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 symptoms. His surgeon recommended a revision discectomy, and sought funding for it from WorkCover on the basis that the emergence of the right-sided symptoms were related to the surgery. WorkCover refused to fund revision surgery, on the basis that the right-sided symptoms were the product of a pre-existing condition.
The plaintiff brought a claim in negligence against the defendant seeking damages for personal injury, including lower back injury and secondary psychiatric/psychological injury.
For the reasons which follow, I found for the plaintiff but in an amount substantially less than he contended for, having regard to the complications of his pre-existing degenerative condition.
The plaintiff’s work history until 21 August 2013
The plaintiff has always worked. In October 1992, after a “gap” of nine months spent surfing at the end of Year 12, he obtained a merchandising traineeship at Kimbers Timbers. After two years there, he worked at CCA Timbers (12 months), Rock Wallabies Landscaping Centre (12 months), and “for a while” at Picture Land (picture framing). In March 1996, he obtained a position at QM Industries (later QM Technologies, then Computershare) as a trainee laser printer operator. He worked there for 15 years, as a senior operator for the last 11.
The plaintiff moved to Queensland in 2011, where he had family. Not long after his arrival, he obtained work at Mobycom. He was required to meet sales targets for mobile phone plans, mostly via cold-calling businesses. He did not enjoy the pressure of sales targets. He left Mobycom in August 2011. For two weeks, he worked as a “gofer” for his cousin, who owned a company that re-fitted offices. By January 2012, he was employed with the defendant.
The condition of the plaintiff’s back before he started work at J & A
The plaintiff had an episode of “cramping” in his back in 2001 which came on while he was walking up a steep hill. He had not experienced the feeling before. He went to the doctor the next day. After taking anti-inflammatory medication for two to three days, his symptoms were relieved.
In the course of his move from New South Wales to Queensland, in May 2011, the plaintiff moved his furniture and effects with the help of two friends. He drove 9 or 10 hours to Queensland. Not long after he arrived, he helped his brother with some “yard work” for half a day.
In July/August 2011, while he was walking (in the course of his employment at Mobycom) he noticed a burning sensation in his left ankle. Later, he noticed pain in his left buttocks and a tightness in his hamstring. He attempted to address his pain with Nurofen and Voltaren. By the time he left Mobycom, in August 2011, he was suffering from occasional symptoms in his leg.
In September 2011, when he was not working, and after his leg symptoms had persisted for about three weeks,[1] the plaintiff consulted a General Practitioner, Dr Coliat. He complained to her about an ache in his left buttock, with pain radiating down his left leg. He nominated, as potential causes of the pain, the drive from New South Wales to Queensland and the yard work which he had done with his brother, even though he did not consider it physically demanding.
[1] Transcript 2 – 12, ll 30–33.
He was referred for a scan and informed that he had “a bulging disc” at the L4/5 level.
The CT scan, performed on 14 September 2011, revealed no disc protrusion at L2/3 or L3/4. But there was a “[l]arge broad based left posterolateral L4/5 disc protrusion with caudal migration and marked compression of the L5 nerve roots”.[2]
[2] Exhibit 1, Medical records, p 1–2.
Dr Coliat told the plaintiff that the injury was “quite serious”. He was placed on a waiting list for “laser surgery”, “to target the nerve” and referred for physiotherapy. Dr Coliat told the plaintiff to avoid activities which were likely to aggravate his back.[3]
[3] Transcript 2 – 21, ll 40–45.
The plaintiff did not find physiotherapy effective, and it was expensive. He did his own research into treatment and purchased an inversion table on 9 November 2011, the use of which provided relief. Indeed, he said the inversion table brought him so much relief he thought he had “solved the problem”. He resumed his search for work.
Obtaining the job with J & A: information given to J & A by the plaintiff about the plaintiff’s back
In late 2011, the plaintiff’s sister told him there was a job vacancy at J & A. He had already met Ian Bailey, the defendant’s manager, through her.[4]
[4] Transcript 1 – 42, ll 9 – 17.
On 19 November 2011, the plaintiff interviewed with Mr Bailey for a job as a delivery driver with the defendant delivering batteries for cars, four-wheel drives and marine vessels.
At the interview, the plaintiff told Mr Bailey that he had a recent back injury. He told
[5] Transcript 1 – 42, ll 35 – 45.
[6] Transcript 1 – 43, ll 5 – 17.
Mr Bailey that he had been treating the injury via the use of an inversion table which had resolved all of his symptoms.[5] The plaintiff did not think he would have any difficulty doing the job, but he wanted to be “completely upfront”.[6]
The ‘resume’ which the plaintiff created for the purposes of his interview with Mr Bailey listed as a key responsibility of one of his former roles, “Deliveries in a 3 ton truck”. The plaintiff told Mr Bailey that he did not have a truck licence. Mr Bailey told him he would need a medium rigid truck licence. Mr Bailey did not ask the plaintiff about his previous truck driving experience.
Pre-employment training and instruction
Tours of the warehouse; ‘trial’ with Terry Marshall
After the interview, Mr Bailey took the plaintiff around the defendant’s warehouse. He showed him where the various batteries were stored.
Mr Bailey did not give the plaintiff any information about “training”. Mr Bailey said nothing to the plaintiff about manual handling techniques generally, or for the batteries in particular. Mr Bailey told the plaintiff to return to J & A for a half-day trial in mid-December, which he did. During that trial, the plaintiff worked with Terry Marshall, loading Mr Marshall’s truck and accompanying him on deliveries. He also drove
[7] Mr Marshall was not called as a witness.
Mr Marshall’s truck that day. Mr Marshall’s truck (an Isuzu FRR) was larger than the truck ultimately assigned to the plaintiff.[7]
The trial was successful and the plaintiff was offered the job. He was to obtain the relevant truck licence and start on 3 January 2012.
Driver instruction/assessment
The plaintiff could afford one driving lesson before his scheduled driving test.
The plaintiff took his lesson in a Nissan truck that was “considerably larger” than the truck he drove for the defendant. He stated that the size/height difference was “significant enough to actually sort of notice when [he] was actually looking at the cabin”.[8] On my comparison of the specifications of the vehicles, the Nissan was 240 mm taller (cabin height measurements) than the truck the plaintiff drove for the defendant.[9]
[8] Transcript 1 – 47, ll 16 – 21.
[9] Compare exhibit 43, specification sheet for a Nissan MKA 265 (lesson vehicle), the full height of which was 2480 mm with exhibit 1, “Liability Documents” pages 3-4, specification sheet for Isuzu NPR250/300 (work truck), the cabin height of which was 2240 mm cabin height – mislabelled as “OAH” (‘over all height’).
The plaintiff said he put pressure on himself to get everything right during the driving lesson, because he was only having one and his test was in three days’ time. He said he was paying particular attention during the lesson. He did not recall the instructor showing him how to get into the truck.
He said, in effect, that because of the height of the truck, as he entered it, he looked for hand holds. He remembered using one step and one hand hold to enter.[10] He said he was not told or shown how to get out of the truck at the end of the lesson – which was, he said, the only time he got out of the truck. He exited facing the cabin because of its “significant height”: “if you didn’t climb out of the truck, you know, there’s a good chance you’d actually fall out and hurt yourself”. The plaintiff “perceived” that the truck he took his lesson in was too high for him to jump or drop out of.[11]
[10] Transcript 1 – 48, , l 34 – Transcript 1 – 49, l 9.
[11] Transcript 1- 49, ll 18 – 43. See also cross-examination at Transcript 2 – 24 – Transcript 2 – 25.
The plaintiff took his test in Terry Marshall’s truck – the FFR – and passed, on 16 January 2012.
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.
Under cross-examination he confirmed that he would instruct drivers of such a truck to enter and exit using three points of contact to prevent driver injury and for “[h]ealth and safety”.[19] In re-examination, he said that there was no substantial difference between getting in and out of the Nissan (in which the plaintiff received instruction) and the Isuzu.[20]
[19] Transcript 4 – 62 ll 20 – 35; and Transcript 4 – 63, ll 20 – 30.
[20] Transcript 4 – 75, ll 1 – 10.
Mr Wetherill agreed, in effect, that the exit in reverse stopped people from jumping from a truck and that there was a risk of injury were a person to jump from a truck, including from the Isuzu.[21]
[21] Transcript 4 – 63.
On the job instruction or training
I find that the plaintiff received no on-the-job instruction or training about manual handling techniques and no on-the-job instruction or training about entering or exiting the delivery truck assigned to him. Nor was he cautioned about the risks associated with those activities.
The defendant had its own Code of Practice which dealt with occupational health and safety including a requirement for formal training of “CSRs” – that is, customer services representatives, like the plaintiff. The existence of the Code of Practice was revealed in Mr Byard’s report.
Even though the defendant’s Code of Practice was likely to have been of great relevance to the plaintiff’s case in all respects, the plaintiff did not tender it. I have therefore taken a cautious approach to the evidential status of the information revealed about it by
Mr Byard.
I have considered the decision of the Court of Appeal in Beaven v Wagner Industrial Services Pty Ltd.[22] I have treated the defendant’s Code of Practice, to the extent to which its content was revealed, as a document of a kind which a reasonable employer, in the position of the defendant, ought to have consulted to ensure, among other things, a safe system of work for its employees.
[22] [2017] QCA 246.
No on-the-job manual handling instruction
For the first three weeks on the job, the plaintiff travelled with Justin Hunter, the employee he would be replacing. He described that period as a three-week “meet and greet”. He was introduced to customers and shown where to park; how to test batteries and how to complete relevant documents.[23]
[23] Transcript 1 – 45 ll 29 – 35.
On his first day at J & A, the plaintiff and Mr Hunter grabbed a warehouse trolley and “picked” the orders to load onto the truck. The plaintiff received no manual handling instruction from Mr Hunter: he “just did what Justin did”.[24]
[24] Transcript 1 –4 6, l 21.
The plaintiff described how he retrieved batteries from the warehouse shelving to prepare for his daily deliveries. He explained that he could not reach some of the batteries and had to stand on pallets to do so.[25] There were trolleys in the warehouse which the plaintiff used to move the batteries to his truck. No one else at the warehouse helped him load his truck with batteries. There was, in fact, an “unwritten rule” that you did not touch another driver’s truck (or load) in case a battery went missing.[26]
[25] See figure 12 of exhibit 2.
[26] Transcript 1 – 74, ll 32 – 41.
The plaintiff had no idea of the weights of the batteries he had to lift. His attention was never drawn to stickers on the batteries which said: “Caution lift with care” or “Caution heavy – consider 2 person lift”.[27] The plaintiff was given no instruction about moving the heavier batteries.
[27] See figures 24 and 25, exhibit 2.
Some of the batteries had handles. Copying Mr Hunter, the plaintiff carried one-handled batteries by their one handle; with one hand; and with one battery in each hand. For the larger batteries, with two handles, the plaintiff used two hands (one hand in each handle) and carried the battery close to his body.[28]
[28] Transcript 1 – 63, ll 1 – 10.
He had never been told how to pick up a 50 or 60 kg battery, and no one had given him instruction about using “mechanical means” to lift the heavier batteries. He said it was “more so common sense really”.[29] At the time, he was 75 kg, and he lifted the 65 kg batteries with a forklift (in the warehouse), raising the forklift platform to the level of the truck platform, and then “just sort of slid[ing] them off with [his] foot … to avoid lifting”.[30]
[29] Transcript 1 – 63, l 17.
[30] Transcript 1 – 63, ll 15 – 25.
The pleaded defence asserted (among other things) that the plaintiff received assistance, from co-workers or at delivery premises, to lift and carry batteries, particularly those in excess of 20 kilograms; that he was instructed not to proceed with a delivery to a customer of batteries in excess of 20 kilograms if the customer provided no assistance (from an employee) or a trolley; that there was a collapsible trolley in the plaintiff’s truck; and that Mr Bailey provided the plaintiff with “manual handling training and/or instruction upon the commencement of his employment to lift with his knees bent and to avoid twisting his body”.
I find that no such assistance or instruction or trolley (as pleaded) was provided. Nor did Mr Hunter give the plaintiff instructions about the correct way to handle the batteries. I find that the plaintiff was not told to ask customers for assistance when he delivered their batteries. He was not told to insist on customers having a trolley available for his use. He was not told what to do if no assistance or trolley was provided.
No on-the-job instruction or caution about exiting (or entering) the truck

Once the plaintiff had his licence (16 January 2012), Mr Hunter permitted him to drive the truck with Mr Hunter as his passenger. Mr Hunter left J & A on 19 January 2012.
Mr Hunter/the plaintiff’s truck was an Isuzu NPR 300.[31] As noted above, it was 240 mm lower (in cabin height) than the truck the plaintiff used in his lesson. To get into the truck, the plaintiff stood on the step, facing inwards. He used upward momentum (pushing off the step with one foot) to reach the handle on the A Pillar with his right hand and swung into the driver’s seat.
[31] Exhibits 8 and 9.
To exit the truck, he did not reverse out of the cabin as he had done during his lesson and test. Instead the plaintiff –
(a)faced outwards;
(b)placed his right hand on the non-stick grip on the wheel arch;
(c)leant forward to put his left hand on the inside of the door,
(d)boosted himself out of the seat (lifting and turning his body); and
(e)“dropped” out of the truck.
There was no oral evidence from the plaintiff about the distance between his feet and the ground when he dropped, but Mr Byard estimated the distance as 500 mm.
The plaintiff said, in effect, that reversing out of the cabin would involve a “free falling pendulum swing sort of thing because you actually didn’t have anything to hold on [to] with your left arm”. He said he could not see the step from the driver’s seat and he would have been “feeling around” in reverse.[32]
[32] Transcript 1 – 53, ll 24 – 35.
He added that one of the other reasons why he did not reverse out of the Isuzu was that “it wasn’t really that high”.[33] He likened it to “the little van” which was sometimes used at J & A when one of the trucks was being serviced.[34] He exited the truck in the same way as he exited the van because “both of the cabins weren’t very high at all”.[35] Although the plaintiff thought that his exiting the truck and exiting the van were equivalent, he thought the truck was “considerably higher than a passenger vehicle”.[36]
[33]    Transcript 1 – 53, ll 35 – 45.
[34]    Transcript 1 – 54.
[35]    Transcript 1 – 53, ll 35 – 45.
[36]    Transcript 2 – 54 – Transcript 2 – 55.
The plaintiff “dropped” out of the truck (facing out) several times in Mr Bailey’s presence. He was not told by Mr Bailey, or anyone else from J & A, not to exit that way.
The plaintiff said he took no notice of how Mr Hunter got out of the truck. He said that Mr Hunter did not tell him it was important to make sure he got out of the truck a certain way. Mr Hunter gave no evidence to the contrary.
Mr Hunter’s practice was, he assumed always, to “reverse” out of the truck’s cabin. He had been told that it was a “critical fail” (for the purposes of his truck driving licence) to get out of the truck facing out so it was “a major thing to remember”.[37]
[37] Transcript 4 – 24, ll 1 – 18.
The plaintiff’s work at J & A
The plaintiff gave evidence to the following effect.
Once he was working on his own (that is, after Mr Hunter left), he was not provided with assistance to deliver and unload batteries at customers’ premises. While one or two customers provided him with a trolley or their staff to assist him, and there was occasional assistance from others, mostly the plaintiff alone unloaded, carried and placed on shelves the batteries he delivered to customers.
The plaintiff said it was no different for the heavier batteries, which had been loaded onto the truck with a forklift. There was no forklift available at any customer’s premises and the plaintiff lifted them off the truck himself, just as Justin Hunter “showed” him.[38] He was also required to remove “expired” batteries (which had reached the end of their shelf life) from customers who held the defendant’s batteries on consignment.[39]
[38] Transcript 1 – 63, ll 25 – 30.
[39] Transcript 1 – 77, ll 1 – 5.
The plaintiff was not always able to park close to the entry to a customer’s premises and there were various obstacles and difficulties associated with some of the deliveries which he reduced to a table.[40] That table also showed the customers he visited each day of the week – that is between 12 and 19 customers a day.
[40] Exhibit 12.
About five weeks into his employment, the plaintiff asked Ian Bailey for a trolley. He was told to grab one from the warehouse. For a variety of reasons, the plaintiff did not think the warehouse trolleys would handle “the terrain”. Nor could he store a trolley on his truck. The plaintiff did not ever use a warehouse trolley on his delivery run. He did not tell Mr Bailey that the warehouse trolleys were not suitable.
It was suggested to the plaintiff that Mr Hunter arranged for a trolley wherever he went or arranged for someone to assist with the batteries. It was suggested to the plaintiff that Mr Hunter told him that the customer was to make a trolley available to him and that he was to get help if he needed help. It was suggested to him that he was told that the policy was that if trolleys or assistance were not provided, the batteries stayed on the truck – and indeed, that if that were to occur, Mr Bailey would call the customer and “pull them back into line”. All of those suggestions were denied by the plaintiff.[41]
[41] Transcript 2 – 22 – Transcript 2 – 23.
Mr Hunter did not remember the plaintiff by name but he remembered that someone went with him on his deliveries during his last few weeks at J & A. He agreed that “sometimes” he asked customers for assistance or for a trolley, but he was not asked whether he did so while the plaintiff was with him. He was not asked what instructions he gave the plaintiff about trolleys or assistance from customers. He said the only places he needed a trolley were Supercheap Auto and Batteryworld[42] – places which, on the plaintiff’s evidence, provided trolleys. He said he would not unload a battery if he needed assistance to do it. He could not recall an occasion when he asked for assistance and it was not provided to him.
[42] Transcript 1 – 65; Transcript 1 – 67, ll 3 – 7.
Mr Bailey was not called as a witness.
I find that while the plaintiff was ‘training’ with Mr Hunter, Mr Hunter did not ask for assistance or trolleys while at customers’ premises. I find that Mr Hunter did not tell the plaintiff that the customer was to make a trolley available to him; nor was the plaintiff informed of a policy which required the batteries to stay on the truck if no assistance or trolley was provided – and in pursuance of which Mr Bailey would pull non-complying customers into line.
The plaintiff’s back condition after starting work at J & A and before 21 August 2013
It was only after Mr Hunter stopped working for the defendant, leaving the plaintiff to work alone, that the plaintiff appreciated the labour of a full workload. He began to develop pain again in his left buttock and he used his inversion table “a lot more”.[43]
[43] Transcript 1- 75, l 31.
On one or two occasions, before he asked Mr Bailey for a trolley, the plaintiff told him he could not come into work because of the pain.
Between March and October 2012, there were “a few times” when the plaintiff came home from work and “jump[ed] on” his inversion table to “take the pressure off [his] spine”.[44] Although “the paper work” indicated that the plaintiff told Mr Bailey about his episodes of back pain on six occasions, they were friends, and the plaintiff thought it was more than that.
[44] Transcript 1 – 76, ll 14 – 17.
The plaintiff moved in with Mr Bailey in October 2012 – taking his inversion table with him. He stayed about six months, during which time he had episodes of pain associated with his work, which he told Mr Bailey about. He used the inversion table at Mr Bailey’s house. The plaintiff did not see a doctor about these episodes of pain, nor did Mr Bailey tell him to do so. The episodes of pain were not as significant as the pain he had experienced in September 2011, which drove him to the doctor.
The plaintiff said that “there was always an underlying degree of pain”[45] but with the help of his inversion table he felt he could still do the job. There were –
·two occasions when he had to take time off work;
·another six occasions when he had pain in his back or leg, which resolved when he used his inversion table; and
·other occasions (between those six episodes) when he had symptoms[46] “but only mildly”.[47]
[45]    Transcript 1 – 79, l 10.
[46]    Transcript 1 – 79, ll 28 – 45.
[47]    Transcript 1 – 79 – Transcript 1 – 80.
He occasionally lay down on the pallets at work to relieve his pain – when he had “flare up[s]” in his right buttock and the burning sensation in his ankle.[48] The incidents of pain corresponded with weeks which contained public holidays because of the reduced time in the working week to complete the deliveries and the resulting increased workload. The plaintiff’s workload also increased if one of the other drivers was away from work.
[48] Transcript 1 – 80, ll 1 – 10.
I note that the history upon which the doctors provided their opinions did not include all of these facts. Neither Dr Campbell nor Dr Labrom appear to have appreciated that the plaintiff suffered from “always an underlying degree of pain”. Neither referred to his need to lie down at work occasionally.
The plaintiff spoke of flare ups in his right buttock. His complaint to Dr Coliat in 2011 had been of pain in his left buttock. It may be that he was mistaken about pain in his right buttock rather than his left, and that what he intended to convey (by using the expression “flare up”) was that the pain he had experienced in 2011 returned.
On a Wednesday in June 2013, the plaintiff hurt his back while he was lifting stock from a trolley at Supercheap Auto Mermaid Beach, so that he could use the trolley to deliver the defendant’s batteries. The stock on the trolley was Supercheap’s stock. It was contained in boxes which were not very large and which were light. The plaintiff had to bend over to remove the boxes, because the space he was in was confined and he could not turn the trolley around. He felt a “click” in his back and dropped to the ground in pain. The pain was in his back and down his left leg. He went home. He used his inversion table on Thursday and Friday and was able to return to work the following Monday.[49]
[49] Transcript 2 – 56 – Transcript 2 – 57.
After that incident of pain, the plaintiff rang Mr Bailey and told him that he could not keep carrying the heavy batteries. He took a week off work to look for a mature-age apprenticeship as a locksmith. He had one favourable response which suggested an opportunity in 12 months’ time.
I note that while the plaintiff told Mr Bailey that he could not keep carrying the heavy batteries after the pain he experienced at Supercheap Auto at Mermaid Beach, his pain on that occasion was not brought on by his handling of heavy batteries. It occurred when he bent over to pick up light, not very large boxes.
Expert evidence
Preliminary observations
To prove that the plaintiff’s work tasks – that is, his manual handling and exiting from his truck – carried a foreseeable and not insignificant risk of injury, and to identify the ways in which the risk should have been addressed, the plaintiff relied primarily upon reports prepared by Phillip Byard and Brendan McDougall, engineering consultants from Intersafe.
Mr Byard’s report dealt mostly with the plaintiff’s manual handling tasks. It also dealt with the plaintiff’s exit from the truck, but Mr Byard’s conclusions about the risks associated with the exit did not, on its face at least, assist the plaintiff.
Mr Byard’s report was supplemented by Mr McDougall’s report, which dealt with the plaintiff’s exit from the truck. Mr McDougall’s conclusions did assist the plaintiff.
The material available to Mr Byard included a report by G4S compliance and investigations. Annexure 9 to the G4S report was the Century Yuasa Code of Practice (the CYCOP).[50] The CYCOP was discussed by Mr Byard in his report, but not attached to it. Its content, as revealed by Mr Byard, suggested that it was a very relevant document – yet it was not tendered in evidence as I have noted.
[50] Exhibit 2, page 10.
Mr Byard selected from the CYCOP those parts which were particularly relevant to the risks associated with manual handling in the course of the plaintiff’s employment.
He did not discuss the CYCOP in his consideration of the risks associated with the plaintiff’s exit from his truck. However, Mr Byard discussed no guidance documents at all in the section of his report about the exit from the truck (cf the section of his report on manual handling). That may have been because that section was prepared as an addition to an earlier report,[51] was relatively brief and concentrated on ground forces.
[51] Exhibit 2, page 1: “This report is identical in all respects to the first report dated 3 December 2015 except for the addition of an additional section titled ‘Event of 21 August 2013’”.
Mr McDougall did not refer to the CYCOP.
The CYCOP explained that it was expected that employees such as the plaintiff (who were designated as “Customer Service Representatives” (CSR)) would receive a “comprehensive induction program”. The “safety topics” to be covered included one called “In the field with CSR”.[52]
[52] Exhibit 2, page 14.
The CYCOP included a section within the Occupational Health and Safety chapter entitled Manual Handling/Ergonomics which dealt with the way in which risks associated with manual handling were to be controlled.
The CYCOP contained a Work Health and Safety Induction handout, which, as put by
[53] Exhibit 2, page 12.
Mr Byard, “highlights the significance of manual handling as a major contributor to workplace injuries”.[53]
Expert evidence about manual handling and its risks
After a site inspection and consideration of the plaintiff’s “run sheet” and other information, Mr Byard calculated the distribution of the weights of the batteries delivered by the plaintiff for the two-week period 24 June 2013 to 5 July 2013. The plaintiff handled, on average, 1,286 kg of batteries each day. The average battery weight was 13.8 kilograms. Batteries were handled between two and four times. Between 23 and 46 batteries were handled per hour. The plaintiff estimated that he carried the batteries over distances ranging from zero metres (if a trolley was available or he was able to park close to a loading dock) to 30 metres.
Mr Byard identified general risk management standards available in Australia, which provided guidance to organisations for avoiding risk via risk management processes, as well as standards specific to health and safety at work. The standards also provided guidance about the use of controls to eliminate hazards.
Mr Byard concluded that the plaintiff’s battery handling was a high-risk task for any person. He noted that the plaintiff had advised Mr Bailey that he had damaged his back previously and said, “This could have alerted J & A that Mr Kelleher may not be suitable for the work and at least conduct an assessment of the tasks and provide clear instructions on how tasks were to be performed”.[54]
[54] Exhibit 2, page 56.
In Mr Byard’s opinion, the defendant could have (and should have) identified the risks associated with the plaintiff’s manual handling tasks and put in place appropriate controls to manage those risks.[55] It did not. The risks included the risk of musculoskeletal injuries.
[55] Exhibit 2, page 43.
Mr Byard said that batteries weighing more than 33 kilograms should not be handled manually – rather they should be handled “mechanically” or by “pushing/pulling”, relying on height adjustable trolleys (photographs of which he included in his report). Mr Byers suggested that an “appropriately equipped truck” could be dedicated to the delivery of the heavier batteries. He suggested a trolley or a two-person lift (with the assistance of a swingle bar to guarantee equal distribution of the load) for batteries weighing between 20 and 33 kilograms. Batteries weighing between 10 and 20 kilograms should be lifted with two hands and kept close to the body. They should be lifted using two handles or with the assistance of a swingle bar designed for one-person use.[56]
[56] Exhibit 2, pages 61 – 62.
He recommended training for workers including about the risks associated with manual handling and safe strategies. In his opinion, a report of pain symptoms ought to have prompted the implementation of a risk management approach to manual handling tasks.[57]

[57] Exhibit 2, page 67.

Expert evidence – exiting from the truck
Mr McDougall

The plaintiff relied upon Mr McDougall’s report to prove that there was a foreseeable and not insignificant risk of injury in the plaintiff’s manner of exiting the Isuzu.
In addition to his expertise in occupational health and safety, Mr McDougall’s expertise included that which he had acquired as a fleet manager for the Shell Oil Company of Australia. In that role he was responsible for the training of 130 drivers, including training them in “rearwards access and egress techniques [from their vehicles] using 3 functional points of support” and “addressing driver resistance” to rearwards exits. His experience also included his work at InterSafe as an advisor to organisations about the “appropriate” way to get into and out of (or off) mobile machinery.[58]
[58] Exhibit 38.
Mr McDougall said that his work experience with Shell and CSR involved “investigating vehicle access incidents which did occur, working with truck manufactures to improve the design of vehicle access systems and educating drivers with respect to behaviours required to minimise risk when accessing and egressing vehicles”.[59] He relied upon that experience for the opinions contained in his report.
[59] Exhibit 3, page 1.
Mr McDougall understood the plaintiff’s exit from the Isuzu, on 21 August 2013, to involve a two footed landing:[60]
… Using the handgrips to support his body weight, he then swung/slid both feet out of the tuck (sic) cabin and whilst facing out from the cabin, ‘jumped’/dropped to the ground …
[60] Exhibit 3, page 2, 4(e).
Mr McDougall noted the space restrictions within the Isuzu, which “increased the difficulty for a driver to rise from a sitting position, stand and turn through 90° to face towards the cabin before descending.[61] He noted the non-slip pad on the wheel arch, which “promotes this [facing outwards] method of cabin egress (i.e. the right hand to be placed on this pad)”. He pointed to the worn paint on the wheel arch, which he said indicated that it was “a methodology used by many drivers of this vehicle over many years”.[62]
[61] Exhibit 3, page 5.
[62] Exhibit 3, page 7.
There was no evidence about the duration of Mr Hunter’s employment with the defendant, but I note his evidence about the way in which he exited the Isuzu – notwithstanding the location of the non-slip pad.
In Mr McDougall’s experience, the way in which the plaintiff exited his truck was the “common methodology used by most drivers of this design of truck (but also other vehicles such as forklifts, 4WD’s, etc. with similar or slightly lower height cabins) who have not received specific training or instruction”.[63]
[63] Exhibit 3, page 7.
Mr McDougall said that injuries commonly occurred if a driver’s hand slipped off the wheel arch (while exiting as the plaintiff described), or a foot slipped or landed on an uneven surface, causing a loss of balance and a fall.
The plaintiff’s method of exiting the truck by way of a jump or drop meant that his “body centre of mass” fell 500mm, with “significant potential for large compression loading in the spine or jarring, if landing with legs straight (as opposed to knees being flexed to cushion the impact)”.[64]
[64] Exhibit 3, page 10.

He referred to several documents which dealt with the “undesirability of workers jumping down from vehicles and the potential for impact injuries to the back, legs and arm joints when jumping down from vehicles”.
Those documents included the Queensland Road Freight Transport, Health and Safety Guide which made the point that one of the major injury mechanisms for the road freight transport industry was slipping and falling while getting into and out of trucks.[65] However, the resources to which Mr McDougall referred had their limitations, which are discussed below.
[65] Exhibit 3, page 10.
After listing those documents, he stated that injuries were “common”:[66]
Essentially, injuries associated with exiting truck cabins or jumping down from truck body’s (sic) are common. The injury outcomes range from disc lesion through to severely damaged knees, ankles, shoulders, etc.
[66] Exhibit 3, page 11.
He listed common risk factors, including a worker being “not trained … in getting in and out of the cabin with minimal risk”.[67]
[67] Exhibit 3, page 12.
In his opinion, the dimensions and qualities of the Isuzu increased the risk of a “fall incident”, which risk “could have been identified during audits and risk assessments of the vehicle or during observation of the driver delivery task as part of an appropriate occupational health and management system”.[68]
[68] Exhibit 3, page 12.
He explained – in effect – that an employer would find the framework of a typical occupational health and safety management system in documents including Australian Standards and that a risk management process was a basic element of those systems. There was a need for employers to systematically identify and control risks in the workplace.[69]
[69] Exhibit 3, page 12.
He included, among potential control measures of the risk associated with exiting a vehicle’s cabin, the selection of different delivery vehicles or retro-fitting handgrips or handrails. However, he acknowledged that one of the “readily accepted” administrative controls was the “training [of] workers to always maintain three-point support” when “using access systems or working at height”, which would preclude drivers from jumping out of truck cabins and require them to reverse out of the cabin.[70]
[70] Exhibit 3, page 14.
In Mr McDougall’s opinion, had Mr Kelleher employed a “three points of support” technique, he would have been “better able to control his rate of descent” and the potential for injury “would have been significantly reduced”.[71]
[71] Exhibit 3, page 15.
Mr McDougall explained that for an administrative control to be effective, it was necessary (among other things) to enforce it by providing appropriate supervision. He said, “Significant practice is required before the recommended access technique becomes a learned repeatable behaviour.”[72]
[72] Exhibit 3, page 17.
In cross-examination, Mr McDougall confirmed his belief that “all injuries at workplaces can be prevented” and that his investigations were always done “with the benefit of hindsight”.[73]
[73] Transcript 4 – 29.
Mr McDougall was taken to page 7 of his report, at which the following paragraph appeared (part of which was extracted above):
In the author’s experience, the method of cabin egress used by Mr Kelleher is the common methodology used by most drivers of this design of truck (but also other vehicles such as forklifts, 4WD’s, etc, with similar or slightly lower height cabins [than the Isuzu]) who have not received specific training or instruction.
Mr McDougall explained that the purpose of that statement was to make the point that it was “common that people will exit facing outwards and simply jump down”.[74]
[74] Transcript 4 – 39, ll 1 – 5.
I assume with an eye on the decision of the Court of Appeal in Williams v Mt Isa Mines,[75] counsel for the defendant asked Mr McDougall whether he intended to convey that getting out of counsel’s Toyota Landcruiser was “much the same as getting out of … this Isuzu truck”. Mr McDougall said:[76]
Your four-wheel drive will probably be of the order of about 12 inches lower, so you – the seat in the Isuzu would be about 12 inches higher than your four-wheel drive seat, and hence when – when you’re swinging out – I imagine when you’re swinging your legs out of your four-wheel drive, your feet don’t come in contact with the ground. You’ve still got to fall down … So, from – from the Isuzu, we’re falling at least another 300 mill.
[75] [2001] QCA 101 in which McMurdo P, with whom Williams JA and Ambrose J agreed, said at [16] (citation omitted) “Alighting from the truck was an ordinary everyday event which involved some obvious risk; an employer could not reasonably be expected to warn of the potential danger of such a risk; any risk must have been obvious to the appellant who described the process as akin to alighting from his own Toyota Landcruiser. There were no circumstances here that made a specific warning or special training necessary.
[76] Transcript 4 – 39, ll 15 – 24.
Mr McDougall was taken to the statement in his report that injuries associated with exiting truck cabins or jumping down from truck cabins were common. He was asked whether he included in that statement “all the range of trucks or the like that people might drive”.[77] Mr McDougall said that he had but confirmed that there has been no study about the frequency of injuries for people exiting a truck like the Isuzu. He referred to studies into forklifts, which revealed that 30 per cent of injuries to drivers occurred when they got on and off the forklift and drew comparisons between their size and their drivers’ method of getting out of them with the Isuzu and the plaintiff’s method of getting out of it.[78]
[77] Transcript 4 – 49, ll 40 – 50.
[78] Transcript 4 – 41.
In response to Mr McDougall’s observation that people who exit “mobile equipment … by facing away … and jumping down … are commonly injured”, counsel for the defendant suggested, in effect, that the injury could not be called “common” because the plaintiff had exited his vehicle 7000 times without mishap. Mr McDougall replied that a one in 8000 (sic) chance of a serious accident was “a very high frequency”.[79]
[79] Transcript 4 – 41.
An incident free history is not irrelevant, but it is not determinative: Kuhl v Zurich Financial Services Australia Pty Ltd.[80] In Suncorp Staff Pty Ltd v Larkin,[81] Muir JA said (footnotes omitted):
[26] The fact that no previous injury may have been sustained as a result of a particular workplace practice or item in a workplace does not necessitate the conclusion that the risk of injury should be regarded as slight ...
[80] (2011) 243 CLR 361 at [82].
[81] [2013] QCA 281.
Mr McDougall agreed that there was still a risk of injury inherent in the three points of contact while reversing method of exiting a truck. He agreed that there was a risk of injury “in whatever we do in this world” and added “but we can minimise it”. [82]
[82] Transcript 4 – 42, ll 1 – 19.
I mentioned above the documents which Mr McDougall attached to his report which dealt with “the undesirability of workers jumping down from vehicles and the potential for impact injuries to the back, legs and arm joints when jumping down from vehicles”.[83]
[83] Exhibit 3, page 10.
While those documents did make that point, in my view, some were of very little relevance in this case.
Taking them one by one:
·Queensland Government “Road Freight Transport Health and Safety Guide”
Only two pages of this guide were provided.
At page 10, it stated, “Getting into and out of a truck cabin, particularly larger trucks can be risky”.
On the same page, it identified as one of the “main risk factors” “too high a first step – more than 400mm”. The Isuzu’s first (and only) step was 500mm off the ground.
On page 11 of the document, in a table which contained a column headed “Safe solutions for getting in and out of trucks”, it referred to training in the correct technique (the three-point contact technique).
·“Queensland health and safety hazard Identification checklist: Road freight transport industry”
The checklist asked whether jumping down from the cabin or trailer was actively discouraged.
·“Queensland Government, Department of Industrial Relations, Road Freight Transport Industry Access to cabins”
The first part of this document repeats the content of page 10 of the first document on this list (in a different font and style).
The “guidelines” for creating less risk and strain for drivers include always maintaining three points of contact when entering or exiting the cabin; and “don’t jump from the cabin”.
·Victorian Governments “Prevention of Falls – Trucks”
This document concerns drivers working at height on much larger trucks than the Isuzu. It focused on falls above and below two metres. The plaintiff was not “working at height”.
In terms of cabin access, the document focused on cabins of a height of over two metres – although I acknowledge the reference in it to the risks to drivers getting into or out of cabins lower than two metres.
The document stated (for both cabin heights): “Drivers should always be facing the cabin when exiting and never jump down”.
In my view, this guidance document is of some, albeit limited, relevance.
·Work Safe Victoria “Prevention of falls in the transport of roof trusses and wall frames”
This document has no relevance here – the plaintiff was not transporting roof trusses or wall frames or anything like those things.
The whole of this document was attached to Mr McDougall’s report. Its introduction stated “The information in this guide has been written specifically for the truss and frame industry …”
·South Australia Workcover “Road Transport Falls Prevention Manual”.
This document (which was also attached in its entirety) focuses on vehicles larger than the Isuzu.
The photographs on the page headed “Risk control – prevention of falls” are of vehicles with two step entries to their cabins.
I acknowledge that the solutions proposed to the hazards and risks include maintaining three points of contact when getting into and out of vehicles and facing the vehicle when getting on or “off” it, but I consider this document of limited relevance.
·“National falls from heights in the heavy vehicle sector report”
As its title suggestions, this document applies to heavy vehicles. Its relevance is marginal.
·Queensland Government’s “Road freight transport industry – falls from trucks”
This document opened with this phrase “Where people are required to access high areas of transport vehicles, for example tankers, car carriers and livestock carriers, there may be a risk of falling”. For obvious reasons, nothing in this document was relevant to this matter.
·Attachments 9 and 10 were identical copies of the same document, dealing with Risk Management.
Mr McDougall did not mention the defendant’s Code of Practice document even though, according to Mr Byard’s discussion of it, it included a chapter entitled: “Transportation of Dangerous Goods by Road” and, within the Occupational Health and Safety chapter, it included a part entitled: “Transport Safety”.
Mr Byard
At pages 56 – 60 of his report, Mr Byard addressed the forces which (in his opinion) could be transferred to the lumbar spine during the plaintiff’s exit from the truck.
He referred to the plaintiff’s description of his method of exiting the truck (grammar corrected):[84]
Mr Kelleher described facing forwards while exiting and placing one hand on the door and one hand on the mud guard and recalls that he jumped down a distance of 500 mm. This estimate is consistent with the author’s experience at inspection of exiting the truck and the height at which a jump could be initiated … Mr Kelleher also stated that he did not experience a jolt on landing on the ground.
[84] Exhibit 2, page 57.
The plaintiff was cross-examined about whether he had or had not experienced a jolt upon landing on 21 August 2013. He said that Mr Byard had worded the sentence incorrectly. There was definitely a sensation in his back. He also clarified that he had not stepped onto the ground: “there was a drop included”.[85]
[85] Transcript 2 – 79.
Relying on research, Mr Byard concluded – in effect – that there was no risk of injury to a man the plaintiff’s size who exited from the cabin of the Isuzu in the way the plaintiff described: the ground forces exerted upon such a man did not exceed the limit for spinal damage.[86]
[86] Exhibit 3, page 58. Notwithstanding his conclusion, Mr Byard stated “That being said, jumping from vehicle cabs during exit has long been recognised as contributing to the incidence of ankle, knee and lumbar spine damage and is discouraged”. Exhibit 2, page 59.
The plaintiff did not rely upon this aspect of Mr Byard’s evidence. His counsel informed me that that was because that matter was to be dealt with by another engineer.[87]
[87] Transcript 1 – 21, line 33.
For obvious reasons, the defendant wished to rely upon it.
However, in my view, Mr Byard’s opinion was not – at least in the way in which it was presented to me – supported by the research upon which he relied. My reasons for that conclusion follow.
Mr Byard worked on a limit for spinal damage of 3400N, based on the biomechanical limit for spinal damage for manual handling, which I have assumed is a valid approach.
Mr Byard stated in his report that research into the ground forces associated with exits from vehicle cabs showed that, for falls of about 0.5 metres, force plate measurements were about two to three times body weight.
Taking into account the plaintiff’s weight at the time, Mr Byard calculated the ground reaction force to be 2200N (three times the plaintiff’s body weight x acceleration under gravity – that is 3 x 75 (kgs) x 9.81m/s^2). That was less than the 3400N limit, even if all force were absorbed by the lumbar spine (and no force was attenuated through lower joint systems, for example).
To reach his conclusion about the ground reaction force upon the plaintiff’s spine upon his exit from the truck, Mr Byard relied on data from a research paper concerning exits from a “delivery van” (referred to as a “step van” in the research) because of its roughly comparable drop distance of 0.43 m compared to the drop distance from the Isuzu which was estimated by Mr Byard at 500 mm (or 0.50 m).[88]
[88] Exhibit 2, pages 58 – 59.
However, the several methods of exit from the step van which were measured were nothing like the method of exit described by the plaintiff, which involved a two footed landing.
It is implicit from the content of the data that the exits from the step van which were examined involved a step down from 43 centimetres – one foot at a time –, in the following circumstances:[89]
·not using a rail, at a “normal” speed;
·using a rail, at a “normal” speed;
·not using a rail, at a “fast” speed;
·not using a rail, at a “normal” speed, while carrying a package; and
·using a rail, at a “normal” speed, while carrying a package.
[89] Exhibit 2, page 59.
The plaintiff’s method of exit involved no step or rail or package. It bore more similarity to the “squat jump forward” exit referred to under the results for COE Tractors and Conventional Tractors in the same data.
The data implies that a stepping descent rapidly decreases the “multiple of body weight” variable.[90] Indeed, the research was entitled “Understanding and Preventing Falls”[91] and it is easy to see where it was likely heading.
[90] Exhibit 2, page 59, Figure 47, which has been photocopied from the research.
[91] Exhibit 2, page 58, footnote 32.
It seems to me very unlikely that the data based on exits from the step van relied upon by Mr Byard would be applicable to the plaintiff’s very different exit from the Isuzu. I acknowledge, of course, that I am not an expert and my impression of the applicability of the data may be wrong. However, Mr Byard was not asked about the significance of the difference (if any) between the type of exits measured and the plaintiff’s exit. In my view, the evidence, as presented, does not assist the defendant.
I prefer Mr McDougall’s opinion that there was the “significant potential for large compression loading in the spine or jarring, if landing with legs straight” inherent in the plaintiff’s method of exit from the truck - a conclusion which, as Mr Byard admitted, has “long been recognised”.
21 August 2013 – pain after “jumping” from the truck
In the lead up to 21 August 2013, one of the delivery drivers, Terry Marshall, had been off work for one and a half weeks and the plaintiff’s workload increased significantly.
On 21 August 2013, a Wednesday, while Mr Marshall was still away, the plaintiff drove the work ute to deliver an order to Supercheap at Oxenford (an extra duty). He then returned to the warehouse and loaded his truck for his usual delivery run. He drove to Tyreright at Varsity Lakes. He pulled up in the car park. He opened the door of the truck and exited in his “normal” fashion. As his feet hit the ground, he felt a sensation in his back which he had not previously experienced.
He was thereafter unable to straighten his back. He continued with his deliveries for a little while. But an hour later, his back pain was at “10 out of 10”. As well as back pain, he was suffering pain in his left leg including in his buttock and ankle.
He went home. He was unable to climb onto his inversion table. By Sunday evening, he was reduced to crawling on his hands and knees, because he could not stand upright.
The plaintiff went to his general practitioner, Dr Phythian, on 26 August 2013. Dr Phythian provided the plaintiff with a WorkCover medical certificate; prescribed him Panadeine Forte; and referred him for a scan and to Dr McEntee, a specialist.
Assumptions made by experts about the way in which the plaintiff exited the truck on 21 August 2013
Preliminary points
This content is included because of a submission made by the plaintiff’s counsel which is dealt with below.
The plaintiff called Dr Scott Campbell as his expert; the defendant called Dr Robert Labrom.
It is useful to compare Dr Campbell’s and Dr Labrom’s understanding of the plaintiff’s exit from the truck immediately after the plaintiff’s description of it. All of the emphases in the quotes from the doctors under this heading are mine. As the following extracts demonstrate, there was no consistency in the language used by the doctors (and to the doctors) to describe the plaintiff’s descent.
Dr Campbell
It is not possible to be confident that Dr Campbell understood the plaintiff to have landed with both feet on 21 August 2013.
Dr Campbell’s understanding (as at 8 May 2015) was that the plaintiff “stepped out of the cab of the work truck and dropped 50 cm and struck the ground firmly and noticed immediate onset of lower back pain and left sciatica”.[92]
[92] Exhibit 1, C2 and C5.
He described his understanding of the history differently in his report of 11 May 2018, but still referred to the plaintiff’s stepping out of the truck:
Whilst working at a brisk pace he stepped out of the cab of a work truck and unexpectedly dropped 50 cm and jarred his torso on the ground.
At trial, Dr Campbell did not refer to the plaintiff “jumping” out of the truck. He referred to the plaintiff stepping out of the truck –
·T 3 – 9, ll 32 – 34: “ … some of his current problems are … due to stepping out of the truck …”;
·T 3 – 10, ll 23 – 25: “ … that has made a contribution to his overall pathology, as has stepping out of a truck …”;
·T 3 – 11, ll 30 – 33: Dr Campbell answered, without demurrer, a question asked in cross-examination which referred to the plaintiff having “landed on the ground, or stepped on the ground.
Dr Labrom

As at 16 April 2015, Dr Labrom understood the plaintiff to have injured himself in the following way:
He was moving from a truck which involved dropping a distance of around 1 – 2 feet (12 – 24 inches). Upon impacting the ground, he felt some pain in his back and he found it difficult to straighten up.
Dr Labrom was likely to have based this estimate of height on the questionnaire completed by the plaintiff on 30 April 2015.[93] Twelve to 24 inches is equal to 30.48 to 60.96 centimetres.
[93] Exhibit 1, F9.
As at 24 January 2018, Dr Labrom’s understanding of the history was the same – the plaintiff dropped 1 – 2 feet while moving from the truck.[94]
[94] Exhibit 1, F35.
In the questionnaire completed by the plaintiff on that occasion (16 January 2018) the plaintiff said “I exited my truck (Izusu NPR300) and when my feet landed on the concrete I felt a sensation in my lower back and was unable to stand upright”.[95]
[95] Exhibit 1, F24.
In his diary note of 11 April 2018, Dr Labrom referred to the plaintiff having “jumped” from the truck.
At trial, Dr Labrom himself used the words “stepped” or “stepping” to describe the plaintiff’s exit from the truck, although he did not demur when counsel used the words “jump” or “jumped” or “jumping” –
·T 3 – 44, ll 25 – 28: [Q] “ … I think you accept in this case … that what brought Mr Kelleher to surgery in November 2013 was the significant pain that he suffered after he jumped out of a truck …” [A] “I accept that”.
·T 3 – 44, ll 35 – 36: [Q] “That the jumping out of the truck would have been enough to produce symptomatology in this man?” [A] “Yes. I agree with that.”
·T 3 – 47, ll 38 – 39: [Q] “And the jump out of the truck was responsible for 50% of his condition? – That’s correct.
·T 3 – 47, ll 42 – 43: [Q] “And you were really only considering those two features of his presentation at that time, being degeneration of the pre-exiting disc protrusion and the jump out of a truck?” [A] “No, I was considering lifting batteries at the same time”.
·T 3 – 49, ll 43 – 44: “ … the fact remains that he stepped from a truck …”
·T 3 – 49, l 47 – T 3 – 50, l 5: “ … and the contribution of that single moment in time had when he stepped from the truck … So the sciatic component of the complaint didn’t occur seemingly until Mr Kelleher stepped from the truck.”
·T 3 – 50, ll 25 – 26: [Q] “… activities preceding … 21 August 2013 and then the jump from the truck separately. Is that correct? – [A] That’s correct.
·T 3 – 54, l 13: “ … the fact remains that he stepped from a truck, said that he developed sciatica …”
·T 3 - 54, l 40: “… but to the point his neuralgic pain that led him to surgery was from stepping from a truck that was 12 or 24 inches high …”
·T 3 – 55, l 5: “As did Mr Kelleher, when he stepped from the truck.”
·T 3 – 35, l 34 – 35: “ … there was a causation and a moment for Mr Kelleher which related to his stepping from the truck …”
MRI scan 4 September 2013
Returning to the injury suffered by the plaintiff after the event of 21 August 2013: An MRI scan of the plaintiff’s lumbar spine on 4 September 2013 revealed a left foraminal disc protrusion at L3/4 and a large left posterior disc protrusion at L4/5, likely compromising the left L5 nerve root. There was desiccation of the disc at L3/4. There were no abnormalities detected at L1/2, L2/3 or L5/S1.

Medical evidence from the plaintiff’s treating surgeon, Dr Laurence McEntee
Initial consultation, conservative treatment, surgery 11 November 2013

Dr McEntee is an orthopaedic surgeon, specialising in spinal surgery. When the plaintiff first saw him, on 17 September 2013, his symptoms were “severe”. [96] He was unable to stand upright because of severe muscle spasm and sciatic list to the left hand side.[97]
[96]    Exhibit 1, page A1.
[97]    Exhibit 1, page A3.
On 19 September 2013, in correspondence with WorkCover, Dr McEntee diagnosed, as the work related condition, an L4/5 left paracentral disc protrusion compressing the L5 nerve root. He said that it was likely that the plaintiff had some underlying lumbar spondylosis, and likely that the L4/5 disc protrusion was an aggravation of an underlying degenerative disease at that level.
Conservative treatments failed to provide the plaintiff with relief.
On 11 November 2013, Dr McEntee performed a discectomy on the plaintiff during which he removed the “fairly large disc protrusion that started centrally and extended more to the left-hand side”. (my emphasis)
He also removed the lamina above and below the level of the L4/L5 disc.[98] WorkCover funded this surgery.
[98] Transcript 2-39 – 2-40.
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]

[100] Exhibit 1, page A10.

Pain at about three/four weeks after surgery

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
Dr McEntee arranged for an MRI on 28 February 2014.
The report of the MRI[102] states that the “Indication” for it was –
Post L4/5 discectomy on the left side for left-sided sciatica. Now increasing symptoms in the L5 distribution. Exclude recurrent disc herniation on the right. (my emphasis)
[102] Exhibit 17.
In its “Findings” it states –
At the L4/5 level there is loss of disc signal and disc height. There is a broadbased central and left central posterior disc protrusion and there is evidence of a previous left-sided laminectomy. There is some peri-dural fibrosis within the left subarticular recess and laminectomy defect and the left L5 nerve root is mildly posteriorly displaced and appears compressed. The right L5 nerve root is also compressed within the right subarticular recess by the disc protrusion. There is mild to moderate right L4/5 foraminal narrowing due to the broadbased disc protrusion and facet joint degenerative change and loss of disc height. There is no significant left-sided L4/5 foraminal stenosis. (my emphasis)
The report interprets the relevant part of the scan in this way:
At the L4/5 level there has been a previous left-sided laminectomy and there is a residual/recurrent central and left central posterior disc protrusion which is narrowing both subarticular recesses and displacing and compressing both L5 nerve roots. There is also mild to moderate right L4/5 foraminal narrowing due to the disc protrusion, facet joint degenerative change and loss of disc height with potential irritation of the right L4 nerve root in the foramen. (my emphasis)
Thus, the MRI revealed a broadbased and left central posterior disc protrusion as well as compression of the right L5 nerve root by the disc protrusion.
The plaintiff’s ongoing symptoms and Dr McEntee’s attempts to resolve them
Dr McEntee wrote to WorkCover on 7 March 2014, informing it of the results of the MRI and seeking approval for a CT guided right L5 nerve root local anaesthetic and steroid injection to help reduce or resolve the plaintiff’s right leg symptoms.
Dr McEntee made a second request for approval for the injection in a letter to WorkCover dated 17 March 2014. In that letter, Dr McEntee referred to the recurrent disc protrusion at the L4/5 level, “with ongoing progression of the left L5 nerve root but also compression of both the right L4 and L5 nerve roots”.[103] (my emphasis)
[103] Exhibit 1, page A12.
A guided nerve block did not relieve the plaintiff’s symptoms.
On 29 May 2014, Dr McEntee sought approval from WorkCover for further surgery: a L4/5 laminectomy and a revision discectomy, to treat a “complication of his original surgery”.[104]
[104] Exhibit 1, page A15, also 2-41.
WorkCover would not fund the second operation on the basis that the symptoms it was intended to resolve related to the plaintiff’s underlying condition.
Dr McEntee did not agree that the plaintiff’s incapacity, related to “an underlying condition”.[105] He explained (in a letter dated 17 June 2014):[106]
If Mr Kelleher develops a recurrent disc herniation many months to years after the initial operation it could be considered related to the underlying condition. However, an early recurrent disc herniation in the first few weeks to months after the surgery more probably than not relates to the initial surgery rather than to the underlying ongoing degeneration of the disc. The annulus was incised to remove the disc protrusion at the time of the index surgery and it is well known that there is a rate of recurrent disc herniation post such a procedure which, in the literature, ranges anywhere between 5 and 15%. (my emphasis)
[105] Exhibit 1, page A16.
[106] Exhibit 1, page A16.
Cause of right-sided symptoms
Under cross-examination, Dr McEntee agreed that the scan of 28 February 2014 showed foraminal stenosis at L4/5, bilateral but more on the right, that had been there since (at least) the CT scan of 14 September 2011.[107] However in Dr McEntee’s opinion, the foraminal stenosis was not causing the plaintiff’s right-sided symptoms.
[107] Transcript 2-45.
He agreed that the right-sided symptoms could have been caused by any of the following possibilities: [108]
·    re-extrusion or continued extrusion of the nuclear material;
·    the normal progression of degenerative change;
·    surgery might have destabilised the right side of the disc and caused a pre-existing bulge to increase in pressure; or
·    disc space collapse.
[108] Transcript 2-47 – 2.48.
Dr McEntee considered the plaintiff’s right-sided pain to have been caused by the re-extrusion or continued extrusion of the nuclear material, which jammed and compressed the nerve root.[109]
[109] Transcript 2-48 – 2-49.
He disagreed with Dr Labrom’s opinion that the right-sided symptoms were caused by the further collapse of the disc.
Dr McEntee considered the plaintiff’s right-sided pain to be a consequence of, or related to, surgery. He said:[110]:
I disagree with Dr Labrom’s opinion that the onset of Mr Kelleher’s right-sided symptoms was unrelated to the surgery. As discussed above, the timing of the recurrent disc protrusion, very early after performance of discectomy, is an important consideration. I also consider that the nature of Mr Kelleher’s initial disc protrusion, being a central disc protrusion rather than a one-sided lateral protrusion, is more likely to produce right-sided sciatic symptoms following decompression of the left nerve root.
I have reviewed the repeat MRI that was performed subsequent to Mr Kelleher’s discectomy. The MRI demonstrates that the disc protrusion recurred over substantially the same area as the first protrusion, on both the left and right sides. In fact, it was again predominantly on the left side. However the nerve root on the left was not compressed because space had been cleared around it during the discectomy. The nerve root on the right was “jammed” and compressed by the disc protrusion because there was no space on the right side. For that reason, Mr Kelleher experienced right-sided sciatic symptoms as a result of the recurrent disc protrusion, but not left-sided sciatic symptoms. (my emphasis)
[110] In a conversation with the plaintiff’s counsel on 1 June 2018, which was reduced to a file note: Exhibit 18.
Dr McEntee’s file note of 4 June 2018 dealt further with Dr Labrom’s opinion.[111] Dr McEntee said there was no doubt that there was a recurrent protrusion after surgery (as well as a degree of post-surgical collapse in disc height), which was causing nerve compression of the right-sided traversing nerve at L5. There was no definite compression of the exiting nerve at L4. A recurrent herniation was a known complication of the surgery. If it had caused left-sided symptoms, there would be no doubt about its relationship with the surgery. The disc bulge was across the midline of the disc and over to the right. Within weeks of surgery it had extended on the right and started to compress the right nerve. He concluded, “I am not saying that I operated on the right side, but I operated on the left side and towards the midline, and in my opinion, that contributed to the bulge re-herniating towards the right when it recurred”.[112]
Expert medical evidence (plaintiff): Dr Scott Campbell
[111] Exhibit 19.
[112] Exhibit 19.
Report May 2015
Dr Campbell, a neurosurgeon, was called by the plaintiff.
He saw the plaintiff on 8 May 2015. The plaintiff was distressed at that time. His gait was slow and cautious and he walked with a limp. He sat awkwardly and in discomfort during the interview and had difficulty getting in and out of the examination chair.[113]
[113] Exhibit 1, C4.
The plaintiff’s history as recorded by Dr Campbell in his report dated 8 May 2015[114] included that he –[115]
·lifted stock weighing 8 – 40 kilograms, without a trolley, repetitively bending, reaching, twisting and lifting throughout his shift;
·took on extra physical duties from August 2013; and
·on 21 August 2013, “he stepped out of [the] cab of the work truck and dropped 50 cm and struck the ground firmly and noted immediate onset of lower back pain and left sciatica”.
[114] In his May 2015 report, Dr Campbell referred to the plaintiff’s 2011 injury as having been sustained whilst moving furniture (under “Past Medical History”): Exhibit 1, page C3. More accurately, it emerged a short time after he moved from NSW to Qld, which involved his moving his furniture and effects and a 10 hour car trip.
[115] Exhibit 1, C2.
Obviously, the weight of any expert’s opinion varies in accordance with the accuracy of the assumptions upon which it is based. Dr Campbell was provided with more detailed information at a later stage.
Dr Campbell described the plaintiff’s injury as having occurred “over a period of time from 03 January 2012 through to 21 August 2013”[116] including, therefore, as a contributor to the injury, the plaintiff’s manual handling of batteries during that time. He said: “It is likely the repetitive manual handling tasks performed at work in the months prior contributed to the injury”.[117]
[116] Exhibit 1, C2.
[117] Exhibit 1, C5.
Dr Campbell was of the view that the plaintiff was suffering a 13% whole person impairment: 60% of which was attributable to his pre-existing pathology (the large left L4/5 disc protrusion revealed by the CT scan in 2011) and 40% (5.2% whole person) to the “subject accident”.[118]
[118] Exhibit 1, C6.
In a letter dated 15 February 2016, Dr Campbell replied to a question from the plaintiff’s lawyers about whether the plaintiff would have “likely remained in his pre-accident medical condition indefinitely but for the work duties as described in the letter of instruction”. The letter of instruction is not in evidence, but Dr Campbell replied:[119]
Had the subject work injury not occurred it is likely that Mr Kelleher’s previous lower back complaint would have resulted in intermittent ongoing lower back pain over the years resulting in the occasional day or week off work. It is likely, however, that he would have been able to continue working and performing his activities of daily living had the subject work injury not occurred and if he was not further exposed to repetitive manual handling tasks. (my emphasis).
[119] Exhibit 1, C11.
Dr Campbell clarified in re-examination that he meant that the plaintiff would be able to work with “safe” manual handling practices. He said that the plaintiff was likely to have had ongoing problems, but they would have been less severe. He might have required the occasional day or week off work, but it was unlikely that he would have been taken out of the workforce.[120]
[120] Transcript 3-19, ll 24 – 32. This explanation was in similar terms to the opinion expressed in his written report of May 2018.
Report May 2016
In May 2016, the plaintiff’s lawyers provided Dr Campbell with more information about the plaintiff’s manual handling. It is of concern that the information provided to Dr Campbell overstated the difficulty of the plaintiff’s manual handling tasks.
Dr Campbell was told that the plaintiff lifted, on average 93 batteries a day, weighing between 10 and 65 kilograms.
Mr Byard’s analysis of a sample fortnight of the plaintiff’s work established that the plaintiff indeed lifted 93 batteries a day (on average) but the weight range for that sample period was between 1 kilogram and 52 kilograms – not between 10 and 65 kilograms.
Also, Dr Campbell should have been told that –[121]
·the average weight of the batteries was 13.8 kilograms;
·about 2% weighed between 28 and 52 kilograms;
·about 13.5% weighed more than 20 kilograms; and
·about 86.5% weighed 20 kilograms or less.
[121] Exhibit 2, page 33. Several of the following calculations are mine. Also, the total number of batteries lifted in that fortnight was 926, not 929 (as calculated by Mr Byard).
Dr Campbell was told that the batteries had to be carried “up to 30 metres up inclines, up/down stairs and lifted to above shoulder height or placed on low shelving”. In my view, it was misleading to present the facts in that way to Dr Campbell, implying that 30 metre distances, inclines and stairs were commonplace.

In dismissing the appeal, Boddice J, with whom McMurdo JA substantially agreed and Fraser JA agreed (also agreeing with McMurdo JA), emphasised the need to establish a causal connection between the conduct and the injury (footnotes omitted):
[90] To succeed, the appellant had to establish more than the mere existence of an association between the respondent’s breach of duty and the occurrence of her condition … What must be established is a causal connection between the conduct and the injury, even if it be that other causative factors may be in play. In that event, the question is not what was the most probable cause but whether the respondent’s negligence was a cause of the appellant’s condition.
[91] The primary Judge’s ultimate conclusion was that “the appropriate conclusion in the light of all the evidence is that, more likely than not, the conditions under which the plaintiff was working were a cause of the plantar fasciitis from which she suffered”. In reaching this conclusion the primary Judge noted that there was an absence of any significant explanation for the condition other than the plaintiff’s work.
[92] That the appellant developed the very condition which was foreseeable as a consequence of her duties of employment, in circumstances where the respondent had breached its duty of care to the [appellant], is strongly suggestive that the appellant’s personal injuries were caused by the respondent’s breach of duty in failing to undertake the risk assessment, which would have supported the use of anti-fatigue matting in the workplace.
[93] However, to succeed, the [appellant] had to establish on the balance of probabilities, that the measures the respondent failed to adopt would have prevented or minimised her injuries. The necessary satisfaction of this element of causation was described in Kuhl:
“To satisfy the element of causation … it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action … would have prevented or minimised the injuries the plaintiff sustained.”
…
[96] … the primary Judge’s finding that the appellant had not established that her condition was caused by the respondent’s breach of duty, as there was no evidence any measure taken by the respondent would probably have made a difference (in that the appellant would not have developed that condition), was supported by the evidence.
In the present case, it is not possible for me to find, as a matter of direct evidence or of inference, that had a certain precaution been taken, the plaintiff’s injuries would have been prevented or minimised.
The difficulties in the evidence (from the plaintiff’s perspective) may be illustrated by way of example. The plaintiff’s lawyers’ questions of Dr Campbell suggested that the plaintiff should not have been lifting batteries over 20 kilograms without assistance. That suggestion was consistent with Mr Byard’s evidence that, “provided a battery can remain close to the body during handling”, the maximum recommended weight for a two handed lift was between 10 and 20 kilograms.[268]
[268] Exhibit 2, page 56.
Mr Byard’s report set out the proportions of the plaintiff’s labour which included loads over 20 kilograms.[269] And the plaintiff gave some evidence (albeit not sufficiently detailed) about how he lifted some of the batteries and the circumstances in which a trolley or a forklift or human assistance were available. Yet none of that information was provided to Dr Campbell so as to provide him with a sufficient factual basis upon which to offer an opinion about the features of the plaintiff’s manual handling which caused his injury or the precautions which might have been taken to reduce the risk of it.
[269] Exhibit 2, page 56.
As in Prasad there was no evidence that any measure taken by the defendant would probably have made a difference.
Causation – exiting the truck
The plaintiff contended that, had the defendant implemented and enforced a proper system of training and instruction about exiting the Isuzu maintaining three points of contact and in reverse, then the plaintiff would have exited backwards, lowering himself to the ground with his right foot on the right step.
The plaintiff’s counsel did not ask the plaintiff directly whether he would have exited the truck in this way had he been instructed to do so.
I note the plaintiff’s own comments about the difficulty for him in exiting that way. They incorporated a complaint about the design of the truck:[270]
… to reverse out, it’d almost be like a – a free falling type pendulum swing sort of thing because you actually didn’t have anything to hold on with your left arm. So you’re basically – your body’s hanging by your right arm which can actually sort of [lead] to a pendulum type effect. And not only that, I couldn’t actually see the – the step from the – from the driver’s seat. So I would have been feeling around while in reverse to try and climb out of the – of the truck.
[270] Transcript 1 – 53, ll 25 – 35.
He said that, for those reasons, he did not reverse out of the truck. He also explained that he likened the truck to the defendant’s van “both of the cabins weren’t very high at all” [271] – implying that he saw no need for a reversing exit.
[271] Transcript 1- 53, ll 40 – 44.
One inference that may be drawn from the plaintiff’s testimony is that he would have been resistant to such an exit (as were many drivers, as Mr McDougall explained).
Against the background of those answers, the plaintiff’s counsel should have asked the relevant question. It is, in my view, unsatisfactory that I am left to draw inferences about it.
I was urged by the defendant to conclude that the plaintiff would not have followed training or instruction about exiting the Isuzu in reverse. The defendant submitted that there was no reason to think that the plaintiff would have paid any more attention to his employer’s instructions than to Mr Wetherill’s.
I have found that Mr Wetherill did instruct the plaintiff in a reversing exit from the Nissan truck in which he was instructed. I am, however, prepared to accept that the plaintiff might not have understood the requirement of a reversing exit to apply to the Isuzu, which was a smaller truck. I am not prepared to find that he would have deliberately ‘disobeyed’ Mr Wetherill. I have reached that conclusion bearing in mind my finding about the plaintiff’s credit.
The plaintiff’s previous work history was good. It included long periods of employment. Overall the evidence demonstrated that the plaintiff valued employment. I infer that he would do nothing to deliberately put his employment in jeopardy.
I note the plaintiff’s desire to be “upfront” with Mr Bailey about his back condition.[272] I infer that the plaintiff was aware that he had some vulnerability in his employment because of his back. I infer that if he had been told of the risk of injury inherent in his method of exiting the truck he would not have used that method. I find that the plaintiff received no safety induction in any aspect of his work from the defendant.
[272] Transcript 1 – 43, l 15.
I find that the plaintiff would probably have followed a work instruction given to him.
I find that if the plaintiff had used the three points of contact, reversing method of exiting the truck, he would not have dropped 500mm to the ground and been exposed to large compression forces upon his spine. I find it more probable that not that he would not have jarred his torso and suffered the pain symptoms he did on 21 August 2013.
Causation - the right-sided symptoms which emerged after surgery
There is no question that the plaintiff’s exit from the truck on 21 August 2013 aggravated his degenerative condition to the point where he suffered such sciatic pain that he required a discectomy to relieve it.
As explained above, that surgery was successful in relieving the plaintiff’s left-sided pain, but within weeks of it, painful right-sided symptoms emerged.
The plaintiff contended that those right-sided symptoms were a result of his surgery and a foreseeable consequence of the original injury, for which the defendant was liable.
The defendant submitted that the right-sided symptoms were not compensable, essentially because they were the product of degeneration of the disc, which was to be expected having regard to the plaintiff’s pre-existing pathology.
I found this aspect of the case very difficult.
There were problems with the state of the evidence. Neither Dr Campbell nor Dr Labrom were provided with a complete account of the relevant facts. For example, neither was told that the plaintiff had – as he said – “always” an underlying degree of pain, nor that he needed to lie down at work on occasions to deal with the pain.[273]
[273] Transcript 1 – 79, ll 1 – 10.
There were problems with Dr Labrom’s understanding of the plaintiff’s history and other essential facts as discussed above.
There were problems involving Dr Labrom’s evidence, emerging late in the piece, about the L5 nerve distribution.
There were notes in the medical records querying whether the plaintiff’s thigh pain was related to the L5 disc and observing that an MRI in November 2016 did not reveal a “structural explanation” for the plaintiff’s right-sided symptoms, yet neither counsel dealt with those matters.
The plaintiff’s expert, Dr Campbell, was not asked to explain the plaintiff’s current symptoms, which do not include “true sciatica”, by reference to the injury caused when the plaintiff jumped from the truck, or the surgery.
While Dr Labrom appeared to be the most academically qualified of the experts, he did not have the first-hand experience of the emergence of opposite side symptoms after discectomy that Dr McEntee and Dr Campbell had.
Dr Labrom was dogmatic in his opinions. Dr Campbell and Dr McEntee were not. Nevertheless, I took care not to overvalue Dr Labrom’s inflexibility having regard to his expertise.
In submissions, the defendant referred to Dr Labrom’s evidence that the symptoms were not typical of L5 nerve pain and suggested that I ought to conclude that the reason why the plaintiff chose not to re-call Dr McEntee or Dr Campbell to respond to that proposition was that “they could not answer that point”. However, it was revealed during oral submissions that the plaintiff’s counsel (incorrectly) did not understand it to be her responsibility to re-call her doctors.[274] In those circumstances I am not prepared to draw the inference that the defendant invited me to draw.
[274] Transcript 5 – 29, ll 1 – 5.
The lateness of this aspect of Dr Labrom’s opinion detracts from it. If it was as telling as Dr Labrom suggested, it was reasonable to expect it to be made as one of his first points – not one of his last. This is particularly so having regard to the documentary evidence of Dr McEntee and Dr Campbell, of which Dr Labrom was aware, which plainly linked the plaintiff’s right-sided symptoms with the L5 nerve distribution.[275]
[275] For example, the stated “indication” for an MRI post-surgery (requested by Dr McEntee) was: “Post L4/5 discectomy on the left side for left-sided sciatica. Now increasing symptoms in the L5 distribution. Exclude recurrent disc herniation on the right.” (my emphasis)
However, health professionals, with no interest one way or another in this litigation, queried the source of the plaintiff’s right-sided symptoms at the end of 2016 and could find no structural explanation for them.
Also relevant to this issue was Dr Campbell’s observation, in his May 2018 report, that although one of the reasons why the plaintiff may have experienced right-sided sciatica after his surgery was that the disc protrusion had eventually irritated the right L5 nerve root, that was not supported by the MRI findings. Under cross-examination he said there was no obvious new right-sided protrusion to support that theory. He added that there was “a bit of a bulge there”, and surgery might have “subtly tipped it over the edge”.[276]
[276] Transcript 3 – 17, ll 30 – 40.
The plaintiff suggested that Dr Labrom’s evidence was “problematic”, as I understood the submissions, in its entirety.
The plaintiff submitted that Dr Labrom had an incorrect understanding of the event of 21 August 2013 (thereby detracting from his opinion). I do not accept that submission. As demonstrated, while Dr Labrom’s language varied – so did Dr Campbell’s. Importantly, Dr Labrom’s diary note from April 2018 referred, accurately, to the plaintiff’s jump from the Isuzu.
I agree with the plaintiff that several aspects of Dr Labrom’s opinion reflected his misunderstanding or misinterpretation of relevant facts and the plaintiff’s history – detracting from the weight of his evidence overall. I have discussed Dr Labrom’s misunderstandings above. While he stated, with confidence, that his opinion, based on the corrected facts, did not change, his misunderstanding was corrected during his testimony, and he reconsidered his opinion ‘on the run’ during his cross-examination.[277]
[277] He gave his evidence by telephone as all the doctors did.
I agree with the plaintiff’s submission that Dr Labrom introduced irrelevant facts into his evidence about the plaintiff’s manual handling duties which detracted from the weight of his evidence.
I also agree with the plaintiff’s submission that there were inconsistencies in Dr Labrom’s evidence about whether the L4/5 disc had or had not re-herniated.
The post-surgery MRI found that –
… The right L5 nerve root is also compressed within the right subarticular recess by the disc protrusion. There is mild to moderate right L4/5 foraminal narrowing due to the broadbased disc protrusion and facet joint degenerative change and loss of disc height. There is no significant left-sided L4/5 foraminal stenosis
Dr McEntee said that the cause of the right-sided symptoms was a recurrent disc herniation. I will not repeat the detail of his explanation for that opinion but he was, in my view, in the advantageous position of being the plaintiff’s surgeon.
In Dr Labrom’s opinion, the plaintiff’s right-sided symptoms were caused by foraminal stenosis on the right side at L4/5 caused by reduction in the height of the disc – as part of a degenerative cascade.
I found Dr Campbell’s explanations for his opinion that it was likely that the plaintiff’s right-sided symptoms were the result of surgery persuasive. For convenience, I will repeat them here. They included that –
·    the pre-operative MRI (4 September 2013) showed degenerative changes at several levels of the plaintiff’s spine, with loss of disc height at L3/4, L4/5 and L5/S1; the post-operative MRI (28 February 2014) showed no significant loss of disc height at L3/4 and L5/S1 but marked loss of disc height at L4/5, which was consistent with the surgery;
·    the rapid onset of the right-sided symptoms was not consistent with symptoms caused by degenerative change, which tended to have a more gradual onset;
·    the timing of the onset – close to surgery, and before the plaintiff had resumed physical activities, suggested that the symptoms were not the product of degenerative change; and
·    although the plaintiff had degeneration in his lumbar spine, that did not necessary correlate with pain.
I have considered Dr Labrom’s opinion that coincidence explained the timing of the onset of right-sided symptoms, so soon after the discectomy.
On the question of coincidence, I prefer the evidence of Dr Campbell and Dr McEntee to the evidence of Dr Labrom.
I find that it is more probable than not that the plaintiff’s right-sided symptoms within weeks of surgery were a result of his surgery.
However, I find that it is more probable than not that the plaintiff’s pre-existing degenerative condition, which no doctor suggested was insignificant, continued to deteriorate over time in the manner described by Dr Labrom (the degenerative cascade), causing pain, including right-sided pain, and other symptoms.
I find, on the balance of probabilities, that –
·    the right-sided symptoms experienced by the plaintiff after surgery were a consequence of the surgery – but it cannot be overlooked that they occurred in a man with a pre-existing degenerative condition which may have caused pain on the right side independently of surgery;
·    the plaintiff’s spine continued to degenerate over time, and
·    the plaintiff’s pre-existing degenerative condition has contributed, in a significant way, to the plaintiff’s ongoing right-sided and other pain symptoms.
Damage to right L5 nerve root revealed upon EMG testing
As noted above, I asked for further submissions in response to my observation that Dr McEntee’s evidence included a reference to damage to the right L5 nerve root revealed upon EMG testing. Having considered those submissions (for which I am grateful) I have determined to take a cautious approach. In the absence of evidence from the experts about it, I have drawn no inference one way or the other from that note of damage.

Assessment of damage

In assessing damages, I have taken into account the principles in Watts v Rake[278] and Malec v JC Hutton Pty Ltd,[279] to which I was referred.
[278] (1960) 108 CLR 158.
[279] (1990) 169 CLR 638.
The plaintiff submitted that a majority of the plaintiff’s current symptoms did not relate to the plaintiff’s pre-existing condition, even though the plaintiff’s doctor was of the opinion that 60 per cent of the plaintiff’s current impairment related to his pre-existing condition.
The plaintiff referred to Dr Campbell’s opinion that he “had a good prognosis though was likely to experience intermittent exacerbations, and was likely to be able to continue working if he was not exposed to excessive manual handling requirements, with an occasional day or week off”. The plaintiff continued, in submissions, “That prognosis stands in stark contrast to the position the plaintiff is now in, as a result of the defendant’s negligence”.[280]
[280] Plaintiff’s submissions, paragraph 137.
Dr Campbell’s opinion, as summarised by the plaintiff in submissions, is drawn from the answers he gave to questions asked of him in his report of 11 May 2018. It does not take into account his answer in cross-examination that, having seen the CT scan of 14 September 2011, heavy manual work was contraindicated for the plaintiff. Dr Campbell said that the vast majority of workers, with a back condition similar to the plaintiff’s (as at September 2011), who returned to heavy manual work were likely to fail. He advised his patients to exercise other options if they had them.
Nor was Dr Campbell referred to the MRIs from 2016 and 2017 and asked to explain them in light of that answer.
I find that the plaintiff was himself aware that he was not well-suited to battery delivery work, which is why he was “up front” with Mr Bailey about his back condition. He showed a remarkable capacity to do that work from January 2012 until August 2013, but recognised himself, in June 2013, that he had limited longevity in the job.
I appreciate that the position is complicated by the notion that the manual handling that the plaintiff was required to do was “excessive”. However, the plaintiff’s case was not presented in a way which allowed me to determine whether or not it was because of the “excessive” manual handling tasks that the plaintiff was unable to continue in the work.
In the assessment of damages, I have proceeded on the following basis:
·    The plaintiff’s pre-existing condition was not static – it continued to worsen over time;
·    While he worked for the defendant, the plaintiff showed a remarkable capacity to deal with the labour of his workload and to put up with his pain and left-sided sciatica – relieving it with the use of his inversion table as required from time to time;
·    Until 21 August 2013, his pain and left-sided sciatica were symptoms of his pre-existing degenerative condition, which emerged in the context of his doing manual work which was contraindicated for him;
·    By June 2013, the plaintiff realised that he had limited longevity in his employment with the defendant and that he was not suited, because of his back condition, to heavy physical work;
·    On 21 August 2013, the plaintiff’s jump from the truck aggravated his pre-existing condition at L4/5, resulting in left-sided pain which was so severe as to require surgery to relieve it;
·    The surgery, which was conducted on 11 November 2013, successfully relieved the plaintiff’s left sided symptoms;
·    Three or four weeks after surgery, right sided symptoms emerged;
·    Those symptoms were related to the surgery but the matter is complicated by the plaintiff’s pre-existing condition;
·    The plaintiff’s pre-existing degenerative condition has also contributed to his pain symptoms over the years since his surgery;
·    The plaintiff’s physical condition has caused him to suffer mentally and the symptoms of his mental illness, including irritability around people and a reduced ability to concentrate, have affected his earning capacity;
·    His commendable dedication to the Uplift program has relieved some of his symptoms. He no longer has true sciatica and he no longer feels that he requires surgery.
General damages

General damages are to be assessed by reference to the Workers’ Compensation and Rehabilitation Act 2003 and Workers’ Compensation and Rehabilitation Regulation 2003.
I have taken into account the provisions of schedule 8 of the Regulation including those which concern multiple injuries and a pre-existing condition, in particular regulations 3(2), 7 and 9 –
3   Multiple injuries
(2)To reflect the level of adverse impact of multiple injuries on an injured worker, a court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only.
Note –
This section acknowledges that –
·the effects of multiple injuries commonly overlap, with each injury contributing to the overall level of adverse impact on the injured worker; and
·if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total ISV would generally be too high.
7   Aggravation of pre-existing condition
(1)This section applies if an injured worker has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV.
(2)In considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.
9Court may have regard to other matters
In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case.
Examples of other matters –
·     the injured worker’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life
·     the effects of a pre-existing condition of the injured worker
·     difficulties in life likely to have emerged for the injured worker whether or not the injury happened
·     in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 9 in relation to, an injury other than the dominant injury of the multiple injuries
In this case there is a physical and a mental injury. The plaintiff’s physical injuries and loss of function were the stimulus for his mental disorder. The physical injury aggravated the symptoms of his pre-existing condition to somewhat more than a “slight” extent (which was the defendant’s contention).
The event of 21 August 2013 and the discectomy aggravated the plaintiff’s pre-existing disc protrusion at L4/5 to the extent to which it produced pain, including sciatic pain, and restricted the plaintiff’s mobility. However, his pre-existing condition has also contributed to his pain and other symptoms over the years.
After his participation in the Uplift program in 2017, the plaintiff was able to cease Panadeine Forte for his pain. He no longer required a stick to walk, but his gait was stiff legged. The plaintiff has persisting back pain and right buttock pain. His symptoms are aggravated by prolonged sitting and heavy lifting or bending. Dr Campbell noted that there was (now) no true sciatica. The plaintiff’s physical activities were limited to Tai Chi and swimming.
Depression and anxiety were present by at least June 2014. The plaintiff’s general practitioner referred him to a psychologist and a psychiatrist. His treating psychiatrist diagnosed him with a major depressive disorder, with comorbid anxiety symptoms, secondary to his physical condition.
Dr Foxcroft diagnosed a major depressive disorder, consequent upon a chronic adjustment disorder with depressed mood. In February 2015, he assessed the plaintiff (applying PIRS) as having a whole person impairment of 15%. Upon re-examination in January 2018, he found the plaintiff to be a little more accepting of his physical condition, but with active symptoms of his depressive disorder: irritability; difficulty concentrating; and anxiety about his future. Dr Foxcroft assessed his whole person impairment at 13%.
Dr Chalk assessed the plaintiff’s impairment in 2015 and in 2018 at 5% and 4%, respectively.
The plaintiff’s mental state was compromised by his alcohol and cannabis use – which seemed to have tapered by 2018.
I consider the plaintiff to have suffered a “moderate thoracic or lumbar spine injury – soft tissue injury” (ISV range 5 to 10) and a “moderate mental disorder” (ISV 2 to 10).
Taking into account the contribution of the plaintiff’s pre-existing injury to his current disability, and the adverse effect of both (overlapping) injuries on him, I assess the ISV at 10, which produces an assessment of $14,450 for general damages.
Past economic loss
The plaintiff’s calculation of past economic loss assumes the plaintiff was in full employment from August 2013 until the present. It fails to take into account that the plaintiff was not well suited at all to the work he was undertaking, as he recognised himself. It also fails to take into account that the plaintiff had obtained his work with the defendant through a family connection.
The full extent of the plaintiff’s condition while he was working for the defendant was not disclosed to the doctors. They were not told that the plaintiff had an ever present underlying degree of pain and that he lay down on pallets at work from time to time. Dr Campbell was not asked to comment on the plaintiff’s 2016 and 2017 MRIs.
The plaintiff’s pre-existing condition has contributed to his current symptoms, including prior to this trial.
It is likely that the plaintiff would have remained with the defendant, were it not for his injury, until about the end of June 2014. Thereafter, though, there was no guarantee of a place for him as an apprentice locksmith (indeed, only very limited evidence was led about this option) and no guarantee of continuous employment.
On the other hand, he had a good work history, held onto jobs he enjoyed and demonstrated a willingness to try any work and to be re-trained.
I consider it appropriate to award past economic loss on the basis that the plaintiff was likely to have been able to earn about the same amount per week as he earned with the defendant from 1 July 2015 until October 2018, but that he was not likely to have been in continuous employment, either because of the job market, (an “employers’ market”, with overqualified job seekers),[281] his age, his limited skills, time off for retraining or his pre-existing condition.
[281] Exhibit 4, page 10.
I have also taken into account the other vicissitudes of life. Accordingly, I award past economic loss on the basis that the plaintiff was likely to have been in work 70% of the time (or a period of 250 weeks, including with the defendant to 30 June 2014), less 10% for vicissitudes – $126,000.
Past loss of superannuation
At the agreed rate of 9.25% – $11,655.
Interest on past economic loss
Past economic loss ($126,000) exceeds the WorkCover payments ($52,748.35) and CentreLink benefits ($38,880) by $34,371.65. Interest on that sum at 2.66% per annum for 4.8 years is $4388.57.
Future economic loss
The focus under this head is upon the loss of the plaintiff’s earning capacity.
The defendant did not challenge the plaintiff’s methodology. It simply submitted that no allowance should be made for the plaintiff’s future economic loss.
The plaintiff was born on 9 May 1973. In May of 2018, he turned 45. MRIs conducted in 2016 show the, not unexpected, continuing degeneration of his spine. In October 2017, he reported pins and needles in his shoulder and arm, also reflecting vulnerability of the cervical spine – although I acknowledge that those symptoms resolved with treatment.
An assumption of a net income of $800 per week, with the plaintiff in continuous employment for another 19 years, discounted on the 5% tables and discounted by 12% for contingencies, leads to $454,784.
Mr Johanson described the job market as an employers’ marker with overqualified job seekers competing for available jobs.[282] The plaintiff’s prospects lay in the closed job market, rather than in the open market.
[282] Exhibit 4.
It is reasonable to assume that, into the future, the plaintiff’s pre-existing condition will impact adversely upon his work prospects. I have already made the point about the inadequate basis for Dr Campbell’s opinion that the plaintiff would have been able to work in suitable (manual) employment until retirement age. Also, Dr Campbell was not referred to the MRIs of 2016 and asked for his opinion about the state of the plaintiff’s pre-existing condition having regard to them.
However, I acknowledge the plaintiff’s previous good work history, the value he places upon employment, his willingness to try anything and his willingness to train.
The plaintiff’s residual earning capacity is limited. He is not suited, or trained, for occupations which might accommodate his physical limitations. Ms Stephenson was of the opinion that his time out of the workforce, the fact of his injury and its severity, his limp and his slow gait would be off-putting to potential employers. Other barriers to his employment were his other physical and movement limitations, irritability and a poor concentration span. Her opinion was not challenged. [283]
[283] Transcript 3 – 34, ll 10 – 15.
I consider it appropriate to discount the plaintiff’s damages for future economic loss by a further 60%, to take account of the challenging labour market and the plaintiff’s not insignificant pre-existing condition and contingencies associated with it.
I award $181,913.60 for future economic loss.
Future loss of superannuation
At the agree rate of 11.2% – $20,374.
Special damages
The following special damages are agreed:
·Workcover expenditure: $33,881.56;
·Fox v Wood: $6,587.00.[284]
[284] Based on the defendant’s submissions and the amended statement of claim: the plaintiff’s submissions claim it at $6,509.
The parties disagree about the Medicare refund, but there is no evidential basis upon which I am able to evaluate the defendant’s challenge. I therefore award it in full ($6,677.15).
For the same reason, I award the amount claimed by the plaintiff for travel, pharmacy and other expenses ($3,437.11).
Future expenses
There was disagreement about future expenses. Dr Chalk did not consider there to be much benefit in the plaintiff continuing to see a psychologist “beyond the life of his claim” and thought the plaintiff’s anti-depressant medication could be tempered within six to nine months of the resolution of the litigation.[285]
[285] Exhibit 1, E37.
Dr Foxcroft thought the plaintiff would require another 20 sessions of counselling and anti-depressant medication indefinitely. I note that when Dr Foxcroft offered this opinion (in January 2018) the plaintiff was receiving psychological treatment under a Mental Health Care Plan.
On the evidence, this litigation has taken its toll on the plaintiff, who described himself to Dr Chalk in January of this year as a “battered soccer ball”.[286]
[286] Exhibit 1, E36.
It is reasonable to expect that the resolution of this litigation will relieve some of the plaintiff’s emotional strain and reasonable to expect there to be some improvement in mood. I will award future expenses to cover future psychological treatment and medication and other future expenses in the sum of $5,000.
Summary of assessments
In summary –

General damages

14,450

Past economic loss

126,000

Past loss of superannuation

11,655

Interest on past economic loss

4,388.57

Future economic loss

181,913.60

Future loss of superannuation

20,374

Special damages

50,582.82

Future expenses

5,000

Sub total

414,363.99

Less WorkCover Queensland Refund

93,498.20

TOTAL

$320, 865.79

Orders

Judgment for the plaintiff in the sum of $320,865.79.
As proposed by the parties, written submissions on costs within 14 days, if agreement cannot be reached sooner.

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

General damages	14,450
Past economic loss	126,000
Past loss of superannuation	11,655
Interest on past economic loss	4,388.57
Future economic loss	181,913.60
Future loss of superannuation	20,374
Special damages	50,582.82
Future expenses	5,000
Sub total	414,363.99
Less WorkCover Queensland Refund	93,498.20
TOTAL	$320, 865.79