Muller v Klosed Pty Ltd
[2021] VSC 360
•23 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
COMMON LAW DIVISION
S ECI 2019 01607
| ANTHONY PAUL MULLER | Plaintiff |
| v | |
| KLOSED PTY LTD (ACN 088 405 289) | First Defendant |
| and | |
| TNT AUSTRALIA PTY LTD (ACN 000 495 269) | Second Defendant |
| REDSTAR TRANSPORT OPERATIONS PTY LTD (IN LIQ) (ACN 129 931 255) | Third Defendant |
| ZURICH AUSTRALIAN INSURANCE LIMITED (ABN 13 000 292 640) | Fourth Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Wangaratta |
DATE OF HEARING: | 19, 20, 24–28 May 2021 |
DATE OF JUDGMENT: | 23 June 2021 |
CASE MAY BE CITED AS: | Muller v Klosed Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 360 |
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NEGLIGENCE – Workplace injury – Truck driver injured when tautliner trailer gate fell striking him on shoulder – Gate suspended from chain and bolt attached to set of rollers – Bolt fractured – History of gate sticking and being difficult to move not reported, found on safety inspection or remedied – Most likely cause of failure of the bolt was wear leading to the final fracture – Liability of employer – Liability of owner of trailer – Liability of company engaged to perform safety inspections, servicing and repairs on trailers – Contribution between defendants – Assessment of damages – Zealley v Liquorland (Aust) Pty Ltd [2015] VSC 62 – Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 665 – Wrongs Act 1958 (Vic), s 24(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | T S Monti QC and S J Carson | Arnold Dallas McPherson Lawyers |
| For the First Defendant | P B Jens QC and M K Clarke | Lander & Rogers |
| For the Second Defendant | D McWilliams and L Burke | Terrill & Holmes (agents for NSW solicitors RGSLAW) |
| For the Third and Fourth Defendants | A T Strahan QC and S R Weir | Colin Biggers & Paisley Lawyers |
HIS HONOUR:
The plaintiff, Mr Muller, worked for the first defendant, Klosed Pty Ltd (Klosed) driving a prime mover towing two tautliner trailers. In the course of his work Mr Muller was required to move large steel gates on the side of each trailer so that they could be unloaded. Each gate was suspended from a chain and bolt attached to a set of rollers which ran along a track at the top of that side of the trailer. Mr Muller said there were no issues with the gates, which rolled along the tracks properly, apart from the front passenger side gate of one trailer which would snag and required more force to move. In March 2015 Mr Muller was moving that gate when the attaching bolt fractured and the gate fell, striking and injuring him (the incident).
Klosed owned the prime mover which Mr Muller drove. The second defendant, TNT Australia Pty Ltd (TNT), owned the tautliner trailers, and was responsible for delivery of freight transported by Mr Muller. The third defendant, Redstar Transport Operations Pty Ltd (Redstar), was engaged by TNT to perform safety inspections, servicing and necessary repairs on the trailers. Mr Muller alleged there was negligence by each of the first three defendants which was a cause of the gate falling on him and his injuries.
On the fourth day of trial Mr Muller’s claim against Klosed was dismissed by consent. At the same time TNT admitted breach of its duty to Mr Muller. Before the trial concluded pecuniary damages were agreed at $190,000 net of reduction required by s 134AB(25) of the Accident Compensation Act 1985 (Vic). That left for determination Mr Muller’s claim against Redstar, contribution claims between defendants, and assessment of pain and suffering damages.
The cause of the bolt fracturing was a significant issue at trial. Mr Muller gave evidence that the bolt had been re-welded a number of times, which he said caused it to become brittle and to crack. Dr Casey and Mr Gartner, experts called by TNT and Redstar respectively, disagreed and said the heat-affected zone caused by welding would not extend to the point where the bolt fractured. In Dr Casey’s opinion it was most likely the bolt was worn and weakened from rubbing against the edge of the track, which led to the final fracture when Mr Muller was injured. Relying on Dr Casey’s opinion, TNT argued Redstar should have replaced the bolt before the incident because of the history of difficulty moving the gate, and wear to the bolt which it should have found on inspection. Mr Gartner disagreed with Dr Casey, and said the cause of the fracture was probably a fatigue crack which initiated at the base of a thread on the bolt, which would not have been seen on visual inspection. Redstar argued the evidence did not establish that reasonable safety inspections, servicing and repair of TNT trailers should have led to replacement of the bolt before the incident. TNT and Redstar each argued that, because of the non-delegable nature of the duty which it owed, Klosed was liable to contribute to damages paid to Mr Muller. In response Klosed submitted that the circumstances of which it should reasonably have been aware did not require that it take any precaution against the risk of harm to Mr Muller, and alternatively any precautions which it should have taken were unlikely to have prevented the eventuation of harm.
Redstar is in liquidation. Zurich Australian Insurance Ltd was joined as fourth defendant because it initially denied that it was liable to indemnify Redstar under a contract of insurance. After it was joined, Zurich conceded the issue of indemnity and took no part in the trial.
Background
Mr Muller was born in 1956. He left school after completing Form 3, then worked in a meatworks before commencing but not completing an apprenticeship as a welder. When he was 19, Mr Muller obtained his truck licence, and from that time usually worked as a driver.
In about early 2014 Mr Muller was approached by his friend, Daryl Sexton, to drive a prime mover towing TNT tautliner trailers between Melbourne and Sydney to transport goods, usually Toyota car parts. Klosed was Mr Sexton’s company.
Mr Sexton gave Mr Muller a credit card to use for fuel, repairs, maintenance and other expenses, and told him the truck was his responsibility unless something was extremely wrong, when he should get in touch. Mr Muller said Mr Sexton was very particular and safety conscious, and although the prime mover was not new, everything was serviced and working properly, the tyres and brakes were good, the oil was right, and it was immaculate inside and out. He said Mr Sexton told him to turn up at the TNT depot with the prime mover and do whatever they instructed. He said he did not get any instruction from Mr Sexton about what he was to do if there was something wrong with a trailer, other than to take any safety problems or issues up with TNT. Mr Sexton did not check in with him to see if he had any issues.
Each Monday Mr Muller drove the prime mover to the TNT premises in Laverton, where he attached two tautliner trailers, that he said were already loaded, with the side gates in position and strapped down, and the curtains closed. Occasionally he would help buckle down the curtains, but usually this was done by the TNT workers. Mr Muller explained that it was his job as driver to attach the prime mover to the trailers, hook up hoses, check the lights and tyres, and perform a tug test to ensure the trailers were properly attached.
Mr Muller left the Laverton premises at about 6pm and drove to Sydney, arriving outside a premises at Caringbah at about 3am. He drove into the premises when it opened at 6am, and was then required to prepare the trailers to be unloaded by a forklift driver, which involved unbuckling and opening the curtains on the passenger side of both trailers, undoing the straps in place over the side gates during the journey, and moving the gates to allow access to the load.
The purpose of the side gates is to restrain the load on the trailer. The gates are open metal barriers with internal metal struts. When in place the bottom frame of a gate sat flat on the side of the trailer deck and was held in place by protrusions, called spades, at each corner which fitted into holes in the deck. In the centre at the top the gate was attached to a metal chain welded to a bolt, the top of which was attached to a set of rollers which ran on a track fixed to the outer edge of the trailer roof.
To move a gate it was necessary first to lift it until the spades were clear of the holes in the deck. The gate was then suspended from the track by the bolt and chain attachment, and could be moved by pulling or pushing so that the rollers ran along the track.
In the time he worked for Klosed, Mr Muller towed two sets of trailers. At the end of each week he met with another driver between Melbourne and Sydney, and they would swap trailers for the following week. The incident in which Mr Muller was injured involved the A trailer which he towed every second week (the A trailer).
Mr Muller said that the A trailer was old, probably dating from 1998. He said the gates were made of heavy steel, rather than aluminium or light steel, and were probably the original gates on the trailer. Mr Muller estimated the front gates weighed about 30 to 35 kilograms. He said there were no issues with any of the gates on the trailers he used, which rolled along the track properly, apart from the front passenger gate of the A trailer (the gate), which he said was ‘notchy’, would snag and never rolled free. I asked Mr Muller:
When you say ‘notchy’ what do you mean? Tell me what you mean?---Like, I call that notchy. Instead of just going – rolling along that nice flat surface it – it – it – it would jam. That’s – it was notchy and you’d have to – have to reef it and that’s what I did that day and when I reefed and got the end I – unbeknownst to me, it sheered [sic] off and came here.
Mr Muller indicated that it felt as if the track on which the gate ran was uneven and said he thought it was worn. He said all the gates were noisy when you moved them, but he noticed the gate would go ‘clunk clunk’, and that you could hear metal which he thought was probably the bolt hitting against the track. He said he had trouble with the gate ever since he started work at Klosed.
The gates at the front of the A trailer were over 2 metres tall and over 1.5 metres wide. Dr Casey measured the front deck of the A trailer at about 1.2 metres from the ground, and the distance from the deck to the track at the top of the trailer at 2.8 metres.
Mr Muller said that after the trailers were unloaded at Caringbah, he drove the prime mover a short distance from the yard where he slept for the day, before returning at 6pm to collect the trailers for the return journey to Melbourne. When he collected the trailers they were already loaded, with the gates in position and the curtains closed and buckled down. Mr Muller attached the prime mover to the trailers then drove to Melbourne, arriving at Altona at about 3am, where he unhitched the trailers, and played no role in the unloading process. He slept during the day, before returning to TNT Laverton at about 6pm to collect the loaded trailers and repeat his journey to Sydney.
The incident happened at Caringbah when Mr Muller moved the gate in preparation for the forklift driver unloading the A trailer. Mr Muller said the gate snagged, he forcefully moved it and when the gate got to the end of the track it sheared off and fell on him. Mr Muller said he twisted to the left to avoid the gate striking him, but it hit his left shoulder, and he fell backwards to the ground.
The bolt
Mr Muller examined the bolt and chain attachment to determine why the gate had fallen on him. He took photographs of the bolt and chain, and the remnant upper end of the bolt which remained in position attached to the rollers in the track, which are reproduced below.
Photograph – Bolt and chain
Photograph – Remnant upper end of bolt which remained in position attached to rollers in the track
Mr Muller is the only witness to have seen the bolt and chain after the incident. The evidence of other witnesses who commented on features of the bolt and chain is based on the photographs taken by Mr Muller. Neither Dr Casey nor Mr Gartner claimed expertise in examination and interpretation of the photographs.
There were two features of the bolt and chain which were of particular potential relevance. The first was the fracture surface, which is the near end of the bolt in the first photograph, that Mr Muller said was ‘pretty close to flat’. Dr Casey and Mr Gartner agreed there were two facets to the fracture surface. Dr Casey said in his first report the facets appeared to him to be nearly 90 degrees one to another. Mr Gartner disagreed, and was of the view that the angle between the two was far less than 90 degrees.
Both Dr Casey and Mr Gartner described the grey coloured facet at the top right of the bolt end as transverse. I accept that description, which is consistent with the evidence of Mr Muller and my observation of the photograph.
A fracture facet at 90 degrees to transverse would be longitudinal along the bolt. It is clear from the photograph that the silver facet at the bottom left of the bolt end is not close to longitudinal. I conclude, consistent with the evidence of Mr Muller and Mr Gartner, and my observation of the photograph, that the angle between the two fracture facets is far less than 90 degrees.
The second feature related to the way in which the bolt was attached to the chain. Mr Muller said the bolt appeared to be threaded through the first link of the chain, then welded repeatedly over a nut. He said the first link in the chain shown in the photograph lying transverse to the far end of the bolt was welded in that position.
Christopher Gass, who was for many years the trailer fleet manager for Redstar responsible for the servicing and repair of TNT trailers, disagreed. He thought another link, which could not be seen in the photograph, was welded along the far end of the bolt, and that the link lying transverse would hang down if the bolt was held vertical. Mr Gass said the dark colour on the bolt shaft and chain links was from lubricant used on the track, and dirt and dust. He said the chain was galvanised, and a link that was welded would have a ‘white rustic powdery look on it’.
Mr Gartner agreed with Mr Gass about the likely way in which the chain was attached to the bolt, but was not asked about colour changes caused by welding.
Dr Casey disagreed for two reasons. First, he observed that a chain link welded along the far end of the bolt would either be welded flat against the bolt, in which case it would protrude from behind the bolt and be seen in the photograph, or upright causing the bolt to sit much higher on the concrete surface than is seen in the photograph. Second, it was unlikely the bolt would be stable in the position shown in the photograph if it was sitting on the rounded outer surfaces of a chain link and the bolt itself. Dr Casey said there would only be a small area of weld on an attached chain link, which would likely be behind the bolt and could not be seen in the photograph.
Luke Gray, a diesel mechanic employed as regional fleet manager by TNT between 2008 and 2018, said bolts were attached by being welded to the chain, or put through the hole in a chain link with a nut attached.
I accept the evidence of Mr Muller, supported by the sensible observations of Dr Casey, that the bolt is welded to the link shown in the photograph partially obscured and lying transverse to it. Mr Gray’s evidence about the two methods used to attach the chains to bolts is consistent with this conclusion.
Heat-affected zone
Mr Muller said he had done a lot of welding since he started his apprenticeship as a 15-year-old. He said continually welding a piece of metal causes it to become brittle, crystallise and fatigue. When he looked at the bolt after the incident and saw all the welding his immediate thought was that the metal had crystallised, and that the bolt should have been replaced rather than re-welded.
Mr Gartner agreed steel in the heat-affected zone caused by welding would become coarser in grain size with each weld event and therefore diminish in strength. However, he said the heat-affected zone would only affect the bolt in the area it was welded to the chain, not where the fracture occurred. Dr Casey agreed, and said the heat-affected zone extended only a few millimetres from the weld and was much too far away to have any relationship with the fracture of the bolt.
Mr Gartner and Dr Casey were not challenged on this issue in cross-examination. I accept their evidence, and dismiss weakening of the steel as a result of welding as a potential cause of the bolt fracture.
Safety inspections, servicing and maintenance of the TNT tautliner trailers
Mr Muller said standing on the ground you could not see if there was a problem with the bolt or track. From his experience with welding and as a truck driver, whether there was a problem with the fittings suspending the gate really had to be left up to the people servicing it.
Ante Capin, a qualified diesel mechanic employed by TNT since 1999 to manage the maintenance and repair of trailers at Laverton, said that in the period 2013 to 2015 TNT engaged Redstar to perform safety inspections and maintenance on its trailers. Mr Capin said Redstar was required to perform a safety inspection of each trailer approximately monthly, an A service after every two or three safety inspections, and a B service every couple of years. TNT did not have a workshop at Laverton, and most A services and all B services were performed at a Redstar workshop close by. Usually the safety inspections were done at the TNT premises.
Mr Capin said the safety inspections and services were required to be performed in accordance with a TNT ‘Trailer Service Worksheet’. Safety inspections, that were also part of every A and B service, required inspection of everything to do with the gates. He said at each inspection Redstar should have opened the curtains and run the gates along the track to see if there was free movement, and if there was any doubt, or the gate was sticky or tight, Redstar should have gone up and taken a closer look. In cross-examination Mr Capin agreed that one way Redstar checked the rollers was by rolling them back and forth without releasing the gate, which they could do because there was slack in the chain.
Mr Capin said during a safety inspection one Redstar worker inspected underneath the trailer, and the other checked above deck. Usually a worker went onto the trailer deck to inspect the curtains, gates and rollers, and apply lubricant to the rollers and tracks. He said he had seen Redstar workers on several occasions repairing gates or rollers, and if welding was necessary they could remove the gate and take it to a room at TNT Laverton where that could be done.
Mr Capin agreed that standing on the ground you could not see any defect with the bolt. He said standing on the trailer during an inspection you would be able to have a close-up look at the tracks, the bolts and the chain, and if there was anything abnormal you would be able to see it.
Mr Capin said he occasionally did some minor repairs to trailers, such as replacing lights, curtain tensioners or ratchets. Otherwise the work was done by Redstar. He said Redstar had a huge operation with real expertise in inspecting and identifying problems with trailers, and performing necessary repairs.
Mr Gray said his job involved looking after fleet maintenance at the Laverton depot. He said it was part of the normal servicing for Redstar personnel to go inside the trailers, where they would be in a good position to see if the gate connections were worn, or if there were any telltale signs of damage.
Mr Gass said safety inspections were conducted on TNT trailers on most occasions they were in the yard. Those inspections were performed by Redstar mechanics, and sometimes he did them. He said he had 15 mechanics working under him, all of whom worked on TNT trailers.
Mr Gass said the safety inspections involved a visual check to make sure the lights were working and that there was nothing broken or hanging off a trailer. He said the worker walked around the trailer with a torch, which was needed for inspection inside the trailers, and because some inspections were done at night. A safety inspection involved assessing the gates, conducting a visual inspection to make sure they were not broken, the chains and bolts were not worn, and the rollers were working properly. He said A and B services involved the worker being up a ladder and spraying the rollers with lubricant to make sure they were free and rolled properly, and checking to see if the roller bearings were broken, there was wear on the bolts or the chain, or the chain was broken. Mr Gass said you did not have to move the gate as part of the inspection, because even if the spades were holding a gate in position there was slack in the chain and you could move the rollers. He agreed if you encountered any resistance when you moved the rollers it would be a cause for concern, and it was then Redstar’s job to identify any sort of imperfection or damage and report it.
Mr Gass agreed that when the inspection was performed in this manner the only weight being applied to the roller was the bolt and chain. He agreed that if the 30 kilogram weight of a heavy gate was added when the roller was being moved, that would accentuate the effect of notches in the track, and may reveal issues with movement of the gate or an increase in friction, and demonstrate that the mechanism was in a worse state than otherwise thought.
TNT defect system
Mr Muller said if he had a concern about the trailer he could go to the office at TNT Laverton and report it to a fellow there, who would call Redstar to fix it. He said that despite the gate being more difficult to move, it was not really a cause of concern because he was still able to do the job. He said he did not have to tell TNT about the gate because the TNT loaders, who worked with the gates more than he did, would know about and report any problems. He said one day he did ask the loaders if they could oil or grease the gate, and was told that was regularly done. He disagreed that he should have reported the issue to Mr Sexton, and said if he had done that, Mr Sexton would just say ‘tell TNT’.
Mr Capin said the TNT system was that anyone could report a problem or defect with equipment on a form that was left in the lunch room, which he would collect each morning to make sure issues were addressed. He agreed that most movement of the gates on the trailers was done by TNT employees and if there was a problem with a gate being stiff or difficult to move they would be well aware of that, and it was their job to report those issues. He said if there was a report to him that a gate was stiff and a bit harder to move then he would check it out himself.
Mr Gray identified a TNT ‘Work Method Statement’ (the Work Method Statement) dealing with gates which reads in part:
Defective gates (i.e. sticking) must be reported for repair at the earliest opportunity.
He said that directive was given to whoever used the equipment.
History of bolt and chain failures
Mr Muller said he had never experienced a gate coming off a roller before.
Mr Capin said he had previously seen bolts which had broken off up near the track. He said he told Redstar about previous occasions when bolts had snapped and that they were aware of these problems because they used a similar system on their trailers.
Mr Capin was asked whether, having regard to the history of bolts fracturing, anything was done to protect drivers who might be faced with a falling gate, and he said that was why there was a system of inspections by Redstar. Mr Capin agreed that loaders, drivers and people underneath a gate would be at risk if a bolt suddenly failed, and in the circumstances it was appropriate to have some protocols so that people knew that could happen. He agreed that was not the responsibility of Redstar.
Mr Gray said he was aware of an instance where a gate had fallen in the past, and because it was something that could have caused serious injury TNT did a root cause analysis. He accepted that weight bearing on the bolt gave rise to the possibility that it could fail, and that was something you would look out for in maintenance and use of the equipment.
Mr Gass agreed it was known to Redstar that the bolts were prone to wear from use, and would commonly bend under load.
Difficulty moving the gate and possible wear on the bolt
Mr Capin said if Redstar identified the problems moving a gate that Mr Muller described, which could be caused by a closed track or collapsed rollers or bearings, he would expect them to let him know about it, and to do the repairs necessary to fix the problem. He agreed the tautliners were industrial trailers doing a lot of work, and there was a certain amount of wear and tear, but said he would expect Redstar to fix something if it was a safety problem or a functional problem. Mr Capin said Redstar had to tell him about any extra work that was required so that he could feed it into the TNT system and add the extra costing for the job. He would authorise additional work if he thought it was appropriate, and anything to do with safety was automatically authorised.
Mr Capin said tracks can be damaged by a forklift or freight, and if they close up a little they could be tight, and rub on a bolt and damage it. He said the tracks are reasonably sharp and if they rub unchecked and unreported they can damage a bolt and wear through it. He said if a bolt was rubbing against a track it would be marked, and on inspection from the deck of the trailer you would be able to see it. If there was a bit of wear on a track he would not expect it to be replaced as long as the rollers were operating freely. He was asked:
And the other thing that if you were moving it backwards and forwards, either from the bottom or up the top, and it seemed a bit noisy, that wouldn’t of itself be a problem necessarily?---Yes, they should replace it.
Mr Capin explained that you can distinguish between noises made when the gates were moved. If there was a noise from a roller bearing fault, it should be replaced. If the Redstar technician heard a noise, he and Mr Capin might check it out together. He said whether you did something about a noise caused by a gate might depend on what you thought the consequences were, but you really had to have a look to see what was happening. You do not want a bolt running up against the track itself, and if that happens they can open up the tracks a little bit to spread them out. Mr Capin was asked:
Okay. If it was a bit stiff, that would be another - that is, the gate was a bit stiff, that would be another reason to have a look?---It rings - it rings alarms, yes.
And so you’d go and have a look - - -?---Yeah, definitely.
- - - and see how you could fix it?---Yeah.
Now in terms of - but that wouldn’t - if it was a bit stiff you wouldn’t necessarily replace the whole thing?---No, in those cases because those gates are reasonably heavy and you need to fix that. You don’t want it dragging too hard, too harsh on the track or anything else in fact.
Yes, but you don’t want to - you don’t replace the gate just because it’s a bit - - -?---No, you don’t - no, you wouldn’t replace the gate, no. If anything, those rollers are interchangeable, they can be replaced. The rollers at that stage they only about 40 bucks. I wasn’t concerned. But if there’s any - any doubt whatsoever with any rollers or any mechanism that are involved in the gates, then we automatically say, ‘Yes, they need to change’, yes.
Mr Gray said if a gate or roller was sticking, Mr Capin might look at it and see if he could free it up or unjam it. If it was a longer term problem with the gate sticking day after day then it would have been investigated to identify what the problem was and repaired by Redstar. It was put to Mr Gray that it would be impossible for any person to look at a bolt and say whether or not it was going to snap, and he said you could see if the bolt was worn, which might give you a sign that it might snap. He said you could determine if the bolt was worn because you would see a different colour from it rubbing against something, which was the sort of thing that could be seen on inspection by Redstar.
Mr Gass agreed that if the gate moved as Mr Muller described that was something Redstar would be able to identify on the monthly inspections, and should act on pretty swiftly, because the gate might come down and cause injury. He said if some sort of problem was identified with the bolt it would be removed and replaced.
Dr Casey and Mr Gartner agreed that wear on the bolt caused by rubbing against the track would be visible on inspection.
The track
TNT produced a purchase order history summary recording safety inspections, services and repairs performed on the A trailer from 2008 to May this year. An entry in the history summary in September 2019, and the corresponding TNT purchase order and repairer invoice, record replacement of the driver side track. There is no entry in the history summary recording replacement of the passenger side track on the A trailer.
Since the incident the arrangement used on the A trailer to attach the gates to the rollers has changed, and now consists of a strap connected to the rollers by what Dr Casey described as a D-clip. The history summary and invoice record that all gate rollers and straps were replaced on the A trailer in September 2019, at the same time as the driver side track.
Inspection of the A trailer
Dr Casey inspected the A trailer on 24 May 2021.
Using a ladder Dr Casey was able to closely inspect the track. He observed heavy wear to the inside edge of the track extending rearwards for more than 2 metres from the front of the trailer. Dr Casey said the wear appeared consistent in parts with galling, which he described:
Galling is a very heavy form of wear. So galling is actually where items are being pressed together so hard that the contact literally starts to join them together. Because the contact is joining them together, if you start to move one relative to the other it starts to tear material from one of those surfaces, and galling has this characteristic of (indistinct) which you can clearly see the gouging where the material is being torn out from one surface. So galling refers to a very (indistinct) and the contact is enough to tear material out from one of the surfaces.
Dr Casey said he saw no appreciable wear on the part of the current D-clip which had the potential to make contact with the track in the area where he saw galling. Dr Casey was asked:
Assuming for a moment for the purposes of answering this question that had you been able to go back to March 2015 and view the track, that you would have seen the same galling evident on the track at that time - - - ?---Yes.
Is there anything other than the bolt, the shaft of the bolt of which you are aware, that could have been the other surface to cause the galling?---The bolt is the only thing. It’s the only thing that could get close enough to make that galling.
Dr Casey said the inside edge of the track was distorted and not straight, the track had an obvious bumpy feel as he ran his hand along it and appeared to be wavy, and when he tried to roll the current roller, the movement was very bumpy. He said some bumps sat proud into the gap of the track and the tips of these bumps had the greatest degree of wear present, which appeared consistent with galling. He said the front most part of the track had severe damage, and had been pulled together with two bolts, one of which was added since the photograph taken by Mr Muller on the day of the incident.
Dr Casey said Mr Muller’s description of the difficulty he experienced moving the gate was consistent with what he found on inspection of the track. He said:
where Mr Muller described he had to reef it indicates something stopping the roller from moving along and I found a lot of wear to the gate, to the track itself, and to me that lines up with the fact that it was wearing against the gate track and that was making it difficult for him to pull it along.
…
‘Reef it’ indicates he’s not just using a little bit of extra force, he’s using a lot of extra force to pull it along, which means that there’s something not just hindering the roller, it’s hindering it a lot. So, in other words, if you’ve got something that’s fouling on the roller or the bolt, for example, then it has to have been fouling considerably, a lot, and in terms of wear, if it’s fouling considerably it can produce that very hard to move — that hardness of the movement, but it can also produce a lot of wear. So to me there’s a very good consistency between what Mr Muller describes and what I conclude.
Dr Casey said the warped track would cause the roller to move up and down and in and out, and could result in the rollers and the bolt tilting.
Dr Casey said the track appeared to him to be stainless steel which explained why there was no sign of rust in the area where he observed wear and galling, or anywhere else on the track.
Mr Gartner did not inspect the A trailer.
The fracture of the bolt
Dr Casey and Mr Gartner agreed that the bolt must have been in a significantly weakened condition before the final fracture, and on the possible mechanisms that weakened it.
The first possibility, which Dr Casey said was most likely, was that the bolt was worn away by rubbing against the inside edge of the track. In Dr Casey’s opinion the dark grey facet at the top right of the near end of the bolt in the above photograph was caused by wear against the track.
The second possibility, which Mr Gartner said was the most likely, was that a fatigue crack initiated at the base of one of the top threads of the bolt, and grew as stress cycles were applied over time during journeys and when the gate was being moved. In Mr Gartner’s view the dark grey facet is a fatigue crack.
The third possible mechanism incorporates features of the first two, that wear on the bolt caused by rubbing against the track was the point of stress concentration at which a fatigue crack initiated and grew. The fourth mechanism is that trauma from impact with a forklift or freight damaged the bolt leading to its failure.
The experts were hampered in their analyses because the fractured bolt was not available for scientific examination, and Dr Casey’s inspection of the track occurred more than six years after the date of the incident. In cross-examination Mr Gartner was asked:
Mr Gartner, do you agree with me that the opinions and conclusions you’ve expressed in your report come about through a high degree of speculation on your part?---Yes, because you cannot see the fracture surface well enough to other than speculate.
Dr Casey agreed that his assessment, and the level of certainty of the opinions he expressed, was compromised by not having access to the bolt, and having to rely on a photograph, however he stood by his conclusions on the balance of probabilities.
Dr Casey said the image of the failed bolt is too coarse to see whether differentiating features that delineate between fatigue and wear are present, and that what is seen in the photograph is consistent with both wear and fatigue. Mr Gartner agreed that Dr Casey’s hypothesis about the mechanism of failure was consistent with what he could observe on the photograph.
Dr Casey relied on the following matters in support of the conclusion he reached. First, a single stress mechanism will typically result in a fracture surface that is more or less planar. The two facets at different angles indicated two different mechanisms were involved in failure of the bolt, first, wear across 40% of the width of the bolt resulting in the grey facet, and second, final failure caused by stresses applied to the weakened bolt on the day of the incident resulting in the silver facet. Second, the first chain link was welded to the bolt at an oblique angle, which would result in a tendency to tilt the bolt and roller cage when the weight of the gate was applied, moving the bolt closer to the edge of the track, increasing the possibility of rubbing contact and wear. He said the eccentric arrangement for attachment of the chain to the bolt would result in forces not being aligned with the longitudinal axis of the bolt, worsening the stresses to which it was subjected and decreasing its life. Third, Dr Casey said a photograph taken of the track by Mr Muller on the day of the incident showed one side of the track is thinner, and the gap in the track was widened, particularly towards the front end. Dr Casey said both features were consistent with wear caused by rubbing between the bolt and one edge of the track. Fourth, Dr Casey said the significant impediments to movement described by Mr Muller are consistent with the bolt rubbing against the track and wearing. The scenario in which a fatigue crack initiated and grew from the base of a thread on the bolt does not involve any hindrance to movement of the gate. Fifth, the heavy wear and distortion of the track found by him on inspection was consistent with the bolt being damaged by wear caused by rubbing against the track. Dr Casey acknowledged he had no way of knowing whether the wear and distortion he found when he inspected the track this year was present in 2015, or was caused after the incident.
Mr Gartner expressed the following opinion:
In my opinion the fracture of the bolt appears to be consistent with a fatigue failure where a fatigue crack has developed at the root of a thread of the bolt at or near the end of the tapered shank of the bolt. ... A fatigue crack could have formed over numerous sideways loading cycles as the gate moved inwards and outwards at its top, which was connected to the bolt and roller via the chain welded to the bottom of the bolt, during the travels of the trailer.
Mr Gartner said the angle of the final fracture was explained by the combination of downwards, outwards and rearwards forces as Mr Muller moved the gate. Mr Gartner doubted the photograph taken by Mr Muller showed wear of the track, and said the features on the photograph which Dr Casey was calling wear were probably discolouration and reflection. Mr Gartner said one point on the track where Dr Casey said he observed wear in the photograph was further forward than the travel of the bolt, and could not represent wear.
When he prepared his first report Mr Gartner relied on inspection of the A trailer by Dr Grigg, a second expert instructed by Redstar. However, Redstar did not call Dr Grigg as a witness. Mr Gartner said:
If the crack had developed from wear of the bolt rubbing contact against the roller track, as proposed by Dr Casey, then the track would be expected to show the most wear where the bolt would have been most frequently present in the centre of the front half of the front section (raised floor section) of the trailer, but there was no significant wear in this area according to Dr Grigg.
Dr Casey inspected the A trailer, and found wear on the track as described above, after Mr Gartner had prepared his first report and expressed this opinion.
Findings and analysis
Mr Muller was a credible and reliable witness. I accept the evidence he gave about the circumstances of his employment, the difficulty he experienced moving the front gate on the A trailer, and his description of the incident.
On the basis of Mr Muller’s description of moving the gate I conclude the track was uneven, bumpy and worn.
For the following reasons I conclude that there was rubbing contact between the bolt and the track resulting in wear to the bolt. First, Mr Muller’s description of the gate snagging, and having to ‘reef it’ indicates movement was being significantly hindered. Second, Mr Muller described hearing metal when he moved the gate, which he thought was probably the bolt hitting against the track. Dr Casey said a bolt rubbing against a track would cause aberrant noise, and Mr Capin said noise when a gate was moved could indicate the bolt was rubbing against the track.
Third, I accept Dr Casey’s evidence that the possibility of rubbing contact between the bolt and the track was increased by the unevenness of the track and the eccentric attachment of the chain to the bolt. Fourth, I accept Mr Capin’s evidence that a damaged track, the inside edge of which he described as being reasonably sharp, can rub against and cause wear to a bolt. On Mr Capin’s evidence this was not a rare or unusual occurrence. Mr Gray also recognised the possibility that rubbing could cause wear and damage to a bolt.
Fifth, I accept Dr Casey’s evidence that the distortion, bumpiness and galling he observed on the track this year are consistent with Mr Muller’s description of moving the gate. Further, I accept Dr Casey’s evidence that if the track was in a similar condition in 2015 the wear he observed must have been caused by rubbing contact between the bolt and the inside edge of the track. It is relevant that on inspection Dr Casey found evidence of heavy wear where Mr Gartner said he would expect it if the bolt had been damaged by rubbing contact against the roller track. There is no evidence the track has been replaced since 2008. While it is possible some of the wear observed by Dr Casey occurred after the incident in which Mr Muller was injured, I conclude the condition of the track was longstanding and supports the conclusion that in the period leading to the incident there was wear on the bolt caused by rubbing against the track.
Sixth, the conclusion that rubbing wear was occurring to the bolt fits best with the history. It is unlikely the difficulty moving the gate was purely coincidental and unrelated to the ultimate failure of the bolt. Mr Muller experienced the same difficulties moving the gate for the whole time he worked for Klosed prior to the incident. There is no evidence that in the time Mr Muller worked for Klosed the gate or the bolt were damaged by collision with a forklift or load, or some other trauma, causing any alteration to the way in which the gate moved.
Seventh, Dr Casey took into account and relied on Mr Muller’s experience of moving the gate, and set out a rational basis for the conclusion that the most likely cause of failure of the bolt was wear leading to the final fracture. On the other hand, Mr Gartner did not set out a path of reasoning to his rejection of wear as the initiating cause and his conclusion that it was most likely the bolt failed because a fatigue crack initiated at the base of a thread, and accepted his opinion involved a high degree of speculation.
There was a debate between Dr Casey and Mr Gartner about application of the science of fracture mechanics to the bolt failure, and the relative angle of and explanation for the two fracture facets. I conclude that the experts were particularly hampered in this aspect of their evidence by not being able to examine the fractured bolt or observe and analyse the magnitude and nature of the stresses applied to it when the gate was being moved. In the circumstances, I have not placed any reliance on the fracture mechanics analysis by either expert, or the relative angle between the fracture facets.
Liability of TNT
TNT owned and operated a large number of trailers from the Laverton depot. While it is correct that TNT contracted the servicing and repair of the trailers to a company with expertise in that field, it did not simply rely on Redstar to ensure the trailers remained safe for use. TNT employed Mr Capin and Mr Gray, both qualified diesel mechanics, to manage the maintenance and repair of trailers. Mr Capin’s role involved receiving reports of damage or defects requiring attention and managing inspections, servicing and repairs by Redstar. It was part of Mr Capin’s role to approve additional repair work, consider particular issues that required investigation, and perform some minor repairs himself.
The Work Method Statement required that defective (sticking) gates be reported for repair at the earliest opportunity. The gates on the A trailer were used by TNT loaders and forklift drivers every day. The persistent difficulty with movement of the gate should have been reported by TNT workers, leading to investigation of the problem and necessary repairs being performed. While it had an appropriate system for reporting sticking gates so that they could be repaired, that system was not implemented or enforced on this occasion. Contrary to its own Work Method Statement, no action was taken by TNT workers to report the defective and sticking gate so that it could be repaired at the earliest opportunity in accordance with the Work Method Statement.
Mr Capin said TNT was aware of a history of bolts failing, and the possibility that a worker might be injured as a result. The only responses by TNT to that risk were the systems for reporting defects, and the regular safety inspections and servicing of trailers. TNT did not warn Mr Muller of the risk, or provide any instruction or training to allow him to avoid injury if a gate fell unexpectedly, which made it more important that there was compliance with systems for reporting and promptly repairing defective or sticking gates.
Liability of Redstar
Redstar was a large organisation with expertise in and responsibility for safety inspections, servicing and repair of the TNT trailers at the Laverton depot. In addition Redstar had its own fleet of trailers which used the same system for attachment of the side gates. I accept Mr Capin’s evidence, consistent with that of Mr Gass set out in paragraph 53 above, that Redstar was aware of the risk of attaching chains and bolts failing and gates falling.
There were two particular deficiencies in Redstar’s system for safety inspections. First, a safety inspection simply involved moving the rollers back and forth with the gate still in position. This meant movement of the rollers was only checked over a relatively small part of the track, and not under weight. Second, at least some inspections were by torchlight, either because they were conducted at night, or inside the trailer with the curtains closed. These deficiencies probably explain why it was that the very regular safety inspections by Redstar did not lead to discovery of the obvious difficulties moving the gate on the A trailer, and the developing wear on the bolt.
In final submissions Redstar argued the case against it based on difficulties moving the gate, and inadequacies in its system of inspection, were not pleaded, advanced in evidence against it or fully explored at trial, and were in effect afterthoughts. For the following reasons I disagree. First, the particulars of breach pleaded against Redstar included failure to adequately maintain the trailer gates, failure to inspect the gates for signs of fatigue or potential component failure, and failure to heed complaints of the gates being difficult to open. Second, in his initial report Dr Casey recorded that Mr Muller said the gates would stick and required force by pulling or jerking the roller to move along. Dr Casey said:
As I have explained previously, if the gates were properly tested/inspected, I believe signs would have been present alerting a competent person to the fact that a problem was occurring in the gate (including its roller) in question.
Dr Casey said those signs were the track being aberrantly worn, and movement of the gate resulting in aberrant noise and requiring more force than normal. Dr Casey concluded:
I am critical of the fact that the problem with the roller in question could go unnoticed/unrepaired for as long as it did.
Third, part of the evidentiary support for the case against Redstar came from the evidence of Mr Gass, a witness called by Redstar.
There were problems moving the gate for the entire period of about a year that Mr Muller worked for Klosed before the incident. Redstar was responsible for safety inspections, maintenance and repair of the trailers for the whole of that time. Mr Gass agreed that encountering resistance when moving gate rollers was a cause for concern, that it was Redstar’s job to identify defects or problems with the attachment system, and that the problems described by Mr Muller should have been identified and acted on swiftly because of the risk gates might come down and cause injury. Had Redstar met these obligations the bolt would have been replaced, and the incident would not have occurred. I conclude there was negligence by Redstar which was a cause of the incident and injury to Mr Muller.
Liability of Klosed
Klosed submitted, first, that the issue with the sticking gate did not bother Mr Muller at all from a physical perspective. Mr Muller, Mr Capin and Mr Gass said that a driver standing on the ground looking up would be unable to see whether there was a risk of the attaching bolt fracturing. Klosed was, in effect, in the same position as the driver. Reasonableness did not require that it make its own arrangements to periodically inspect the mechanism which attached each gate to trailers operated by Mr Muller, presuming TNT would agree to that occurring. Second, the incident did not arise out of manual handling, but from a defective product which ultimately gave way. Third, the criticism for not calling Mr Sexton to give evidence is unfounded because there was no evidence which required a response from him. No questions were asked of Mr Capin or Mr Gray about the arrangements between TNT and Klosed, and neither said that had Klosed formally complained about the sticking gate anything different would have occurred. The only conclusion open on the evidence is that if Klosed had reported the sticking gate, TNT would have taken a report of it, and perhaps applied lubricant to the track from time to time. Beyond that it is a matter of conjecture.
Fourth, the fracture of the bolt used in this manner had not previously been encountered by either expert, and is obviously an unusual occurrence. Fifth, it should be concluded that there was no danger which was reasonably foreseeable to Klosed in Mr Muller continuing to use the trailer knowing that TNT regularly operated the gate and engaged a qualified organisation to conduct regular safety inspections, servicing and maintenance of the gate. The evidence does not establish that there was a risk of the bolt snapping of which Klosed should have been aware which was more than far‑fetched or fanciful. There was no evidence that the degree of problem with the gate of which Klosed should have been aware required more than periodic lubrication of the track.
Sixth, because the incident arose out of a defect in a product, not manual handling, the case made against Klosed based on alleged breach of the manual handling provisions of the Occupational Health and Safety Regulations 2007 (Vic) must fail.
I reject the submission of Klosed that the incident arose out of a defective product. There is no evidence of any inherent defect in the bolts which made them unsuitable for use attaching gates to the roller mechanism and tracks. The incident was caused by the failure of systems for reporting and repair of defects associated with sticking gates, and the failure of systems for safety inspections, servicing and repair of the gates and attachment mechanisms. There was a systemic failure to respond to the persistently sticking gate which required force to move it which resulted in defects to the track and wear of the bolt not being discovered and remedied.
A reasonable employer in the position of Klosed ought to have been aware of the following. First, the TNT systems directed to ensuring the trailers were safe, including the Work Method Statement required that sticking gates be reported and repaired at the earliest opportunity. Second, that Redstar was engaged by TNT to perform regular safety inspections, servicing and maintenance of trailers. Third, that the trailers were subject to heavy use and wear. Fourth, that Mr Muller experienced difficulty with the gate sticking and requiring force to move it for the whole period of his employment up to the date of the incident. Fifth, that despite TNT’s systems and Redstar’s obligations, the problem had not been resolved when it ought to have been.
TNT had an appropriate system for reporting defective or sticking gates, and for Redstar to perform safety inspections, servicing and maintenance of trailers. Mr Capin, Mr Gray and Mr Gass agreed that the difficulty moving the gate described by Mr Muller should have been identified, investigated and resolved. The problem with the gate and the track persisted because the TNT systems were not implemented, and the Redstar safety inspections were not conducted as they should have been. The TNT system for reporting defects on the trailers extended to contractors. It was part of Mr Capin’s role to receive and action defect reports. Had Mr Sexton taken steps to ensure the persistent problem with the movement of the gate was reported for repair, as he should have done, it is likely to have come to Mr Capin’s attention, who I accept would have taken steps to investigate the cause and remedy the problem, by arranging for repair of the tracks or replacement of the bolt if it was found to be worn.
I conclude there was a breach by Klosed of the duty it owed to Mr Muller, which was a cause of the incident and his injuries.
Contribution
The failure by Klosed to report the sticking gate must be considered in context. Klosed was not located at the Laverton premises, and could not reasonably be expected to receive daily reports from Mr Muller about a sticking gate which did not prevent him from doing his work, conduct its own investigation into the cause of the gate sticking, or take steps itself to remedy the problem. While it was reasonable to expect Klosed to report the persistently sticking gate on the A trailer to TNT, or instruct Mr Muller to do so, it did not control the trailer or the premises from which TNT operated and was not directly responsible for developing or implementing systems of work relating to the use of the trailers.
TNT submitted it was entitled to rely on Redstar’s expertise, and the failure by Redstar to discover and remedy the problem with the sticking gate was the major contributor to the incident and Mr Muller’s injuries. For the following reasons I disagree.
First, TNT is responsible for the repeated failure of its employees to comply with the Work Method Statement and report the sticking gate so that it could be repaired. Second, TNT did not contract out work to Redstar in relation to which it had no knowledge, experience or expertise. Mr Gray said TNT had workers with the qualifications to perform safety inspections, servicing and maintenance of the trailers, but had not retained the manpower to perform functions it contracted out to Redstar. Mr Capin had the experience and qualifications to investigate and repair problems such as the sticking gate. It was part of Mr Capin’s role to receive and, if necessary, investigate defect reports. Third, TNT retained daily oversight of and involvement in the work performed by Redstar. Mr Capin allocated the work to Redstar, and approved further work as necessary. Particular issues with the trailers might be inspected and investigated by Mr Capin with Redstar. Fourth, TNT was aware of the risk that attaching bolts and chains might give way, and that persons might be injured by falling gates, and was responsible for informing workers using the gates about that risk, and devising and implementing systems to ameliorate the risk.
Redstar was responsible for safety inspections, servicing and maintenance of trailers for the entire period of Mr Muller’s employment with Klosed up to the date of the incident. The failure to detect, investigate and remedy the sticking gate and worn bolt were significant contributing factors to the incident and Mr Muller’s injuries.
The contribution to damages awarded to Mr Muller is to be determined by what is just and equitable as between the defendants.[1] There are two relevant considerations: first, the degree of departure from the standard of care required of a defendant; and second, the relative causal potency of each defendant’s acts or omissions in relation to the injury sustained.[2] Assessments of apportionment involve questions of balance and relative emphasis. The factors which are relevant to apportionment of contribution in this case include: (a) access to and the opportunity to inspect the trailers; (b) what each defendant knew or ought to have known about hazards associated with the gate connections; (c) that Mr Muller used the A trailer the whole time he worked with Klosed up to the date of the incident; (d) the gate was sticking and difficult to move that whole time; (e) Klosed had no independent ability to take steps to avert the hazard; (f) Mr Muller was injured in the course of his normal duties; (g) TNT was in the best position to identify and report the defective and sticking gate; (h) TNT had a responsibility to take steps to ensure the Work Method Statement was implemented by those working with the gate; (i) Redstar was responsible for safety inspections, servicing and repair of gates on TNT trailers; (j) TNT controlled the Laverton premises and the trailers; and (k) Redstar had daily access to the premises, and the trailers for the purposes of performing safety inspections and repairs.
[1]Wrongs Act 1958 (Vic), s 24(2).
[2]Zealley v Liquorland (Aust) Pty Ltd [2015] VSC 62, [143]; Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 665, 690 [76].
For all of the above reasons, and after taking account of these factors, I conclude an appropriate apportionment of liability is 10% to Klosed, 45% to TNT and 45% to Redstar.
Damages
Mr Muller said initially after the incident he had some left shoulder pain, but was able to keep working. Some days later he began to develop pain in what he said was his left hip. In evidence Mr Muller indicated the pain he experienced was around the top of his left buttock and left side of his lower back.
Six days after the incident Mr Muller attended his GP with a complaint of ongoing left hip pain, and was given a script for medication. Mr Muller said over time the pain got worse, and became excruciating, but he persevered and kept working because he knew he had holidays coming up. He saw his GP again in early August complaining of ongoing left hip pain which was not controlled by Panadol Osteo, and was given a script for analgesic Targin. At a further attendance later in August 2015 Mr Muller’s GP noted a complaint of progressive hip pain not responding to Targin, and that another script was needed.
Later in August Mr Muller took a five-week holiday, and drove to Alice Springs with friends to attend a transport reunion. He said he had great difficulty with the journey to Alice Springs, took 10 or 20 Targin over the three days because of pain, and by the time he arrived was a real mess.
Mr Muller was admitted as an inpatient to the Alice Springs hospital in late August 2015, where he remained for three or four weeks. The principal diagnosis made at the hospital was:
Acute on chronic left hip pain secondary to prolapsed intervertebral disc L3 and L4 with L3 nerve root compression.
That diagnosis was confirmed by MRI scan.
Mr Muller said he faked improvement in his condition in order to be discharged from the hospital, paid for a first class return flight to Melbourne, and consumed a significant amount of alcohol during the flight to help cope with his pain. When he arrived in Melbourne Mr Muller was transported by ambulance to the Goulburn Valley Base Hospital and, after one night, to the Epworth Hospital where he came under the care of neurosurgeon Mr Chan, who arranged for him to have a CT-guided left L3/4 transforaminal cortisone injection.
In early October Mr Muller was transferred from the Epworth Hospital to a rehabilitation facility in Warrnambool, where he had family support. He was an inpatient at the rehabilitation centre for some weeks before eventually returning to his home in Shepparton in late 2015.
Mr Muller saw Mr Chan again in November 2015 to discuss surgery, but was advised to lose weight first. In the same month Mr Muller was reviewed for a WorkCover insurer by orthopaedic surgeon Mr Moran, who noted symptoms of constant throbbing pain in the low back and a burning pain on the inside of the left thigh and left lower leg to just above the ankle. Mr Moran diagnosed that Mr Muller had suffered an L3/4 disc prolapse for which discectomy surgery would be appropriate. He said the cause of the injury was the incident in which the trailer gate fell on top of Mr Muller resulting in him twisting his back. In Mr Moran’s opinion Mr Muller was not fit for his pre-injury duties.
Mr Muller was unable to return to work with Klosed in late 2015, and remained off work until around mid-2018. He continued to see his GP and receive scripts of analgesic medication, including Lyrica, and attend for regular physiotherapy treatment. In early 2017 he was reviewed by neurosurgeon Mr O’Brien, who noted an improvement in symptoms, and concluded surgery was unlikely at that stage.
In August 2017 Mr Muller was reviewed for the WorkCover insurer by occupational physician Associate Professor Boffa, who recorded that he was currently being certified fit for suitable employment, and was being assisted by an organisation to help find work. Associate Professor Boffa diagnosed that Mr Muller had chronic mechanical low back pain with left nerve root irritation which was caused by the injury he suffered at work. Associate Professor Boffa considered Mr Muller was not fit for his pre-injury duties or hours, but that he had a current work capacity.
Mr Muller returned to work as a truck driver in about May 2018. He said it was a very easy job, and he was given a brand new prime mover which was beautiful to drive, but said the pay was dreadful, and because the boss wanted to make sure the new truck was out working, not sitting in the yard, he had to drive a lot of kilometres. He said he required physiotherapy treatment, and asked for a couple of nights off, but the boss did not want to do that. He was taking Lyrica, Targin and Panadol Osteo when he should not have been, and a drug screen came back positive so he had to reduce his medication. The boss rang him one day when he was at the physiotherapist in Broadford, and told him he was sick of seeing the truck sitting at home, then hung up. Mr Muller said as a consequence of this interaction he gave notice.
About six months later Mr Muller obtained work driving a truck from Melbourne to Swan Hill five nights a week, with no loading or unloading. He said the truck he was driving was very comfortable, and the job was perfect. Mr Muller said he was still suffering a high level of pain, which was just terrible if he did not take medication. He said he was taking medication that he should not have been while he was driving, and would dose up pretty heavily at weekends. In May 2020 he injured his mid back in an incident at work and was admitted to Swan Hill hospital for a few days for treatment. After returning to Shepparton Mr Muller developed a shoulder infection and terrible fever which he said was caused by a spider bite, and was in hospital for 14 days. He recovered from the infection, but had been replaced by his employer and has not been back to work since.
Mr Muller said he continued to have physiotherapy treatment and to take medication for his low back pain. In late 2020 he was referred to a pain specialist, Dr Todhunter, who asked him to stop medication so that he could monitor and determine the source of his pain. Dr Todhunter arranged for him to have a nerve block in the low back which reduced his pain for 14 days, and Mr Muller is to return in the near future for another procedure.
Mr Muller described continuing pain to the left side of his low back and altered sensation down his left leg. He said that he is restricted walking, performing domestic duties and gardening, and that his low back pain is significantly worse than the pain in his mid back from the Swan Hill incident.
Dr Kennedy
Mr Muller was assessed by sports and industrial physician Dr Kennedy at the request of his solicitors in August 2019. On clinical assessment of Mr Muller’s low back Dr Kennedy recorded:
On examining the lumbosacral spine, there was tightness and tenderness over the erector spinae and paravertebral musculature, with tenderness over the intervertebral disc space and posterior facet joints at L3/4 and L4/5, worse on the left side. There was also tenderness over the left sacroiliac joint. There was an asymmetrical loss of active range of motion, particularly on flexion extension and lateral flexion and lateral rotation to the left.
The straight leg raising test was restricted on the left side, with a positive stretch test. There were signs of left-sided L3 and to a lesser extent L4 radiculopathy, with reduced strength and sensation in the distribution of these nerve roots. There was a diminished left knee jerk and left ankle jerk.
Dr Kennedy expressed the following opinion:
Mr Muller, as a consequence of a work incident on 3 March 2015, sustained significant injuries to his lumbar spine, aggravating pre-existing but asymptomatic problems in his lumbar spine, with the development of a protrusion at the L3/4 intervertebral disc, compressing the left L3 nerve root, resulting in left-sided radiculopathy. His major ongoing problems have been pain and stiffness in his lumbar spine, with radiating pain down his left lower extremity, with aggravation of the problems with any prolonged sitting or standing, especially leaning forward or performing repetitive movements of his lower back under any stress or load.
The injuries sustained are consistent with the description of the incident that occurred on 3 March 2015 whilst working for Klosed Pty Ltd. There are no obvious discrepancies between his current symptoms on presentation and the clinical findings on examination.
Dr Kennedy noted Mr Muller had been able to return to work, but remained restricted by his low back condition with the type of truck that he drove, and in relation to loading and unloading activities, or activities involving any load or stress on his lumbar spine. He considered these restrictions were likely to continue for the foreseeable future.
Professor Bittar
Mr Muller was reviewed by neurosurgeon Professor Bittar at the request of his solicitors on 9 October 2019 and again on 23 April 2021, who made the following diagnosis:
1.Aggravation of lumbar spondylosis with ongoing lower back pain which is likely to be substantially related to the facet joints.
2.Left leg pain with associated L3 radiculopathy. His leg pain appears to have a significant neuropathic component with more widespread allodynia. His L3 radiculopathy is consistent with the history of disc prolapse on the left hand side at L3/4.
Professor Bittar concluded the work injury in March 2015 was the dominant contributing factor to Mr Muller’s low back condition. In 2019 Professor Bittar recommended that Mr Muller be reviewed by a qualified pain specialist for a series of diagnostic blocks, and said he might be a candidate for radiofrequency denervations for his low back pain, and trial of a spinal cord stimulator for his left leg pain. In his second report he noted Mr Muller had attended Dr Todhunter who recommended radiofrequency denervations, which Professor Bittar thought Mr Muller would require every six to 18 months, depending on the duration of benefit from the procedure. He concluded Mr Muller was likely to suffer from significant pain and disability into the foreseeable future.
Dr Brazenor
Neurosurgeon Dr Brazenor reviewed Mr Muller at the request of the second defendant’s solicitors in August 2019. A great deal of Dr Brazenor’s report involved consideration of the cause of Mr Muller’s low back condition, which seemed to arise as an issue because Mr Muller initially reported his symptoms as left hip rather than low back pain, was able to continue working until August 2017, then suffered the onset of acute symptoms on the Alice Springs holiday which led to the diagnosis of an L3/4 disc protrusion. Before he had the opportunity to review the consultation notes of Mr Muller’s GP, Dr Brazenor said:
Judging from radiology reports there is no doubt that this man suffered a left-sided protrusion of the L3/4 disc sometime prior to the end of August 2015. Whether this prolapse was begun with the alleged twisting injury on 3 March 2015 (whereupon the prolapse merely completed when he stepped into the shower on 29 August 2015 in Alice Springs), or alternatively whether there was no disc injury on 3 March 2015 and the prolapse evolved much later, during the road trip to Alice Springs and finally on 29 August 2015, will probably be decided by reference to the consultation notes of the Market Place Medical Centre between 3 March 2015 and 29 August 2015. Hence my letter of 22 July 2019 asking that you contact the practice manager of the Market Place Medical Centre requesting the narrative consultation notes.
Nevertheless the current radiological and examination normality of Mr Muller’s left hip for his age strongly suggests that it was not capable of being a pain generator in the period 3 March 2015 – 29 August 2015, so should the Market Place Medical Centre consultation notes confirm recurrent presentation with left “hip” region pain during that period, then that set of circumstances would suggest primary injury to the L3/4 disc on 3 March 2015.
The GP notes did confirm ongoing and increasing complaints of left hip pain from March to August 2015. Despite that, after reviewing the notes, and reports of scans of Mr Muller’s low back taken in Alice Springs and Melbourne, Dr Brazenor concluded that in the period March to August 2015 Mr Muller suffered pain from osteoarthritic hips, and sustained a ‘de novo’ left-sided disc protrusion at L3/4 when driving to Central Australia, with the acute disc herniation occurring in Alice Springs. Dr Brazenor also concluded the L3/4 disc protrusion had since healed and any low back symptoms suffered by Mr Muller were now from age-related chronic degenerative disease in the lumbar spine which he would be experiencing without the injury.
For the following reasons, I reject Dr Brazenor’s causation opinion. First, there is no adequate explanation for the obvious inconsistency between his interim and final opinions. Second, there is a consistent description of increasing pain recorded in the clinical notes of the GP and the Alice Springs hospital which strongly supports a conclusion that the cause of injury to the low back and disruption of the L3/4 intervertebral disc was the incident in which the gate fell on Mr Muller. Third, I accept Mr Muller’s evidence, supported by clinical records and medical reports, that he has continued to suffer low back and left leg symptoms of consistent description since March 2015. Fourth, to the extent Dr Brazenor relied on reports of radiological scans, I accept the criticism of Professor Bittar as to the danger of relying on reports made by different radiologists from different hospitals without reviewing the films. Fifth, there is no adequate path of reasoning supporting Dr Brazenor’s opinion that Mr Muller’s continuing symptoms are now caused by pre-existing degenerative changes and are unrelated to the incident. Sixth, Dr Brazenor’s opinion is inconsistent with the other medical evidence, including the opinions of Mr Moran, Dr Kennedy and Professor Bittar which I have set out above, and which I accept.
Assessment of damages
In June 2012 Mr Muller attended his GP complaining of low mood and associated symptoms, and appeared depressed on examination. He was counselled by his GP, and referral to a psychiatrist was discussed but does not appear to have occurred. Mr Muller attended six counselling sessions with a psychologist in early 2014. In June 2016 Mr Muller again saw his GP suffering from low mood in the context of experiencing significant issues relevant to his 25-year-old son. The doctor noted depression on examination, and recorded a longstanding history of moderate depression. Mr Muller did not pursue a claim at trial for psychological sequelae flowing from his work injury.
The second defendant relied on this evidence in support of a submission that pain and suffering damages for the low back injury should be assessed in the context of Mr Muller’s history of psychological symptoms and the impact of those symptoms on his enjoyment of life. While the psychological symptoms recorded in two entries in the GP notes, and in brief reports of counselling sessions by the psychologist in 2014, are a part of Mr Muller’s history, and generally relevant in that sense, they are not particularly significant to the assessment of damages. Mr Muller’s experience of physical pain and functional restrictions associated with the injury to his low back was not subject to any significant or successful challenge. The unrelated psychological symptoms are modest, particularly having regard to the very limited history of treatment.
Mr Muller described his enjoyment of work, particularly in his last job, and submitted his engagement in employment as a truck driver was a relevant factor to take into account in the assessment of pain and suffering damages. The defendants argued the reason Mr Muller stopped work was unrelated to his back injury. I accept that despite experiencing significant continuing low back symptoms Mr Muller was able to cope with light work, and that he lost his last job because of the incident in which he suffered injury to his mid back and the serious shoulder infection. On the other hand I also accept Mr Muller experienced serious low back pain when he was working and required significant analgesic medication, some of which he should not have been using while driving. The low back injury left Mr Muller at risk in the labour market, and it is unsurprising that he has been unable to sustain suitable employment since the incident.
The defendants emphasised Mr Muller’s low back injury has been treated conservatively, and that surgery has not been performed and is not currently recommended. Mr Muller submitted he was unable to enjoy the benefits of surgery, having been found unsuitable because of his weight. I accept that apart from the transforaminal cortisone injection arranged by Mr Chan treatment to date has been conservative, consisting of prescription of medications and physiotherapy. Mr Muller has required significant amounts of medication to cope with his low back symptoms. He now faces the prospect of regular radiofrequency denervations performed by Dr Todhunter. It is unclear what level of pain relief these treatments may achieve.
Mr Muller appeared to me to experience significant low back pain when giving evidence and later when sitting in the body of the Court for the balance of the trial.
Figures submitted by the parties as a reasonable assessment of pain and suffering damages were Mr Muller not less than $350,000; TNT $200,000; and Redstar in the range $100,000 to $150,000. Klosed did not submit a figure.
Mr Muller has suffered continuing and at times severe low back pain and left leg symptoms since March 2015. I accept Professor Bittar’s opinion that Mr Muller will continue to experience significant pain and disability into the foreseeable future which is likely to require treatment by periodic radiofrequency denervations, prescription of analgesic medication and physiotherapy. I award Mr Muller damages for pain and suffering in the sum of $275,000.
Pecuniary damages are agreed at $190,000. The total assessment of damages to Mr Muller is $465,000.
Conclusion
I have assessed Mr Muller’s entitlement to damages at $465,000. Liability for those damages will be apportioned 10% to Klosed, 45% to TNT and 45% to Redstar. I will hear from the parties as to the appropriate orders, including as to costs.
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