceedings

  1. [47]
    The defendant claims against the third party for contribution under s 6 of the Law of Format 1995 (LRA) or for damages or indemnity as a tort visa[66] or for breach of the implied terms of the contract between the defendant and the third party for the repair and servicing of the truck and its driver’s seat.[67]
  2. [48]
    In the third party statement of claim the defendant pleaded that there were implied terms in the agreement between the defendant and the third party that the servicing repair and maintenance by the third party of the defendant’s truck would be performed in a competent and tradesman like manner, that the parts and materials supplied would be appropriate and that competent automotive support would be provided by the third party to the defendant in respect of the defendant’s trucks. Identical duties were pleaded in paragraph 8 of the statement of claim. In the pleadings the third party took issue with the formulation of the implied terms and the duties. In this context it might be recalled that in the case of contracts for work and materials it has been held[68] that in the absence of special circumstances there are two implied warranties, that the materials are of good quality (and free from latent defects) and are reasonably fit for their intended purpose.
  3. [49]
    In submissions the defendant contended that if I were to find that the plaintiff’s injuries were caused by a “fault” in the seat the defendant would be entitled to relief against the third party for damages for breach of contract or for negligence. Further, it was submitted, the defendant would be entitled to contribution from the third party under s 6 of the LRA being an indemnity for 100% of any liability that the defendant might have against the plaintiff.
  4. [50]
    In the view I take based upon my findings the third party through Mr Fry gave the defendant competent advice in its options whether to repair or replace the seat and the evidence does not demonstrate that the work was done incompetently.
  5. [51]
    No one pointed to any evidence that the work done or the parts installed by the third party was defective.
  6. [52]
    Rather it was Mr Sayers who failed to heed the advice given to him by Mr Fry that if the complaints persisted after the repairs then a seat replacement should be considered.
  7. [53]
    The evidence does not establish that the third party breached any duty of care (if owed) to the plaintiff. Nor did it either breach any duty it may have owed to the defendant or its contract with the defendant. The cause of the plaintiff’s injury was, as I have said above, the failure of Mr Sayers to follow the advice of Mr Fry.
  8. [54]
    The third party claim should be dismissed.

Assessment of damages

  1. [55]
    The plaintiff gave evidence of his injuries, his subsequent pain and suffering, his attempts to re-enter the workforce and the effects that the injury he sustained has had upon his life. When injured he was 33 years of age, at trial he was 38 years (dob 2 February 1981). He described the effects of the injury he sustained and his current pain and suffering and functionality: When the truck bottomed out felt slightly winded and a “stabbing” and “pins and needles” sensation of pain that originated in his lower back before travelling down his backside on the right side to the side of his right leg and at the side of his right knee.[69] He described the sensation of pain as “pretty excruciating”[70] rating it at a level of nine (9) on a scale of 1 – 10.[71]
  2. [56]
    He was prescribed Voltaren Rapid and Tramadol and later Lyrica and other medications. He was referred to and received physiotherapy treatment which he described as providing some but only temporary relief of his symptoms. He underwent an operation but described it as unsuccessful in mitigating any sensation of pain.[72] He continues to suffer from back quivers radiating down through his backside to his leg and down to his knee. He takes painkillers including Panadol and Nurofen. At the time of trial he described that he suffered from pain steadily at a level of five (5) on a scale of 1 – 10. On bad days it could go to a seven (7).[73]
  3. [57]
    He described finding it difficult to get in and out of his car, lift shopping, attend to house work and participate in day to day activities.[74] He said that he could still participate in camping and fishing trips but that he struggled.[75] But he’d been unable to return to surfing or other water sports. He said that when he drove for an hour and a half to two hours or he sat for an extended period his entire right leg might become numb. Generally it feels very uncomfortable.[76] He said that he could sleep for a few hours each night but that he woke up with pain.[77]
  4. [58]
    He said that he’d been diagnosed suffering from depression and that he found it difficult to engage in playful and spontaneous activities with his young son. He described attending psychological counselling services.
  5. [59]
    In support of the plaintiff’s case he relied upon expert opinions from Dr Paul Licina, a spinal surgeon,[78] and from Professor Harvey Whiteford, consultant psychiatrist.[79] The reports and opinions expressed by Doctors Licina and Whiteford in them were tendered without the requirement for the doctors to be called or to be cross examined. It is the opinion of Dr Licina that the plaintiff suffered an acute disc prolapse in the subject incident and has permanent disability as a result of his spinal injury. The injury related impairment is some 10% total impairment which is the substantial proportion of the total impairment (including his pre-existing condition) of 13%. Dr Whiteford expressed the opinion that the plaintiff has suffered from an adjustment disorder with depressed mood in partial remission. His most recent opinion[80] is that some 50% of the impairment originally assessed might be alleviated if there was a successful return to work.
  6. [60]
    In evidence the plaintiff presented as a man of stated years suffering from low back stiffness and soreness and at times he displayed symptoms consistent with the disorder noted by Professor Whiteford.
  7. [61]
    The plaintiff currently works as a personal care attendant employed by an indigenous organisation. Notwithstanding his own physical disabilities he is able to perform his duties. He gave evidence however of restrictions when leaning over, lifting shopping, entering or alighting from motor vehicles and from pain associated with house work. He is able to sleep but the pain affects his sleep and wakes him up. He is unable to engage in some of the recreational activities that he formerly did and is restricted in his activities.  He said he struggles to go fishing and camping as he used to and does not surf any more. The plaintiff gave evidence that his employment is permanent part time. He is employed up to 30 hours a week but usually can only manage approximately 26 hours.
  8. [62]
    Many of the heads of damage were agreed or important elements associated with them were agreed.
  9. [63]
    With respect to general damages for pain and suffering and loss of the amenities of life it was agreed that, applying the relevant injury scale, the assessment should be $29,920.
  10. [64]
    With respect to past loss of income it was common ground that the plaintiff at the time of his injury was earning $898.40 net per week. There was evidence that had the plaintiff not been injured he would have been made redundant in the event on or about 23 February 2015 because the depot from where he worked was closed by the defendant. Had the plaintiff not been injured I accept that he would have worked for the 49 weeks between the date of the accident and the 23 February 2015 earning $898.40 net per week. It is reasonable to suppose that the plaintiff would have required up to one month to obtain employment. The evidence of the plaintiff but also the witnesses Faulkner and Jopling suggest that experienced truck drivers could find employment as a truck driver in or about Townsville. The evidence suggest that earnings of truck drivers from March 2015 to the time of the trial might vary depending on how much overtime was available and could be as high as $1,100 net per week in the period from February 2015. For the purpose of the assessment of the loss of income after the accident I have decided to perform a calculation based upon a notional full time earnings from March 2015 at $1,000 net per week. The total potential earnings by the plaintiff therefore are approximately $294,000.[81] The plaintiff’s actual net earnings between 14 April 2014 and trial were $69,932.11. Allowing for earning since trial and some rounding I assess this head of damage at $215,000.
  11. [65]
    Interest on a past loss of earnings I calculate at $9,598.13.[82]
  12. [66]
    It was agreed that the award for any past loss of superannuation benefits should be calculated at 9.25%. Doing so my assessment is that the plaintiff’s loss of superannuation benefits in the past is $19,887.50.
  13. [67]
    Past special damages were agreed at $39,644.29.[83]
  14. [68]
    Interest on past special damages was agreed at $143.06.
  15. [69]
    Future medical and out of pocket expenses were agreed at $13,000.
  16. [70]
    The Fox v Wood component of damages was agreed at $7,808.
  17. [71]
    The refund to WorkCover Qld was agreed at $76,335.46.[84]
  18. [72]
    In forming the consideration of the assessment of the component of damages for future loss of income it was agreed that the plaintiff’s current earnings were $630 net per week. Both the plaintiff and the defendant contended for a discount for vastitudes of life and other contingencies upon the assessed loss of 15%. The plaintiff submitted for a calculation through to a notional retirement age at 70 (multiplier 845) and the defendant to a notional retirement at age 67 (multiplier 810). In view of the circumstance that there is a growing trend towards later retirement ages I propose to approach the assessment upon the basis that the plaintiff would have been likely to work through to age 70. In light of the historical earnings of truck drivers in the Townsville region, taking into account the plaintiff’s background and circumstances I consider that an assessment based upon a notional earnings of $1,000 net per week is appropriate. Consequently the plaintiff’s notional loss per week is some $370[85] the calculation of this component of the award[86] is (rounding down slightly) $265,750.
  19. [73]
    It was agreed that the calculation of the plaintiff’s loss of future superannuation benefits should be at 11.265%. Therefore this component is calculated at $29,937.
  20. [74]
    Summarising the damages therefore they can be scheduled as:
  1. General damages $29,920.00
  1. Past economic loss $215,000.00
  1. Interest on past economic loss $9,598.13
  1. Past loss of superannuation $19,887.50
  1. Past special damages $39,644.29
  1. Interest (agreed) $143.06
  1. Future loss of earnings $265,750.00
  1. Future loss of superannuation (11.265%) $29,937.00
  1. Future expenses (agreed) $13,000.00
  1. Fox v Wood $7,808.00

 $  $630,687.98

 Less refund to WorkCover $76,335.46

  

 $  $554,352.52

  1. [75]
    I therefore assess damages clear of the refund to WorkCover at $554,352.52.

Conclusion

  1. [76]
    The judgment and orders should be:
    1. Judgment for the plaintiff against the defendant for $554,352.52.
    2. Dismiss the third party proceedings.
    3. With respect to costs generally including those between the plaintiff and the defendant and those between the defendant and the third party;
      1. (a)
        In the absence of agreement or consent I direct that they be determined on the papers; and
      2. (b)
        Direct that each party submit a written outline no longer than 2 pages in support of their contention within 21 days.

Footnotes

[1]T1 – 25 l45.

[2]Manufactured by Mitsubishi.

[3]T1 – 29 l30.

[4]T1 – 29 l25.

[5]T1 – 29.

[6]T1 – 30 l10.

[7]See T1 – 42 l15 & l40.

[8]T1 – 40 l10.

[9]T1 – 30 l30.

[10]T1 – 30 l43.

[11]T1 – 40 l41.

[12]T1 – 40 l15.

[13]For example see his evidence at T1 – 44 l40ff.

[14]T1 – 46 l5.

[15]  Sometimes called a bump stop.

[16]T1 – 46 l10-30.

[17]See T1 – 46 l35.

[18]T1 – 52ff.

[19]T1 – 53 l13.

[20]T2 – l2.

[21]T1 – 53 l20.

[22]T1 – 53 l31.

[23]See T2 – 11 l4 & 16 and T2 – 20 l38.

[24]T2 – 28ff.

[25]T2 – 29.

[26]T2 – 30.

[27]T2 – 31ff.

[28]T2 – 32.

[29]T1 – 67ff.

[30]T1 – 68 l45.

[31]T1 – 69 l30.

[32]T1 – 79 l29 – T1 – 71 l30.

[33]T1 – 70 l21.

[34]T2 – 45ff.

[35]T2 – 55 l34.

[36]T2 – 49 l7.

[37]T2 – 61 l3.

[38]T2 – 69ff.

[39]See T2 – 73 l10-19 and T2 – 74 l28-37.

[40]T2 – 74 l1-16.

[41]T2 – 74 l45.

[42]T2 – 78 l9 and T2 – 80 l37.

[43]T2 – 78 l39.

[44]T2 – 81 l27-43.

[45]T2 – 81 l47 – T2 – 82 l7.

[46]T2 – 82 l10.

[47]T2 – 73 l35-43 and T2 – 82 l13-30.

[48]T2 – 85 l25-40.

[49]T2 – 89 l17.

[50]See T2 – 76 l32.

[51]T2 – 24 l37.

[52]See “Liability of Employers”, Glass, McHugh Douglas, Lawbook Company Ltd, 2nd ed. page 60.

[53]Including the introduction in 2010 of Part 8 of Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).

[54](1985-1986) 160 CLR 301.

[55](1985-1986) 160 CLR 301, [307]-[309].

[56]See McLean v Tedman (1984) 155 CLR 306, [312] – [313].

[57]See Kondis v State Transport Authority (1984) 154 CLR 672, [687]-[688] (Mason J).

[58](1999) 200 CLR 121.

[59](1999) 200 CLR 121, [102].

[60](2003) 65 NSW LR 1, [50]. In this context see further the observations of Muir J in Urch v Menneguzzo & Ors [2004] QSC 200, [63]-[66].

[61]See for example Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420, [11], [15], [27], [39] and [41].

[62]Statement of claim at paras 2 & 17.

[63]Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420, [45].

[64]See T2 – 78 l9, T2 – 78 l39 and T2 – 80 l37.

[65]Defence para 21.

[66]See para 8 of the third party statement of claim.

[67]See the third party notice and the third party statement of claim at para 7.

[68]Helicopter Sales (Australia) Pty Ltd v Rotor-work Pty Ltd & Anor (1974) 132 CLR 1, 8.

[69]T1 – 40.

[70]T1 – 53.

[71]T1 – 54.

[72]T1 – 60.

[73]T1 – 60.

[74]T1 – 60.

[75]T1 – 61.

[76]T1 – 60.

[77]T1 – 61.

[78]See Exh 8, see report verified 19 April 2016 and accompanying memorandum of discussion held on 3 April 2019.

[79]See report dated 18 March 2016, Exh 9 and accompanying memorandum Exh 10.

[80]See the note of mine 2017 Exh 10.

[81]Being earnings at $898.40 net per week for 49 weeks until 23 February 2015 and subsequently 250 weeks at $1,000 net per week.

[82]Calculated at an interest rate of 1.2% net of weekly compensation payments.

[83]See Exh 20.

[84]See Exh 13.

[85]Being the difference between the notional earnings of $1,000 and his current earnings of $630.

[86]$370 net per week x 845 less 15% for contingencies.

Close

Editorial Notes

  • Published Case Name:

    Griffin v Burleigh Marr Distributions Pty Ltd & Anor

  • Shortened Case Name:

    Griffin v Burleigh Marr Distributions Pty Ltd

  • MNC:

    [2019] QSC 321

  • Court:

    QSC

  • Judge(s):

    North J

  • Date:

    18 Dec 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 321 18 Dec 2019 Judgment for the plaintiff against the defendant for negligence in the sum of $554,352.52; third party proceedings dismissed: North J.

Appeal Status

No Status