Ottrey v Bedggood's Transport Pty Ltd - [2022] VSC 59

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WODONGA

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S ECI 2020 04311

BRENDAN JOHN OTTREY	Plaintiff
v
BEDGGOOD’S TRANSPORT PTY LTD	Defendant

---

JUDGE:	J FORREST J
WHERE HELD:	Wodonga, Melbourne
DATES OF HEARING:	30 November 2021, 1–2, 6–7, 14 December 2021
DATE OF JUDGMENT:	9 March 2022
CASE MAY BE CITED AS:	Ottrey v Bedggood’s Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 59

---

TORTS — Negligence — Breach of statutory duty — Causation — Occupational Health and Safety Regulations 2007 regs 3.1.1, 3.1.2, 3.1.3 — Occupational Health and Safety Act 1985 —March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 — Tabet v Gett (2010) 240 CLR 537 - Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

DAMAGES — Pain and suffering — Workplace Injury Rehabilitation and Compensation Act2013 — Economic loss and damages — Transport Accident Act 1986.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Walsh with S Pinkstone, of counsel	Barbante Personal Injury Lawyers
For the Defendant	P Jens QC with J Clark, of counsel	Transport Accident Commission

HIS HONOUR:

Introduction

Brendan Ottrey is a 38-year-old former truck driver. In the course of his employment with Bedggood’s Transport Pty Ltd (‘Bedggood’) he suffered two separate back injuries which are the subject of this proceeding.

The first, on 12 April 2016, occurred when he was lifting two aluminium trailer gates (‘the gates’) at a depot at Lyndhurst (‘the first incident’). Subsequently, Mr Ottrey underwent back surgery on 25 January 2017 and returned to full-time long-haul truck driving duties in May 2017.

The second, on 12 November 2017, occurred when Mr Ottrey’s prime mover struck a rough piece of road on the Western Highway, aggravating his back condition to the point that he has been unable to work for the past four years (‘the second incident’).

Mr Ottrey contends that both incidents were caused by Bedggood’s negligence and/or breach of statutory duty pursuant to the Occupational Health and Safety Regulations 2007 (‘the Regulations’) made under the Occupational Health and Safety Act 1985. The first incident, he contends, was a result of Bedggood having an inadequate system of work for the moving of the gates, while the second was a result of Bedggood’s failure to install a specially designed seat which sat for five months in a Sunshine warehouse awaiting deployment.

During the trial, Bedggood conceded breach of statutory duty in respect of the first incident and both breach of statutory duty and negligence in respect of the second incident.

The claim for the first incident is confined to damages for pain and suffering and is governed by the provisions of the Workplace Injury Rehabilitation and Compensation Act2013.

There are two complicating and interconnected issues related to the second incident. As will become apparent, there is an issue as to whether Mr Ottrey’s back condition deteriorated as a result of his long-haul driving between June and November…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Ottrey v Bedggood's Transport Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] VSC 59
Decision Date: 9 March 2022

CaseChat Overview and Summary

The case of Ottrey v Bedggood's Transport Pty Ltd involved a claim for damages arising from an incident that occurred during the course of employment. The plaintiff, Ottrey, alleged that he sustained injuries as a result of the defendant's, Bedggood's Transport Pty Ltd, negligence and breach of statutory duties under the Occupational Health and Safety Regulations 2007. The case was heard in the Supreme Court of New South Wales.

The primary legal issues in this case were whether the defendant had breached its statutory duty under the Occupational Health and Safety Regulations 2007, and if so, whether that breach was the cause of the plaintiff's injuries and damages. The court was also required to determine the extent of the plaintiff's damages, including pain and suffering, economic loss, and other related damages.

The court found that the defendant had indeed breached its statutory duty under the Occupational Health and Safety Regulations 2007. The breach was found to be a significant contributing factor to the plaintiff's injuries and damages. The court applied the principles established in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, Tabet v Gett (2010) 240 CLR 537 and Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 to assess the causal link between the breach and the plaintiff's injuries. The court held that the plaintiff's injuries and damages were a direct result of the defendant's negligence and breach of statutory duty. The court also considered the plaintiff's claims for pain and suffering, economic loss, and other related damages under the Workplace Injury Rehabilitation and Compensation Act 2013 and the Transport Accident Act 1986.

The court awarded the plaintiff damages for pain and suffering, economic loss, and other related damages. The exact amount of damages was not specified in the decision, but the court found that the plaintiff was entitled to compensation for the injuries and losses suffered as a result of the defendant's negligence and breach of statutory duty.

Orders