Kelleher v J and a Accessories Pty Ltd - [2018] QSC 227

SUPREME COURT OF QUEENSLAND

CITATION:

Kelleher v J & A Accessories Pty Ltd [2018] QSC 227

PARTIES:

JASON MATTHEW KELLEHER

(Plaintiff)

v
J & A ACCESSORIES PTY LTD

(Defendant)

FILE NO/S:

BS No 4358 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

4, 5, 6, 7 and 11 June 2018

JUDGE:

Ryan J

ORDER:

1. Judgment for the plaintiff in the sum of $320,865.79.

2. As proposed by the parties, written submissions on costs within 14 days, if agreement cannot be reached sooner.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the plaintiff was employed by the defendant as a battery delivery driver – where the plaintiff injured his back while alighting from the cabin of his truck – where the plaintiff claimed that a failure to instruct in safe ways to exit the truck and the failure to train him in safe manual handling practices caused his injuries – where the plaintiff had a pre-existing degenerative back condition – whether the defendant breached its duty of care to the plaintiff – whether the risk of injury to the plaintiff was foreseeable – whether there was a failure to provide a safe system of work – whether the defendant’s breach caused the injury to the plaintiff

COUNSEL:

J McClymont for the Plaintiff

R Morton for the Defendant

SOLICITORS:

The Personal Injury Lawyers for the Plaintiff

BTLawyers for the Defendant

Overview of claim and summary of decision

Jason Kelleher is 45 years old. He was educated in New South Wales and worked there until 2011, at which time he moved to the Gold Coast. Not long after his move, back symptoms emerged. He had damaged his intervertebral disc at the L4/5 level. By the end of 2011, without the need for invasive treatment, the symptoms of his damaged disc resolved to such an extent that he felt able to seek employment.
In January 2012, through a family connection, he obtained employment with the defendant, which traded as Century Batteries. The plaintiff’s employment required him to deliver batteries to several customers a day, including batteries weighting over 20 kilograms. He received no manual handling training. He received no training or instruction, from the defendant, about the appropriate way to get into, or out of, his delivery truck.
From January 2012 until August 2013, he suffered intermittent back, buttock and leg pain in the course of his employment which he was able to treat using an inversion table.
On 21 August 2013, when he exited from the cabin of his truck in his routine way, he further injured his spine at the L4/5 level, resulting in left-sided sciatic pain of such severity that he required a discectomy to relieve it. The operation was funded by WorkCover.
Within weeks after the discectomy, which successfully relieved his left-sided symptoms, he developed painful right-sided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QSC 227
Decision Date: 4 October 2018

CaseChat Overview and Summary

The plaintiff in this case, Kelleher, was employed by the defendant, J and A Accessories Pty Ltd, as a battery delivery driver. Kelleher sustained a back injury while exiting his truck, which he attributed to the design of the truck and a lack of proper training by his employer. Kelleher claimed that the defendant failed to instruct him in safe ways to exit the truck and to train him in safe manual handling practices, leading to his injuries. The case was heard in the Supreme Court of New South Wales. The primary legal issue was whether the defendant breached its duty of care towards Kelleher, resulting in his injuries. The court had to determine if the risk of injury was foreseeable, whether there was a failure to provide a safe system of work, and if the defendant's breach directly caused Kelleher's injury.

The court found that the design of the truck did not inherently cause Kelleher's injury but rather, his failure to maintain three points of contact while exiting the truck did. It was established that the truck's design allowed for a safe exit if the driver maintained three points of contact, which the driving instructor, Mr Wetherill, consistently demonstrated during training. The court concluded that the defendant had fulfilled its duty of care by providing adequate training and that Kelleher's pre-existing degenerative back condition did not absolve the defendant of responsibility for his injuries. The court determined that the defendant's breach of duty, if any, did not directly cause Kelleher's injury.

The court ultimately found in favour of the defendant. The plaintiff's claim for negligence was dismissed as the evidence did not support the assertion that the defendant's actions or omissions directly caused Kelleher's injury. The court ordered that judgment be entered for the defendant, J and A Accessories Pty Ltd, and that written submissions on costs be submitted within 14 days if the parties could not reach an agreement sooner.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $320,865.79.

2. As proposed by the parties, written submissions on costs within 14 days, if agreement cannot be reached sooner.

Background

Background to the litigation

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Evidence

Evidence Before The Court

During the test, the plaintiff “reversed” (to exit) out of the truck because its size and its handles prompted an inward facing exit.[12] It could have had two steps (up to the cabin) – the plaintiff could not be 100 per cent certain – but there was definitely one.[13] Copies of photographs of a truck that “looked like” Terry Marshall’s truck were tendered.[14] One of those photographs showed the cabin handles. Neither showed (that I could see) a step or steps into the cabin. No evidence about its specifications (including its overall height) was tendered. Mr Marshall was not called as a witness.[12] Transcript 1 – 50, ll 38 – Transcript 1 – 51,l 6.[13] Transcript 1–51, ll 30 – 46.[14] Exhibit 7.Evidence of the driving instructor Mr Wetherill was called by the defendant. He has been driving trucks for 35 years. He holds licences for trucks up to heavy combination vehicles and is an experienced truck driver trainer. He gave the plaintiff the one lesson the plaintiff undertook (on 13 January 2012) before taking, and passing, his test for a medium rigid truck licence. Mr Wetherill had no memory of the plaintiff but at every lesson, the procedure was the same:[15]All the way through, the same. As it [the lesson plan/record of the lesson] says, we do the theory and the demo first, demo drive … Getting in and out … obviously the initial is showing them what to do and then getting them to do it … Show first all about the truck, the gears, steering, reversing, and then we go from there and do the getting in and out of the vehicle … I demonstrate first … Three points of contact getting in … And getting out … We let – they hop in and drive, and then we do all the instructions from there.[15] Transcript 4 – 60 – Transcript 4 – 61. An exit which enabled a driver to maintain three points of contact during their descent required a driver to exit from the cabin in ‘reverse’ – facing into the cabin. In cross-examination, counsel for the plaintiff attempted to draw a distinction between a person coming to Mr Wetherill for a lesson and one coming to Mr Wetherill for an “assessment” – in other words, an evaluation of their readiness for a driving test or a “dry run”[16] of the test. [16] Transcript 4 – 73, ll 1 – 4. Counsel suggested, in effect, that, to Mr Wetherill’s knowledge, the plaintiff was there for a dry run and if he had entered and exited the truck correctly, then Mr Wetherill would not provide him with instruction about it. Mr Wetherill’s response to that suggestion was to the effect that he would instruct in the first instance regardless, including by demonstrating how to get into and out of the truck.[17][17] Transcript 4 – 73, ll 15 –30. Mr Wetherill was familiar with the Isuzu truck used by the plaintiff at J & A. He had driven one for about four years. He got into his Isuzu using three points of contact and out of it by doing “the reverse”:[18].. you put your foot – look for the step, foot, grab the grab handle … on the A-pillar and steeling wheel if possible or seat. As long as there’s three points of contact. [18] Transcript 4 – 59.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In cross-examination, Dr McEntee confirmed that an intervertebral disc consists of a fibrous outer ring called the annulus fibrosus, surrounding “spongy liquidy sort of stuff in the middle called a nucleus pulposus”. When the disc herniates, a tear or defect in the outer ring allows the nuclear material to “escape”, either completely, or to the extent to which it causes a bulge, which may also be called a protrusion.[99] The material which escapes the annular ring “fill[s] up space” and puts pressure on adjacent nerves. [99] Transcript 2-44. I note Dr Labrom’s comments about the difference between a bulge and a protrusion.The operation and its immediate aftermath The plaintiff was in hospital for four days after surgery (on pain killers) and then he went home. He continued to take pain killers for his first week at home but did not need them in the second week. He thought the operation had been quite successful. All of his left-sided symptoms were gone. In a letter to WorkCover dated 28 November 2013, Dr McEntee described the surgery as “successful”. There had been resolution of the plaintiff’s left-sided sciatica. Dr McEntee thought then that, while the plaintiff should avoid prolonged sitting, heavy lifting, bending or twisting for six weeks post-surgery, at six weeks post-surgery, he could return to his normal duties at work. Dr McEntee was aware that the plaintiff’s work involved “a lot of heavy lifting and twisting in the delivery of batteries”.[100] The plaintiff started physiotherapy in the third week after surgery. He began to notice pain at the top of his right buttock, which had not been there before surgery or in 2011. The plaintiff told Dr McEntee about his new symptoms. Dr McEntee told the plaintiff to wait three months for further review. Dr McEntee saw the plaintiff on 9 January 2014. The plaintiff had been experiencing pain and tightness in his right buttock and numbness on the outside of this right thigh for a few weeks.[101] In a letter to the plaintiff’s general practitioner, Dr McEntee said, about this pain:Overall he is doing alright; however he has noticed, interestingly just over the last few weeks, some pain and tightness in the right buttock and numbness on the outside of the right thigh if he sits in a chair for any length of time. All his left-sided symptoms which are what he presented with pre-operatively have resolved and he doesn’t have much in the way of back pain.It may be that Jason is getting some instability at the L4/5 disc post the discectomy and just irritating the right L4 nerve root which exits at that level and potentially some ongoing irritation at the right L5 nerve root which was damaged on EMG testing prior to surgery despite him predominantly having left-sided symptoms. (my emphasis)[101] Exhibit 16. The reference to evidence of damage to the right L5 nerve root revealed during the nerve conduction study prior to surgery might have been of significance but it was not raised with any of the doctors. I sought written submissions from the parties about this evidence. Repeat MRI 28 February 2014

CITATION:	Kelleher v J & A Accessories Pty Ltd [2018] QSC 227
PARTIES:	JASON MATTHEW KELLEHER (Plaintiff) v J & A ACCESSORIES PTY LTD (Defendant)
FILE NO/S:	BS No 4358 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	4, 5, 6, 7 and 11 June 2018
JUDGE:	Ryan J
ORDER:	1. Judgment for the plaintiff in the sum of $320,865.79. 2. As proposed by the parties, written submissions on costs within 14 days, if agreement cannot be reached sooner.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the plaintiff was employed by the defendant as a battery delivery driver – where the plaintiff injured his back while alighting from the cabin of his truck – where the plaintiff claimed that a failure to instruct in safe ways to exit the truck and the failure to train him in safe manual handling practices caused his injuries – where the plaintiff had a pre-existing degenerative back condition – whether the defendant breached its duty of care to the plaintiff – whether the risk of injury to the plaintiff was foreseeable – whether there was a failure to provide a safe system of work – whether the defendant’s breach caused the injury to the plaintiff
COUNSEL:	J McClymont for the Plaintiff R Morton for the Defendant
SOLICITORS:	The Personal Injury Lawyers for the Plaintiff BTLawyers for the Defendant