Ottrey v Bedggood's Transport Pty Ltd

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 2017, or whether it was due to a single event on 12 November 2017, or a combination of both.

For reasons that are not entirely clear, this claim was confined to an allegation of liability for an injury caused on 12 November 2017 and not in respect of Mr Ottrey’s course of employment between June and November 2017.

This means that Mr Ottrey must establish that the 12 November 2017 event was a cause of the aggravation of his back condition. In addition, any damage (if found) to his back caused by his non-tortious employment duties between May and 11 November 2017 needs to be considered in determining the assessment of his damages — and particularly the question of his putative period of employment as a truck driver after November 2017.

The claim in respect of the second incident is for pain and suffering and pecuniary loss damages. It is governed by the provisions of the Transport Accident Act 1986.

Evidence at the trial

The following witnesses gave viva voce evidence:

· Mr Ottrey (plaintiff)

· Ms Lisa Slade (occupational therapist)

· Mr Patrick Lo (neurosurgeon)

· Dr Fitri Baki (general practitioner)

· Ms Debbie Davey (mother of Mr Ottrey)

· Mr Barry Bedggood (director of Bedggood)

· Mr Peter Nikolajew (Bedggood mechanic)

· Mr Stephen Young (previous employee of Bedggood)

· Dr Len Cubitt (consultant engineer)

· Mr Mark Dohrmann (ergonomist)

The following medical and expert witness reports and correspondence were tendered by the parties:

· Medical reports of Mr Patrick Lo dated 25 January 2017, 28 October 2019, 25 October 2021, 29 November 2021 and a number of letters concerning Mr Ottrey

· Accelerait, Original Employer Services Progress report of Mr Andrew Pyle dated 22 May 2017

· Accelerait, Workcover Household Help (Occupational Therapy) report of Ms Lisa Slade dated 30 May 2017

· Medical report of Dr David Barton dated 3 May 2019

· Medical reports of Dr Paul Verrills dated 17 June 2019, 9 November 2019, 3 February 2020, 1 April 2020, 8 April 2020, 10 June 2020, 12 April 2021, 29 November 2021 and a number of letters

· Medical report of Mr John O’Brien dated 20 November 2019

· Medical report of Dr Nigel Strauss dated 15 January 2020

· Medical reports of Dr Fitri Baki dated 7 April 2020, 26 July 2021, 24 August 2021 (including report of Associate Professor Umberto Boffa dated 23 December 2019)

· Medical report of Mr Cameron McGregor dated 26 June 2020

· Medical reports of Mr Thomas Kossmann dated 4 July 2020, 1 June 2021, 29 October 2021, 30 November 2021

· Medical reports of Dr Richard Sullivan dated 4 June 2021 and 19 November 2021

· Medical reports of Mr Kevin Siu dated 2 August 2021, 12 October 2021

· Medical report of Dr Nigel Strauss dated 18 August 2021

· Various correspondence between Dr Seong Lin Choy, Mr Craig Timms, Mr Duncan Moodie, Dr Jon Teo, Dr David Jones and Dr Fitri Baki

· IPAR Functional Capacity Evaluation Report and Vocational Assessment Report dated 2 August 2021

· Expert witness reports of Mr Mark Dohrmann, ergonomist, dated 28 July 2021, 13 October 2021, 22 October 2021

· Expert witness reports of Dr Len Cubitt, engineer, dated 15 August 2019, 2 October 2021, 13 October 2021, 28 October 2021, 7 November 2021 and a number of letters

Mr Ottrey’s background

Mr Ottrey was born on 28 May 1973 and was educated at rural primary and high schools to the completion of year 10.

After leaving school, he engaged in a variety of differing tasks, mainly involving use of his manual labouring skills. His employment in rural Victoria was fairly constant. In 2009, when working as a farmhand on a property near Bairnsdale, Mr Ottrey injured his back and had several months off work.[1]
[1]T91.

He recovered without any residual incapacity and subsequently worked as a fencing contractor, a timber worker and then at a hotel at Rosedale.[2]
[2]T91–2.

Mr Ottrey’s employment with Bedggood

Bedggood has been in the transport business for over 30 years. Mr Barry Bedggood is the managing director and his son, Mr Craig Bedggood, is the operations manager.[3] Bedggood operates depots at Maffra and Hallam. The main depot is a large yard on Station Street, Maffra. Hallam is a subsidiary and smaller depot.[4]
[3]References in these reasons to ‘Mr Bedggood’ are to Mr Barry Bedggood.
[4]T93.

Bedggood’s ‘full crew’ consists of 35 employees with 25 prime movers and four tray trucks.[5]
[5]T419.

In November 2011, Mr Ottrey obtained part-time employment as a driver with Bedggood. He commenced carrying out local work on a part-time basis and then in 2012 commenced on a full-time basis. Later that year he commenced long-haul interstate work.

By 2013, Mr Ottrey’s hours and income had increased significantly. He was driving interstate regularly, using a Bedggood owned and maintained Kenworth prime mover with a trailer, usually carting logs or general freight.

In January 2015, he hit a hurdle when his licence was disqualified, and he was unable to drive for eight months. He returned to work in August 2015 and went back to interstate truck-driving duties.[6]
[6]T96.

In general terms, the interstate driving for Bedggood involved:

· driving to the depots at Hallam or Maffra to pick up the prime mover and trailer;

· driving the prime mover and trailer from either Hallam or Maffra to the particular destination — often general freight on a Tautliner trailer or logs; and

· where necessary, particularly when using a Tautliner trailer, assisting in the loading of the trailer.

Mr Ottrey loved his work as a driver and Mr Bedggood described him as a ‘very good worker’.[7]
[7]T420.

The first incident: 12 April 2016
The happening of the incident

Mr Ottrey had driven his unladen rig — a Kenworth prime mover with an approximately 15 m long Tautliner trailer (‘the trailer’) — to an organisation known as ‘NPD’. NPD was located at Monash Drive, Lyndhurst and Mr Ottrey was required to assist in the loading of general freight onto the trailer.

The photographs below show the trailer.[8] Of particular note are the gates which are stored below the trailer (in a gate holder shown to the left of the first photograph and clearly seen in the centre of the second photograph) and retrieved by the driver and deployed on the trailer during the loading process (as shown in the first photograph). There is slight disagreement about the weight of a gate, but it is generally accepted that each gate weighed around 11kg; some might be as heavy as 14kg and others as light as 10kg, but the average was 11kg.

[8]Exhibit P58.

This type of trailer often carried general freight, which was shrink-wrapped and palletised. Assuming a full load, it would carry approximately 48 pallets. The physical aspect of the loading operation was carried out by NPD staff using a forklift to transport the pallets to the trailer. It was, however, the responsibility of the Bedggood driver to secure the load onto the trailer. With a full load, six gates would be used on each side of the trailer.

The pallets were loaded progressively from the front to the back of the trailer and the gates placed in position by the driver during that operation.

Once the gates were in position, a strap would be utilised to ensure that the gates pressed firmly against the palletised load, which would usually be located a couple of centimetres from both the gate and the edge of the trailer.

The system of work adopted by Mr Ottrey was to retrieve the gates (usually two at a time) from the gate holder and carry them to the point where they would be placed in position on the trailer.

On 12 April 2016, Mr Ottrey retrieved the first two gates from the gate holder with the intention of carrying them to the other side of the trailer and then positioning them on the trailer, when at a point roughly adjacent to the front of the cabin of the prime mover he experienced a sharp stabbing pain in his lower back and down his leg. He found it difficult to walk and thought he had pulled a hamstring.[9]
[9]T107.

In Mr Ottrey’s evidence-in-chief he described the onset of his back pain as follows:

As I was carrying the gates around, I felt significant pain coming down my back, into my leg.[10]
Just a sharp, stabbing pain down my back and started going down my leg.[11]

[10]T104.

[11]T105.

He finished the loading operation and then drove the prime mover and loaded trailer back to the Maffra depot.

Mr Ottrey’s description of the circumstances of this incident is consistent with the account in his claim form for compensation filed with Bedggood’s insurer three months after the incident.[12]
[12]Exhibit P1.

Immediate and short-term consequences of the first incident

Mr Ottrey told Mr Bedggood of the problem with his back in May 2016.[13] Mr Bedggood suggested that he try Voltaren and go back to work. This he did until August 2016 when the pain had, to use his expression, become ‘chronic’.[14]
[13]T107.
[14]T109.

Mr Ottrey, in July 2016, saw his local general practitioner, Dr Qazi.[15] A CT scan was then carried out on 4 August 2016 and he was advised by his doctor to stop work and seek specialist treatment.[16] The CT scan revealed a significant disc protrusion at L5/S1 with nerve root compression and impingement in general terms. He was subsequently referred to Mr Patrick Lo, a neurosurgeon, who saw him on 11 November 2016 and diagnosed a disc prolapse. Mr Lo advised that Mr Ottrey undergo surgery.
[15]T108; Statement of claim, [15].
[16]Statement of claim, [16].

On 25 January 2017, at Melbourne Private Hospital, Mr Lo performed an L5/S1 deep compressive laminectomy and microdiscectomy.[17] Mr Lo retrieved the disc fragment which was impinging on the nerve. Mr Ottrey has been left with a vertical 3–5cm scar on his lower back.[18]
[17]Exhibit P16.
[18]T330.

Subsequently, Mr Ottrey underwent rehabilitation and for part of that time was cared for by his mother, Ms Debbie Davey, in northern New South Wales. He returned to his home at Maffra and made a good recovery. By March 2017 he was riding an off-road motorcycle and contemplating a return to work.[19]
[19]T213–4.

His return to work was managed by a rehabilitation organisation, Accelerait, in consultation with Mr Lo. By April 2017, Mr Lo believed Mr Ottrey had made a good recovery and could go back to work on restricted duties.

There was a short debate between Accelerait and Mr Lo as to when Mr Ottrey should go back to work. Eventually he returned to work on limited hours and restricted duties on 1 May 2017. This involved short local trips and limited physical activity. Mr Lo was kept informed as to his progress. By mid-May 2017, Mr Ottrey resumed interstate driving.[20]
[20]T111; T274–5.

On 22 May 2017, Mr Andrew Pyle, an occupational rehabilitation therapist, noted in a report to Accelerait that Mr Ottrey was experiencing ‘some ongoing pain with his injury lower back which current limits his ability to complete his full role’.[21]
[21]Exhibit P4.

On 19 June 2017, when Mr Ottrey had returned to full time duties as an interstate driver, an MRI was generally unremarkable, with ‘evidence of part L5/S1 laminectomy’, and a ‘small residual central disc bulge’.[22]
[22]Exhibit P42 (Mr Ottrey’s MRI of 19 June 2017 is attached to Dr Baki’s report).

Liability of Bedggood for the first incident

In final submissions it was conceded by senior counsel for Bedggood that:

· there was a clear breach of the Regulations insofar as Bedggood’s failure to carry out a risk assessment was concerned;[23]

· the manoeuvring of the gates by Mr Ottrey constituted hazardous manual handling and therefore regs 3.1.1, 3.1.2 and 3.1.3 of the Regulations were engaged; and

· the manner in which Mr Ottrey was engaged in his work was a cause of the injury.[24]

[23]T607; T609.

[24]T609.

There is no evidence that Bedggood at any time conducted a risk assessment of any of the duties carried out by its employees notwithstanding that it had been in business for decades and employed over 30 drivers. The concession as to the breach of the Regulations was hardly magnanimous.

A breach of reg 3.1.1 — the failure to carry out a risk assessment — does not of itself mean that the breach is productive of damage. Usually, this requirement can be established by progressing to reg 3.1.2, which requires an employer to ensure that the risk ‘of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable’. In other words, if the risk assessment had been carried out and the risk identified, then Bedggood was obliged to eliminate so far as was reasonably practicable the risk posed by the relevant manual handling task — in this case, the lifting of the gates.

I am comfortably satisfied that Bedggood breached regs 3.1.1 and 3.1.2. A putative risk assessment would, as Dr Len Cubitt, a consultant engineer, opined, have identified that the carrying of two gates with a minimum combined weight of 22kg and a maximum combined weight of 30kg posed a risk of a musculoskeletal disorder.[25]
[25]T522–3.

Dr Cubitt suggested several measures which could have been undertaken to reduce the risk of injury — the most obvious one that appeals to common sense was to give an instruction to employees that they were to lift one gate at a time.[26] It is difficult to see how this would have impeded the carrying out of the loading operation — if it did it would only be in terms of time and that does not of itself militate against the implementation of such a system. It would, self-evidently, have halved (or perhaps, reduced by two thirds) the weight the employee was required to carry. No counterproposition was proffered by counsel for Bedggood in final submissions.
[26]T521–2.

I disregard the evidence of Mr Mark Dohrmann, an ergonomist, which was essentially to this effect:

Whether or not there was a risk associated with carrying one or two gates depends largely on how they were carried, and I want to make that point first. If, for example, he carried two gates, you can carry two gates of 11 kilograms, in my opinion, under your arms in line with your ankles, virtually with minimal risk… So it depends on the posture and the movements associated with the weights.[27]

[27]T523.

This proposition is at odds with the statutory obligation imposed under regs 3.1.1 and 3.1.2. It was the job of the employer to identify the risk and then take measures ‘as far as is reasonably practicable’ to ameliorate it. Bedggood did neither and a simple instruction to the drivers, including Mr Ottrey, as to the safe way in which to carry out the task was all that was required.

In my view, this is as clear a case of statutory breach as one might encounter, and Mr Ottrey has established a breach of statutory duty that caused the injury to his lumbar spine.

I should add for completeness that generally the same considerations apply in relation to Mr Ottrey’s case in negligence. McLean v Tedman[28] remains good law, as the recent discussion of the Western Australia Court of Appeal in Ward v Watson[29] demonstrates. In this case nothing was done by the employer to maintain, devise or enforce a system of work which would have reduced the risk of injury to its employees.
[28](1984) 155 CLR 306. See also Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424, [54], [62]; Czatyrko v Edith Cowan University (2005) 79 ALJR 839, [14].
[29][2021] WASCA 44, [96]–[104].

Contrary to Bedggood’s submission, the fact that Mr Ottrey was a relatively experienced driver carrying out a simple task did not relieve Bedggood of these basic common law obligations.[30] Bedggood breached its duty of care to Mr Ottrey and that was a cause of the injury to his lumbar spine.
[30]Ibid [145].

The second incident: 12 November 2017 and the events leading up to it
The pleaded case

In the further amended statement of claim it is alleged that ‘between May 2017 and November 2017 the Plaintiff was required to drive a truck with a defective and/or an unsafe seat which placed stress and strain on the Plaintiff’s spine and particular his lower back’.[31] The pleading goes on to allege that this exposed Mr Ottrey unnecessarily ‘to the risk of aggravation to his lower back condition which had been the subject of surgery in January 2017’.[32]
[31]Further amended statement of claim, [3].
[32]Ibid [4].

Notwithstanding this pleading, in a subsequent paragraph the injury was said to have arisen on a specific date as a result of a specific event: 12 November 2017 when ‘the Plaintiff was required to perform long distance truck driving duties whilst sitting on a defective and/or an unsafe seat as a result of which he experienced the further aggravation to his lower back’.[33] This was defined as the second incident.
[33]Ibid [7].

Undoubtedly, it would have been open to Bedggood to have sought to have one or more of these paragraphs struck out on the basis that it was embarrassing to plead to.

In any event this was unnecessary as, at the commencement of the trial, senior counsel for Bedggood raised the issue as to the way in which Mr Ottrey’s case was to be presented at trial. He pointed to the potential inconsistency between the two assertions in the context of the relevant legislative scheme.

Counsel for Mr Ottrey then made it clear that he intended to rely solely upon the second incident as the event in respect of which it was necessary for Mr Ottrey to prove negligence and consequential damage. This, I was told, was consistent with the Serious Injury Certificate that had been granted by the Transport Accident Commission pursuant to s 93 of the Transport Accident Act.

Background and findings

I return now to the chronology of events between June and November 2017.

After returning to work, and for approximately three weeks, Mr Ottrey drove only on local runs. At the outset he did not carry out any of the heavier tasks (such as the lifting of the gates).

In June 2017, Mr Lo advised Mr Ottrey and Bedggood that Mr Ottrey could return to full-time, unrestricted duties involving truck driving, provided an ergonomically safe driver’s seat was installed. I shall return to the saga involving the provision of the seat shortly.

Mr Lo reviewed Mr Ottrey following his return to work in June 2017: ‘at that point, I thought that he had made a good recovery, so much so that I discharged him from further reviews’.[34]
[34]T335.

Dr Seong Lin Choy, Mr Ottrey’s general practitioner based in Maffra, cleared Mr Ottrey to return to normal duties on 5 June 2017.

Around that date Mr Ottrey resumed full-time, long-distance truck driving.[35] He drove a designated prime mover — a Kenworth registration 1BP9PC (‘9PC’), usually with a Tautliner trailer — on interstate runs. For present purposes it only need be observed that throughout the whole period of his interstate driving up to November 2017 it was fitted with a standard Kenworth prime mover seat. An ergonomic ISRI seat purchased in May 2017 was never fitted within the prime mover.
[35]T275.

So, Mr Ottrey, in effect, undertook his full-time normal duties from June 2017 for the next five months — until November 2017. He regularly drove 3,500–4,000km a week taking loads to most eastern capitals and Adelaide, working 72–76 hours per week.

Mr Ottrey did not seek treatment for his back condition from his general practitioner, Dr Choy, between 5 June 2017 and November 2017.[36]
[36]T412.

In his evidence-in-chief, he said as to his back condition between May and November 2017:

It was fine. I’d made a good recovery… I had minimal pain when that lumber support was sitting on me scar tissue… It was just there every day, but treatable by Panadol[37]
It [the Panadol] just took that little twinge and niggle and scar tissue pain away.[38]

[37]T126.

[38]T127.

Mr Ottrey said that he had no pain in his legs, buttocks, thighs, feet or toes between May and November 2017.[39] However, the lumbar support of the seat in the prime mover caused some issues with his operation scar tissue:

The lumbar support in the back part of the seat … it sat on my scar tissue.[40]
The truck’s got an air compressor under the bonnet … pull a switch and it pumps up that cushion in the back of the seat for lumbar support, and that was sitting on my injury zone.[41]
Every time I went over bumps or the chair rocked backwards and forwards … I felt [a] little pain coming from that lumbar support.[42]

[39]T127.

[40]T118.

[41]T119.

[42]T119.

After a while and because of the pressure on his back and the surgical scar, Mr Ottrey drove with the driver’s seat fitted in the ‘rigid’ position — without any air suspension.

On 12 November 2017, Mr Ottrey was deployed by Bedggood on the Adelaide run from Hallam, having driven from his home at Maffra to pick up the rig.

In evidence-in-chief, Mr Ottrey said he had been driving for about four and a half hours.[43] His vehicle was travelling at about 100 kph.[44] He described the incident as follows:

I hit an uneven section of a road and the seat bottomed out and my back went pop and [the] pain was all back.[45]
I remember … pain down the back, that popping sensation straight down me back and straight down me leg.[46]
It wouldn’t have been any more than 25kms past Nhill … It went from having a little niggling pain of being able to take two Paracetamol to I was on Panadeine Forte that night when I got to Adelaide … I had lower back pain, right buttocks pain radiating all the way down to my foot ... pins and needles … It was instant … It was horrific.[47]

[43]T133.

[44]T136.

[45]T133.

[46]T136.

[47]T135.

In cross-examination, his evidence was the same:

Counsel: And what you say is … that you were going fine until the time you went over the bumps at Nhill?
Plaintiff: That’s when I felt the pop in me back and the real experience of onset pain. It was horrific. [48]

[48]T261–2.

According to Mr Bedggood, Mr Ottrey rang him shortly after reaching Adelaide:

I, uh, received a phone call from Brendan on the, uh, a Monday morning, um stating that’d, um, his back was troubling him again. Um, that he’d hit some pothole on the road over to Adelaide and jarred the truck.
I asked him how serious it was. Um, he said ‘oh, I’ll be able to get home’.
It was a phone call … I want to say 7.30 in the morning.
He just told me this — he was having a bit of trouble with his back… he hit a bump on the way over and, um, he jarred his back. And it was… it was aching.[49]

[49]T433–4.

After he returned to Maffra, Mr Ottrey saw Dr Choy on 24 November 2017. Dr Choy described the onset of the problem as follows:

Brendan has experienced another bout of back pain, started 12th Nov 2017 while driving in his truck. He now has constant pain and numbness in his Right leg.[50]

[50]Exhibit P12.

In his WorkCover claim form filed with Bedggood in January 2018, Mr Ottrey said as follows:

Was driving truck hit bumps in road and hurt back.[51]

[51]Exhibit P2.

In cross-examination, Mr Ottrey said as follows in relation to any continuing problems with his back between May and November 2017:

Counsel: Now, we heard yesterday that you were able to continue with your duties between May until November without difficulty?

Plaintiff: Yes
…
Counsel: So you were able to then drive this truck without any issues with your back?

Plaintiff: Only other than the scar tissue we were talking about.[52]
[52]T205.
…
Counsel: But apart from it rubbing on your scar, is that a correct description?

Plaintiff:         Yes
Counsel:         And causing some discomfort?
Plaintiff:         Yes. Minimal pain.
…
Counsel:[W]hat I’m putting to you is that apart from this pain that you were getting from the lumbar support on your scar, you had no trouble driving the truck?

Plaintiff: No, I had no extra pain, no.[53]

[53]T206.

In substance, his evidence was that he had minimal problems after his return to full-time truck driving until there was a sudden flare up of back pain as a result of striking a rough piece of road on the Western Highway.

However, and this is where things get murky, in contradistinction to this relatively straightforward account, there is a considerable body of evidence to the effect that his back continued to cause him real problems from May to November 2017 due to his driving work.

Some of this confusion was driven by Mr Ottrey’s lawyers repeatedly seeking the opinion of treating doctors and medico-legal experts as to the effects on the lumbar spine of continuous driving over this period.

In September 2019, Mr Ottrey swore an affidavit in support of an application under s 93 of the Transport Accident Act. He said as follows in relation to the aggravation of his back condition:

Between July 2017 and October 2017 I continued to work as an interstate semi- truck driver. During this time I experienced further aggravation of my lower back condition particularly as a result of driving with an unsafe seat which had the effect of jolting and damaging my back on a daily basis. Further, the seat that I was sitting on was defective and had no padding and no cushioning. The truck had done at least 700,000km and was at the end of its life.
In November 2017, I returned to Dr Choy at the Johnson Street Clinic (Maffra) and complained of ongoing problems in my lower back which were particularly problematic from early November 2017. Dr Choy recommended I return to see Mr Lo. Dr Choy also arranged for a further MRI to be performed which I understand was performed on or about 30 November 2017.[54]

[54]Exhibit D16. Affidavit in support of a serious injury application by Mr Ottrey pursuant to s 93(4) of the Transport Accident Act 1986 (Vic), [25]–[26].

This version was consistent with other accounts of Mr Ottrey and that of his mother, Ms Davey.

Ms Davey gave evidence that upon returning to full-time duties after May 2017 her son complained to her that his pain started to increase during longer interstate trips. Ms Davey said that on one occasion:

[h]e’d be stooped and he’d be stretching out his back and you could see by his face that he was in pain.[55]

[55]T394.

Ms Davey also said that Mr Ottrey told her via telephone that the pain continued to worsen, and she noted a change in his personality.[56]
[56]T395.

This tallied with Mr Ottrey’s account to Mr Lo on 6 December 2017, recited in his report:

It has only been 6 months since I last saw him and he was doing well until the last three weeks when he found that his left leg pain recurred. He put this down to a lot of interstate travelling and I, too, agree that the long-distance sitting and driving is no longer for him.[57]

[57]Exhibit P18. See also Mr Lo’s letter to Dr Choy of 6 December 2017.

Mr Lo also said:

[A]ccording to what he told me … he was doing well until three weeks prior to presenting to me, uh, and he had put it down to… I think driving interstate again … driving long distances, sitting and driving, uh, and he felt pain again.[58]

[58]T336.

In cross-examination, the following exchange occurred:

Counsel:[A]nd you got not [sic] history from him that his symptoms concerning his back came on suddenly, after he’d been over some bumps, but rather they developed over two or three weeks of the last part of his driving. Is that fair?

Mr Lo: Yeah, I didn’t get any of that history.
Counsel: That’s — you didn’t get any history about suddenly bumps and then a problem?

Mr Lo:           No, he didn’t — I didn’t document that.
Counsel:         [Y]ou didn’t know anything about going over bumps?
Mr Lo:           Correct, I didn’t know anything about that.[59]

[59]T346–7.

Then, in November 2020, Mr Ottrey’s lawyers filed the statement of claim in this proceeding (parts of which I have referred to) — presumably drafted on instructions from their client:

Between November 2012 and November 2017 the Plaintiff sustained injury whilst performing his work duties as a truck driver with the Defendant and in particular as a result of the following incidents:
…
(b) Between May 2017 and November 2017 the Plaintiff was required to perform long distance truck driving duties whilst sitting on a defective seat as a result of which he experienced the further aggravation to his lower back;

as a result of which the Plaintiff sustained injury…[60]

[60]Statement of claim, [7].

There are also several other statements made by Mr Ottrey or his lawyers to doctors as to the aggravation of his back condition due to continuous driving with a defective seat, which it is not necessary to recount.

The result is that the picture of events between June and November 2017 is confusing, if not confused. However, I am satisfied of the following matters:

(a) There was an incident on 12 November 2017 in which Mr Ottrey’s vehicle struck a hole on the Western Highway causing his back to jar and producing symptoms in his back and leg almost immediately. This was the version that he swore to in evidence and was generally consistent with his descriptions to Mr Bedggood and Dr Choy — all within days and weeks of the incident. Accordingly, I accept his evidence set out at [68] and [69] as to the circumstances surrounding the sudden onset of pain on 12 November 2017.

(b) Between June and November 2017 Mr Ottrey experienced minor to moderate problems with his back particularly in the region of his scar and these inconvenienced him, as observed by his mother. However, the problems were not so significant as to cause him to seek medical attention. Accordingly, I accept that he may have had some difficulties in sitting whilst driving the prime mover during that period, however these were insufficient to inhibit his capacity to work as a driver. This phenomenon may be explained by Dr Paul Verrills (Mr Ottrey’s pain management specialist) who in his report of 12 April 2021 said:

The initial disc prolapse occurred as a result of heavy lifting on or about 12.04.16. If he had not previous [sic] had back pain, then this incident was a new injury. If there has been previous back pain and the incident, if it was indeed a heavy lift, has led to acceleration and deterioration of the pre-existing disc degeneration. If his work before then was heavy or associated with vibration, then work as predisposed to the disc prolapse.
Unless the work on his return was heavy, the back condition has run its natural course. Some people continue to get low back and referred pain after a disc prolapse. Back pain is typically exacerbated by static posture, such as sitting or standing. Extremely heavy work and exposure to vibration contribute to deterioration of lumbar disc pathology by increasing the normal rate of disc degeneration. Otherwise, static posture when driving and sitting cause symptoms but not further injury.[61]

(c) The second incident caused an aggravation of the injury to the lumbar spine as a result of the first incident; or a further injury to Mr Ottrey’s lumbar spine. This, as will be seen, is the diagnosis (with varying emphasis) of each of his treating doctors and the medico-legal specialists engaged by both Mr Ottrey and Bedggood (which I will return to shortly).

(d) This further injury or aggravation caused him back pain with referred pain and numbness in his right leg, as described by him subsequently to Dr Choy at the 24 November 2017 consultation. It is also confirmed by an MRI scan taken on 27 November 2017.[62]

[61]Exhibit P35.

[62]Exhibit P49 (Mr Siu’s reference to the November MRI).

Liability and causation

Whilst liability for the failure to install the replacement ISRI seat was ultimately admitted by Bedggood, it is necessary to examine in a little detail the evidence to understand the causation issue which remained live: whether the ISRI seat would have made a difference to the happening of the injury in the second incident.

In this regard there were two disputed factual issues. The first related to the condition of the seat of 9PC between May and November 2017, and the second to its proposed replacement with a seat tailored to accommodate Mr Ottrey’s back condition.

The condition of the seat of 9PC during the period May to November 2017

A Kenworth prime mover (of whatever design) is not fitted with an air-suspension driver’s seat (described as an ‘air-ride’). However, the standard driver’s seat can be inflated and adjusted electronically. The photographs below show the driver’s seat as at 16 May 2017:[63]

[63]Photo taken by Ms Slade, the occupational therapist.

Mr Ottrey gave evidence that both the truck and its seat were ‘at the end of its life’.[64] He said the seat was ‘the bottom of the line’ and that it had ‘no padding in the — in the bottom where you sat. So, you’d be sitting on steel, nearly’.[65] When asked about the condition of the seat in cross-examination, Mr Ottrey said as follows:

It was properly upholstered. Never had rips or tears in it, but it never had cushioning in it.
…
I could feel when I was in the light duties, that I could feel it had no padding. You could see it had no padding … not no padding, I shouldn’t say. I will correct myself. Minimal padding.[66]

[64]T132.

[65]T117–8.

[66]T241–2.

Mr Peter Nikolajew, a retired mechanic previously employed by Bedggood, gave evidence that he removed the previous driver’s personal seat and installed the original seat back into 9PC on 19 November 2016.[67] Mr Nikolajew said ‘the following few days’ after Mr Ottrey returned 9PC and finished at Bedggood, he observed that the seat was ‘down flat on the — on the bottom of its position’ and ‘deflated’.[68] He said of the seat’s condition:

Ah, well, it wouldn’t have been anything bad because we do here change — if the seat is — is damaged in any way or ripped and that, we do our utmost to get it repaired.[69]

[67]T491–4.

[68]T481–2.

[69]T483.

Mr Stephen Young gave evidence as to the condition of the original seat after Mr Ottrey left Bedggood in November 2017. Mr Young worked as an interstate truck driver for Bedggood for the period January 2018 – August 2019. He was assigned 9PC in January 2018 and gave evidence that the condition of the seat was ‘fine’:[70]
[70]T498.

Counsel: And did the seat — insofar as the devices it had with it for moving it, adjusting it, et cetera, did it work?

Mr Young: Yeah, everything was fine, it had an air cushion-type situation. So, yeah, no, it was good.

…

Counsel: And insofar as the seat that this one had — the 9PC unit had, did that work the way it was meant to do?

Mr Young: Yeah. Yeah, it moves up and down. You could adjust it forward or reverse, whatever you wanted … yeah, it was a good seat.[71]

[71]T498.

Mr Bedggood said that the original Kenworth seat was removed at the ‘start of the life of the truck’.[72] This would mean 2014. Upon removal the original seat was ‘wrapped up in plastic and — and put up on top of the storage at the — in the workshop … it was not used’.[73] He said that when the original seat was put back in 9PC shortly prior to Mr Ottrey returning to full-time duties it was in a ‘virtually brand new’ condition.[74]
[72]T428; T446.
[73]T446.
[74]T429.

Mr Bedggood also said of the seat:

Counsel: [A]re you able to say from your own knowledge what condition the seat was in when it was placed back in the truck?

Mr Bedggood: Yeah, it was virtually brand new.[75]
[75]T429.

…

Counsel: Have you got any record as to whether the original KAB seat was put in another truck or used in some way?

Mr Bedggood: It was wrapped in plastic and — and put up on top of the storage at the — in the workshop.

Counsel: Yes?

Mr Bedggood: And put back in on that date. It wasn’t put anywhere else.[76]
[76]T446.

…

Counsel: Your belief is that it was stored away and not used?

Mr Bedggood: Stored away and not used. That is correct.[77]

[77]T446–7.

Mr Lo, the treating neurosurgeon, consulted with Mr Ottrey in April 2017[78] and recommended to Bedggood’s WorkCover agent the installation of a custom-built form of seat — which advice I shall return to shortly.
[78]T332.

As a result, Accelerait, an occupational injury management organisation engaged by the WorkCover agent, investigated the need for the installation of such a seat. An Accelerait employee and experienced occupational therapist, Ms Lisa Slade, met and assessed Mr Ottrey on 16 May 2017. Then, with Mr Craig Bedggood, she inspected the existing seat of 9PC at the Bedggood Hallam depot.

Ms Slade told Mr Craig Bedggood of her concerns about the inadequacy of the existing given Mr Ottrey’s back condition. She committed this to writing in her report of 30 May 2017 (provided to Bedggood), which described the state of the seat:

The current seat in Mr Ottrey’s work truck does not provide adequate support with the foam seat base bottomed out and in need of replacement. Despite this if the current standard seat in his truck was replaced with the same model by his employer this would not provide adequate postural or suspension support to prevent symptom aggravation.[79]

[79]Exhibit P5.

At trial she expanded on this:

As documented in my report, that the foam in the seat was bottomed out… It’s compressed or, um, not providing the support that it needed to be.[80]
[T]he truck that [Mr Ottrey] had had only a single air lumbar adjustment, a single seat height adjustment and a single air suspension system or setting.[81]

[80]T304.

[81]T306.

In cross-examination, Ms Slade said:

I did document [during the assessment] that we used all of the adjustments that were available on the existing seat, or assessed all of the adjustments … And I didn’t make note in my report or notes that there was anything broken in those.[82]
…
You can see in seating, no matter what type of seating it is, whether the foam is compressed or whether it, you know, will spring back and things like that. With the photos you can see in the top-right one that there is a bit of a dip in it but I can by pressing … on the seat and seeing what the response is …[83]
Regardless of the seat base that was there, even as I said if that seat was replaced with a completely new one, the level of adjustment in it was not appropriate for his postural support needs, given his medical history … so seat base in terms of being able to tilt, um — so the big adjustments that were available in the ISRI seat that weren’t in the existing seat were you can adjust seat length, which is important for maintaining support ...[84]

[82]T319.

[83]T324 (referring to photographs contained in her report and included at [89]).

[84]T324–5.

This trial was conducted at Wodonga. Bedggood was able to make the prime mover, 9PC, available for inspection by the Court and the parties. It was not in dispute that the seat currently within the prime mover was that used by Mr Ottrey in 2017. Below is a photograph of the seat taken by one of the lawyers:

For my part, whilst I appreciated the opportunity to inspect the vehicle and the seat, I did not learn much more than this was a worn truck driver’s seat that was still being used by Bedggood drivers.

In reaching a conclusion about the condition of the seat during the latter half of 2017 it is not a question of quantity of persons saying the seat was ‘in good nick’, or the contrary. It is the quality of the evidence that matters.

In this regard, I have no hesitation in accepting the evidence of Ms Slade, who was independent of the parties, having been engaged by Bedggood’s WorkCover agent. She inspected the seat from the perspective of a person concerned with the safety and wellbeing of Mr Ottrey given his pre-existing back condition — and particularly his recent surgery. With respect to those who regarded the seat as being in good condition, I think that they approached it from a quite different perspective — namely no obvious deficiency that would prevent a driver with an uninjured spine from using the seat.

Ms Slade conducted a thorough inspection of the seat in May 2017 (when there was no question of litigation) with a view to determining whether it should be replaced with one which was in better condition and ergonomically designed. Thus, her attention was focused solely on the condition of the seat and its suitability for Mr Ottrey.

Ms Slade’s evidence is persuasive and sits comfortably with that of Mr Ottrey as to the difficulties he had with the seat over the ensuing months. He, of course, was the person who actually sat on the seat regularly and was able to gauge its deficiencies (or advantages) during that period.

Whilst I accept that both Mr Nikolajew and Mr Young gave evidence honestly, I have little doubt that they were looking at the condition of the seat as viewed from a quite different prism to that of Ms Slade. I do not accept Mr Bedggood’s description of the seat; he generalised and did not deal with the actual condition of the seat, other than asserting that it was ‘brand new’.[85] This cannot be reconciled with Mr Ottrey and Ms Slade’s description. Importantly, it pales when compared to Ms Slade’s close examination and independent observations.
[85]T423.

It is noteworthy that Mr Craig Bedggood was not called and his absence was unexplained. He was directly involved with Ms Slade at the depot and in the inspection of the existing seat. He was aware of her advice as to its condition and its replacement. This provides a further basis upon which to accept Ms Slade’s evidence as opposed to that of Mr Bedggood.[86]
[86]See Jones v Dunkel (1959) 101 CLR 298.

The recommendation for a new seat to be fitted to 9PC

On 12 April 2017, Mr Lo wrote to Bedggood’s insurance agent, Allianz, as follows:

This is a formal request for Brendan Ottrey to be allowed the use of a specialised chair when he returns to his truck driving duties. The item is an Isri 6860/870 Pro. He will require this specific chair to prevent further damage to his lumbar spine which has, thankfully, been successfully managed by a surgical decompression.
I would be grateful if you could consider this request favourably. Brendan will forward the details of the item and the costs directly to your offices.[87]

[87]Exhibit P17.

According to Mr Lo, this recommendation came about as a result of Mr Ottrey showing him a flyer promoting ISRI designed seats:

I would have recalled [Mr Ottrey] showing me, um, options, but I also professed to him I’m not an engineer[88]… He would have shown me this chair.[89]
[I]f you’ve got a seat that is specially designed to absorb certain forces, then you add to the cushioning of the spine. Once again, I say to you I am not an engineer, so I don’t know the ins and outs of specific chairs. All I know if the biomechanical of a human being. And in terms of biomechanical function of a human being, if you can somehow reduce the shock on the spine and reduce the force that could be transmitted to any spinal disc, then you’re at less risk of damaging your spinal disc and your spine as a whole. So that’s my comment with regard to this particular seat.[90]

[88]T332.

[89]T335.

[90]T338–9.

Armed with this information and consequent to her inspection of the seat of 9PC, Ms Slade’s report concludes:

Following this assessment of Mr Ottrey’s postural support, suspension and seating requirements in relation to truck seating at a level which would enable him to return to pre-injury duties of interstate truck driving, and with consideration on the VWA Guidelines and his personal circumstances, Accelerait – Occupational Injury Management recommends that Allianz Worker’s Compensation (VIC) Limited (Agent) considers funding:
•Purchase and installation of ISRI 6860/870 Pro Truck Seat with S06-1076 Mounting Bracket into his current work truck[91]
[91]Exhibit P5 (emphasis in original).

Following her inspection, Ms Slade said that on 25 May 2017 she provided her recommendation to Mr Craig Bedggood orally and in the following terms:

[Mr Ottrey’s] needs were above and beyond what a standard truck seat would be, for medical purposes … he needed additional adjustment and suspension in his seat to be able to return to pre-injury duties and hours. [Mr Bedggood] advised that if the seat was to be fitted then [Mr Ottrey] would need to take his truck to the supplier in Sunshine, ISRI Seats, um, and have them install the new seat.[92]
…
I advised that with — to Craig that even if the seat was replaced with a newer version, um, it still wouldn’t be suitable for [Mr Ottrey’s] medical and postural support needs, given his age, back surgery, and aim for a return to long distance interstate truck driving.[93]

[92]T309.

[93]T310–11.

Ms Slade said that on 26 May 2017, she informed Bedggood’s WorkCover agent of her recommendation and discussion with Mr Craig Bedggood.[94]
[94]T311.

Failure to replace the seat in 9PC

The purchase of the ISRI seat was authorised (and paid for) by Allianz on 31 May 2017.[95] The seat was available for collection by Bedggood from the Sunshine depot of Truck Art, the supplier and distributor of the ISRI seat. It remained there, uncollected, for five months.
[95]Exhibit P7.

Mr Ottrey identified four conversations with Bedggood management in relation to the replacement of the seat.[96] There was an initial discussion with Mr Craig Bedggood, following Mr Ottrey’s return to work in mid-May 2017, about having the seat assessed for his back injury.[97] Mr Craig Bedggood told him he was ‘game’ and that there was ‘nothing wrong with the original seat’.[98]
[96]T124.
[97]T120.
[98]T120.

Then on 31 May 2017, Mr Ottrey was told that Ms Slade’s recommendation of the ISRI seat had been accepted by Allianz.[99] Mr Ottrey approached Mr Craig Bedggood in the office at Maffra and told him the seat had been accepted.[100] He raised replacement of the seat with Mr Craig Bedggood again in June 2017 upon returning to fulltime duties:[101]

I’m whinging at Craig and — at Craig to fix this seat, and nothing’s getting done about it.[102]

[99]T122–3.

[100]T123–4.

[101]T125.

[102]T226.

Mr Ottrey said that Mr Craig Bedggood’s response was identical to that on the previous occasion: that he was ‘game’ and that there was ‘nothing wrong with the original seat of the truck’.[103]
[103]T123–4.

Mr Ottrey raised the question of the replacement of the seat again in August 2017 with either Mr Craig Bedggood or Mr Nikolajew and was told that Bedggood wanted the seat professionally fitted by ISRI seats in Sunshine, Melbourne.[104]
[104]T124; T278.

At the trial, Mr Bedggood said in relation to the replacement of Mr Ottrey’s truck seat:

We were told that he wanted a new seat put in the truck because the seat — he wasn’t happy with the seat.
…
We knew there was nothing wrong with the seat in the truck, it was the same as all the others seats in the truck. But Allianz was paying for it. To keep the peace and get Breno back to work we said, ‘well if Allianz are paying for the seat, no worries, just get the seat organised and get it into the truck’.[105]

[105]T452.

He said that Bedggood received a letter from Allianz (presumably) notifying him of the procedure for replacement of the seat:

[T]he procedure was that when Truck Art sourced the seat they would advise Allianz, who would then advise us that they’d sourced the seat. That didn’t occur for a period of time. When we were then advised that the seat was available we told [Mr Ottrey], because [Mr Ottrey] was the one driving the truck and knew where his movements were, so [Mr Ottrey] was advised, ‘Now the seat is available go to Truck Art and get it fitted when it suits you’. So it was left to [Mr Ottrey] to go in there and get the truck seat fitted.[106]

[106]T453–4.

In cross-examination Mr Bedggood said that neither he, nor anyone else from Bedggood, made any arrangements to collect and install the ISRI seat from Truck Art’s Sunshine depot.[107] It was his understanding that the insurance company had contacted Truck Art to fit the seat for Mr Ottrey.[108]
[107]T454.
[108]T455.

Putting to one side the legal responsibility for fitting the seat (patently that of Bedggood), it was never suggested in cross-examination of Mr Ottrey that it was his job to collect the seat and, it would appear, to organise to have it fitted.

The second incident: negligence

At the conclusion of the trial senior counsel for Bedggood, unsurprisingly, conceded both breach of duty and breach of statutory duty in respect of the second incident.[109] Indeed, the conduct of his client towards the health and safety of Mr Ottrey was egregious and, if permitted under the Transport Accident Act,[110] may well have merited an award of exemplary damages.
[109]T608–10.
[110]Section 93 prescribes the damages recoverable under the Transport Accident Act 1986 (Vic).

However, counsel for Bedggood, having abandoned the liability contest, contended that the failure of his client to install the ISRI seat had not been demonstrated to be a cause of any back injury or disability related to the second incident.[111]
[111]T610–3.

The second incident: causation

Determination as to whether a breach of duty can be translated into actionable damage and a consequential award of damages is governed by common law principles of causation under Australian law (the provisions of Part X of the Wrongs Act 1958 are excluded for cases brought under the Transport Accident Act).

The two leading cases concerning the common law test are the High Court decisions in March v E & MH Stramare Pty Ltd,[112] and Tabet v Gett.[113] In this case both counsel relied upon passages from Tabet. Counsel for Bedggood argued that, in truth, this was no more than a loss of chance case. The best Mr Ottrey could do was establish that the failure to install the ISRI seat within the prime mover meant he had lost the opportunity to avoid aggravating his back condition. Counsel for Mr Ottrey countered that the evidence when viewed as a whole meant that his client had established a detrimental difference between what happened and what would have happened if the seat had been fitted.
[112](1991) 171 CLR 506 (‘March’). See also Amaca Pty Ltd v Booth (2011) 246 CLR 36.
[113](2010) 240 CLR 537 (‘Tabet’).

So, the contest was this: did the evidence establish only what might have happened as opposed to what probably would have happened?

In March, Mason CJ (with whom Toohey and Gaudron JJ agreed) said:

[I]t is for the plaintiff to establish that his or her injuries are 'caused or materially contributed to' by the defendant's wrongful conduct. Generally speaking, that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent.[114]

[114]March, 514 (citations omitted).

In Tabet, the High Court unanimously held that the loss of a chance of a better medical outcome for a woman whose brain tumour should have been detected earlier was not actionable.

Hayne and Bell JJ said:

For the purposes of the law of negligence, ‘damage’ refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant’s negligence was a cause of that difference. The comparison invoked by reference to ‘difference’ is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred.[115]

[115]Tabet, 564 [66] (emphasis in original) (citations omitted).

And:

In this case, saying that a chance of a better medical outcome was lost presupposes that it was not demonstrated that the respondent’s negligence had caused any difference in the appellant’s state of health. That is, it was not demonstrated that the respondent’s negligence was probably a cause of any part of the appellant’s brain damage.
As Gummow A-CJ explains, to accept that the appellant’s loss of a chance of a better medical outcome was a form of actionable damage would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants. That step should not be taken. The respondent should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was.[116]

[116]Ibid 564 [67]–[68] (emphasis in original).

Kiefel J (with whom Hayne and Bell JJ agreed) said:

The general standard of proof required by the common law and applied to causation is relatively low. It does not require certainty or precision. It requires that a judge be persuaded that something was probably a cause of the harm the plaintiff suffered. Historically the standard may have been chosen in order to minimise errors in civil jury trials, but it nevertheless serves to accommodate a level of uncertainty in proof.[117]

[117]Ibid 587 [145] (citations omitted).

For the following reasons I am satisfied that the evidence viewed as a whole establishes that the aggravation of Mr Ottrey’s back condition was probably caused by the failure of Bedggood to install the ISRI seat.

First, as set out at [86], I am satisfied that there was an incident on 12 November 2017 when the prime mover struck a pothole or uneven part of the road which was productive of Mr Ottrey’s immediate back and leg pain.

Second, there is the evidence of Mr Ottrey as to the mechanism of the incident. Counsel for Bedggood contended that there is no evidence to prove the degree or extent of forces upon the spine, having regard to the degree of bump and the speed of the vehicle. He argued that Mr Ottrey’s evidence was simply ‘I went over a bump and I felt pain’ and therefore the lack of detail made the task of reaching a conclusion as to what occurred impossible.[118]
[118]T625–6.

However, the evidence as to the happening of the incident, whilst not graphic or detailed, is not that simplistic. I have set it out at [68]-[69]. Mr Ottrey described it in cross-examination as follows:

I remember bottoming out, pain down the back, that popping sensation straight down me back and straight down me leg.[119]
I felt that popping sensation. It was like a — like a pop, and then I felt the pain radiate down me leg straight away.[120]

[119]T136.

[120]T138.

Mr John O’Brien, a highly experienced orthopaedic surgeon, saw Mr Ottrey in November 2019 at the request of his solicitors. He recorded Mr Ottrey’s description of the incident as follows:

Mr Ottrey stated that on the 12th of November 2017 he was driving a semi-trailer to Adelaide when the truck hit several large bumps. The patient reported that as a result of this his seat ‘bottomed out’ on several occasions as this occurred the patient stated he felt a popping sensation in his lower back which he reported was immediately followed by a severe exacerbation of low back pain accompanied by pain radiating into the right leg.[121]

[121]Exhibit P38.

I am satisfied that based on these descriptions significant vertical forces impacted Mr Ottrey’s spine when the prime mover struck the pothole.

Third, Mr Lo, the treating neurosurgeon, addressed this issue in his report of 25 October 2021:

Although the initial injury resulted in the lumbar disc prolapse, in my opinion, he further exacerbated this whilst driving in a truck without the prescribed specialised seating. The lack of absorbability and the overall stiffness of the seat, in my opinion, may well have added to the stated injury resulting in further nerve compression. Therefore, on balance of probabilities and in my clinical opinion, had the truck been fitted with the aforesaid seat then further injury may have been reduced.[122]

[122]Exhibit P20.

Mr Lo also said that vertical (or axial) forces (such as those described by Mr Ottrey - I interpolate) are the enemy of the spine and that being cocooned in a more supportive seat means that such forces are dissipated through the cushioning of the seat and not through the spine:

So when dealing with the spine, vertical forces are the enemy. So we — even sitting down, the earth’s gravity is affecting our spine. The purpose of the discs in our spine is that — one of the many reasons — but another chief reason is that it is a shock absorber. It takes the forces of nature, it takes the forces of your daily activity, and try to support it. Because if you did not have that, every step one [sic] take would damage the spinal cord. So that’s a very important function of the discs. Now, if we do a lot of impact activities — i.e. basketball or football, we’re (indistinct) down and the forces of gravity pulls our head and our shoulders — everything down our back. If you can have something that absorbs it, such as — with all this high tech stuff that they’re doing with the basketball shoes for example — special cushion — everything is in order to try to reduce the cushion — or the damaging effect on the cushions of the spine and other joints. So, given that, if you’ve got a seat that specially designed to absorb certain forces, then you add to the cushioning of the spine. Once again, I say to you I am not an engineer, so I don’t know the ins and outs of specific chairs. All I know is the biomechanical of a human being. And in terms of biomechanical function of a human being, if you can somehow reduce the shock on the spine and reduce the force that could be transmitted to any spinal disc, then you’re at less risk of damaging your spinal disc and your spine as a whole. So that’s my comment with regard to this particular seat.[123]

[123]T338–9.

And in relation to the base model, standard Kenworth truck seat Mr Lo said:

In my understanding, if that seat had the desired cushioning and the — and the dissipation, ah, effect, then forces that were normally placed upon the spine by the — driving the truck would be lessened, in my opinion, … of such seats.[124]

[124]T340.

Whilst Mr Lo did not recommend specifically the ISRI seat, he had examined the brochure in consultation with Mr Ottrey in April 2017 — prior to Mr Ottrey resuming work. He explained the purpose of this form of seat as follows:

The details of the seat with the specific vertical shock absorber and the integrated pneumatic system provide greater support in the injured lumbar spine so that the forces applied to the spine can be evenly distributed and adequately supported to allow for greater dissipation. This would then place less strain and stress upon the already injured lumbar spine, in my opinion. In summary, although I did not recommend the specific seat by name, I’m of the opinion that such supportive measures would have reduced the impact upon the lumbar spine given that it had already been injured. The absorbability presented and the ability to dissipate the force means that less impact can be placed upon the injured lumbar spine.[125]

[125]Exhibit P20.

At trial, he said of the mechanism by which Mr Ottrey sustained injury:

Any driving … particularly in … situations where you’re going through, ah, little bumpy roads or … in a posture where, ah, your spine is not particularly protected, then any minor shock, even, you know, running over a little rock, could put pressure on the spine.[126]

[126]T340.

Bedggood contended that Mr Lo’s opinion can be discounted as he had no knowledge of the seat and, on his own admission, did not know ‘the ins and outs of specific chairs’.[127] But that was not the thrust of his evidence — it was not directed to a specific seat but, rather, towards the benefit of a seat that provided support and resisted or ameliorated the forces acting upon an already damaged spine. Nor was it to the point, as Bedggood contended,[128] that Mr Ottrey had a significant risk of developing chronic pain through re-injury. That risk was the very one which the ergonomically designed seat was designed to avoid.
[127]T641.
[128]T637.

Fourth is the evidence of Ms Slade, which was based upon her inspection and assessment of the existing seat — prior to the second incident — with specific consideration of the proposed installation of the ISRI seat with the purpose of preventing further injury or disability to the spine.

At the trial, Ms Slade said that ‘the aim of recommending the seat was that [Mr Ottrey] had adjustment and ability to reduce or eliminate the pain that he was experiencing when truck driving’.[129]
[129]T317.

In relation to the features of the ISRI seat compared to a base model, standard Kenworth truck seat she said:

I guess a base model seat like the one that would be standard in the truck that [Mr Ottrey] had had only a single air lumbar adjustment, single height adjustment and a single air suspension system or setting. The ISRI seat which was recommended as per my report had air seat height adjustment, adjustable vertical shock absorber, self-levelling air suspension, horizontal suspension isolator, a dual air lumbar with lateral support in the backrest. So, a lower and an upper area. So, that would address the need of the, um, lumber area in the previous seat hitting on his scar site … it also had, um, improved suspension settings, um, and horizontal adjustments … you could tilt — tilt the seat base, um, you can adjust the length under the seat, um, the seat depth, and the backrest adjustment … The way this would assist someone that has a history of back injury and post-surgery is with any seating … the more you can customise it and adjust it to your needs. The correctable you are of being able to, um, have it suit you as an individual, and to … prevent aggravation of any symptoms you might be experiencing and enable you to engage in prolonged sitting, which his job required.[130]

[130]T306–7.

And:

Brendan would have been able to adjust the suspension level to something that he could tolerate better … having multi-level lumbar adjustment and — or backrest adjustment that was independent of each other allows you to have better postural support. If you have full contact with the seat underneath your legs and up your back, the you’ve got the best possible support for any, you know, rough terrain or, um, road conditions that you might be driving on.[131]
…
[S]ay there was a sudden movement or something like that, it would keep you, um, in a position that is well-supported and would minimise any, um, sideways or lateral movement that might aggravate, um, lumbar spine injury like [Mr Ottrey] had.[132]

[131]T308.

[132]T308–9.

Pausing here, I regard the evidence of both Mr Lo and Ms Slade as highly significant on this issue. Both have specialist qualifications (with different emphasis) in relation to back conditions and occupational health and safety. Each was in a unique position (if that dichotomy be possible) that I have not encountered in personal injury litigation. They (and particularly Mr Lo) had first-hand knowledge of the condition of Mr Ottrey’s spine, and both were looking at ways to reduce the prospect of further injury if he resumed his chosen occupation as a truck driver. Each was specifically directing his or her attention prospectively to the rigours of the job and the effect it would have on Mr Ottrey’s spine, and, of course, the necessary precautions which should be undertaken to reduce the chance of further injury. All this without the spectre of litigation.

It follows that they are best placed to express an opinion as to cause and effect in relation to what they may well have thought was inevitable if Bedggood failed to install a seat with proper support. When viewed as a whole their evidence as to the advantages of the ISRI seat(or something similar) in preventing further injury to a damaged lumbar spine, when combined with the unsatisfactory nature of the existing seat, is highly persuasive on this issue.

Fifth, there is the evidence of several medico-legal and engineering experts engaged by Mr Ottrey’s solicitors.

Mr Thomas Kossmann, an orthopaedic surgeon, in a report prepared shortly prior to the commencement of the trial, was asked the following:

Assuming that the information contained in the specifications fact sheet is validly correct and also assuming that the information contained in the report of Lisa Slade dated 30 May 2017 is correct, whether on the balance of probabilities had our client’s truck been fitted with IRIS [sic] 6860/870 Pro Truck Seat with the risk of our client suffering further injury to his back [sic] reduced?

To which he responded:

Based on the recommendation by Dr Patrick Lowe [sic] and Ms Lisa Slade to install Iris [sic] 6860/870 Pro Truck Seat and based on the information you have provided me regarding the special seat, I believe on the balance of probabilities that this seat would have reduced the risk in Mr Ottrey to suffer further injuries to his back.[133]

[133]Exhibit P44.

Dr Cubitt, a consultant engineer, provided a voluminous amount of material in relation to the replacement seat. It is only necessary to refer to the following extract from his 7 November 2021 report dealing with both incidents:

Both ISRI and KAB seats will bottom out given a large enough undulation. The superior cocooning of the driver’s lower back provided by the ISRI seat will reduce the axial force and shear force in the driver’s lower back when compared with the KAB seat.
In my opinion, the ISRI seat would have provided better support to Mr Ottrey’s back when he drove over a series of undulations in the pavement of the road when compared with the KAB seat.[134]

[134]Exhibit P60.

In oral evidence he stated:

Basically, the KAB seat, that’s the ones fitted standard to older model Kenworth trucks, had no adjustable lumbar support and does not have separate chambers for upper and lower lumbar support. Whereas the ISRI seat has lower and upper lumbar support as well as adjustable side supports. The ISRI seat also allows the driver to adjust the cushion of the seat to get it into a comfortable position under his legs. The KAB seat does not have adjustable cushion arrangements.[135]
…
He can adjust the ISRI seat in many ways, including the tilt, the position of the cushion, the degree of dampening. Um, if he’s going over a rough road he can change the damping compared to going over a smooth road. These options exist in the ISRI seat and they do not exist in the KAB seat. And the ISRI seat will enable Mr Ottrey to … it would reduce the probability of his injury.[136]

[135]T540–1.

[136]T542.

And in cross-examination:

Counsel: Now, Doctor, had the ISRI seat been installed how do you say whether it would have had any impact on materially reducing the risk of further damage to our client’s spine?
Dr Cubitt:I would say it would have had a material effect on reducing the risk of injury[137]

[137]T545.

The only evidence adduced by Bedggood to dispute the putative effect of the ISRI seat upon injury to the lumbar spine caused by impact and vertical forces came from the ergonomist, Mr Dohrmann.

In his report he said as follows:

Turning to the second incident (12 November 2017) it is clearly a matter of expert medical opinion whether the alleged ‘bottoming out’ impact on Mr Ottrey’s spine aggravated any previous injuries.
…
If the KAB seat was fitted and fully operational at the time Mr Ottrey was driving on the Western Highway to or from Adelaide, the likelihood of pot holes and irregularities on that highway causing a ‘bottoming out’ of the seat was unlikely.
If the seat did bottom out, then there is clearly a possibility that his low back injuries would be exacerbated. However, it is my opinion (based on the assumptions listed) that such bottoming out was for all practical purposes impossible or extremely unlikely to occur in the circumstances.
The specialist seat which had not yet been installed would have had at least similar or possibly equivalent vibration absorption properties as the seat which was actually in use at the relevant time. If that is proven correct, then the installation of the new Isri seat would not have affected the outcome.[138]

[138]Exhibit D1.

At trial, having examined the brochure promoting the seat, he said as follows:

I don’t believe that the alternative seat would’ve made any material difference. Whether it was an ISRI or a KAB.[139]
I still think and say that the single lumbar air powered support in the KAB seat is of quality, and adequate … If you look at the diagrams of the two seats I think you’ll see quite plainly that there’s a multiplicity of adjustments. They’re not hard to understand.[140]
…
But I would say that a truck of this size, shape, weight and fit out as I’ve described would be more than capable of, um, handling most foreseeable vibrations due to road irregularities and that the — you could not distinguish between the two seats and their abilities to add, as the fourth element, control over the vibration experienced at the lumbar spine.[141]

[139]T546.

[140]T547–8.

[141]T549–50.

This opinion is to be contrasted to that of Mr Siu, the other expert engaged by Bedggood. He is a highly experienced neurosurgeon who was engaged by Bedggood to report on the effects of the second incident upon Mr Ottrey. On 12 October 2021[142] he prepared a supplementary report (his initial report was provided in August) at the request of Bedggood’s solicitors. That report was a response to what were, in truth, a set of interrogatories (or more accurately, cross-examination) delivered by the solicitors. One of the questions was as follows:

Q: Please review the Affidavit of Mr Ottrey sworn 19 September 2019 and comment on whether the history provided by Mr Ottrey at paragraph 25 regarding the aggravation of his condition is consistent with the history Mr Ottrey provided to you.
A:In Mr Ottrey’s Affidavit of September 2019 at Paragraph 25 Mr Ottrey deposed that he suffered an aggravation of his back condition driving with an unsafe seat.
The history given to me by Mr Ottrey was that he hit a pothole and jarred his back.
He certainly complained about the faulty seat. In the Accelerait report they expressed the opinion that his seat did not provide adequate support.

[142]Exhibit P49.

It is noteworthy that Mr Siu (despite the clear invitation) did not query the contents or opinion of Ms Slade in the Accelerait report nor Mr Ottrey’s description of the incident as being productive of symptoms.

In determining whether Mr Ottrey has made out his case on positive detriment caused by the failure to install the ISRI seat, the Court’s task is to look at the evidence as a whole and not piecemeal. Then it is to determine whether on all the evidence Mr Ottrey has proved his case on the balance of probabilities.

The High Court explained this in Bradshaw v McEwans Pty Ltd:[143]

All that is necessary is that according to the course of common experience the more probable inference from the circumstances … should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.

And more recently in the New South Wales Court of Appeal in Seltsam v McGuiness,[144] Spiegelman CJ:

Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.

[144](2000) Aust Torts Reports 81-547, [79].

So, for instance, where Mr Lo said that the risk of injury ‘may’ have been avoided, then that of itself does not mean that Mr Ottrey’s case fails. On the contrary, Mr Lo’s evidence needs to be viewed in context and it is the whole of his evidence, when viewed with the other evidence — particularly that of Ms Slade and Mr Lo and to a lesser extent Mr Kossman and Dr Cubitt — which is important.

I have reached the following conclusions as to this body of evidence:

(a) I do not accept the opinion of Mr Dohrmann. I note that prior to compiling his report and then giving evidence he had not bothered to inspect the seat in 9PC nor had he sought to inspect the ISRI seat, which was in the possession of Mr Ottrey’s solicitors. Moreover, his qualifications to express an opinion on this issue pale when contrasted to those of Mr Lo, a neurosurgeon, and Ms Slade, an experienced occupational therapist. I consider that his opinion lacks proper investigation and scientific rigour.

(b) Nor do I accept the general proposition advanced by Bedggood’s counsel that there are so many variables that the Court cannot draw an inference about the probable result of fitting an ISRI seat. It was said that Mr Ottrey’s case on this issue lacked precision. The very point made by Kiefel J in Tabet[145] and earlier by the High Court in Bradshaw is that the test is not one of certainty or precision, but rather one that requires probabilities based on an assessment of all the evidence and permits a level of uncertainty in proof.
[145]See [131] above.

(c) The seat in 9PC was, as I have concluded, bottomed out and incapable of providing proper support for Mr Ottrey’s spine. Ms Slade’s contemporaneous and independent evidence on this score is compelling. Indeed, accepting her evidence, the comparison between the ISRI seat and the seat in 9PC was like comparing chalk and cheese. Whilst the condition of the seat does not of itself bespeak a causal nexus to injury, its inability to withstand forces (be they vertical or horizontal) as observed by Ms Slade in May 2017, it can be inferred, contributed to the further injury to Mr Ottrey’s lumbar spine.

(d) This patently deficient situation — the condition of the seat — would have been remedied by the installation of the ISRI seat, designed to reduce the forces placing stress on Mr Ottrey’s already damaged spine. The evidence of Mr Lo, Ms Slade, Mr Kossmann, Mr Siu and Dr Cubitt viewed as a whole persuades me that, on the balance of probabilities, this injury would not have occurred if the ISRI seat had been installed. Indeed, this is not a close-run thing. The evidence is highly persuasive. As counsel for Mr Ottrey contended, based upon the evidence of these witnesses, the ISRI seat provided a cocooning effect which reduced the vertical forces imposed on the spine which undoubtedly occurred as a result of the prime mover striking the pothole.

(e) It follows that I am satisfied that the aggravation of the original injury and/or a further injury to the lumbar spine was caused by the negligence of, and/or breach of statutory duty by, Bedggood in not fitting the ISRI seat to 9PC as it should have in May or June 2017.

Sequelae of the second incident

After he reached Adelaide, Mr Ottrey’s back and leg pain persisted. He drove back to Maffra and ceased work on 15 November 2017. He has not worked since.

The back and leg pain experienced by Mr Ottrey at the time of the second incident also persists to the present time.

On his return to Maffra, he saw Dr Choy who sent him for an MRI scan of his lower back on 27 November 2017.[146] He was then referred to Mr Lo, his neurosurgeon.[147]
[146]Affidavit in support of an application by Mr Ottrey pursuant to s 93(4) of the Transport Accident Act 1986 (Vic), [26]; Exhibit P12.
[147]Exhibit P12.

Mr O’Brien, in his report of 20 November 2019 to Mr Ottrey’s solicitors, thought that Mr Ottrey had a ‘poor’ prognosis and ‘will unfortunately continue to experience chronic back and leg pain which hopefully can be controlled by appropriate conservative pain management as I do not consider that further surgery is indicated’.[211] Mr O’Brien considered that Mr Ottrey was incapable of undertaking his pre-injury occupation as a truck driver nor was he capable of undertaking suitable employment. He regarded Mr Ottrey as permanently ‘totally incapacitated’, with ‘no likelihood of this patient returning to gainful employment’. He concluded that Mr Ottrey remained ‘significantly limited in his general, social, domestic and recreational activities’. He considers that this is a ‘permanent situation’.
[211]Exhibit P38.

Mr Siu, in his report dated 2 August 2021 opined to Bedggood’s solicitors that Mr Ottrey ‘is angry and frustrated because of his persistent pain’ and ‘should attend a properly constituted multidisciplinary pain management programme with psychologist, psychiatrist, pain specialist, physiotherapy and occupational therapy’.[212] He was of the view that Mr Ottrey had ‘no current work capacity and is unlikely to return to gainful employment for maybe two years or more’. Mr Ottrey remains a candidate for future surgery in the form of a fusion, but it is ‘fraught with risks and uncertainty.’
[212]Exhibit P48.

In his report dated 15 January 2020, Dr Nigel Strauss, psychiatrist, considered that Mr Ottrey’s prognosis ‘must be guarded’ and urged that ‘he commence psychiatric and psychological treatment as soon as possible’.[213] In his subsequent report dated 18 August 2021, he was of the view that Mr Ottrey’s ‘situation has not altered appreciably’ and could not see Mr Ottrey working in the foreseeable future on both physical and psychiatric grounds, taking into account his ‘mental state, mood and his attitude towards others’.[214]
[213]Exhibit P39.
[214]Exhibit P40.

The role of the two incidents in Mr Ottrey’s symptomatology

Several specialists (both treating and consultant) addressed the issue of the role each of the two incidents has played as a cause of the damage to the lumber spine and the production of symptoms. I do not propose to revisit the opinions proffered by those who have not endeavoured to identify cause and effect of the two incidents. I do not mean any disservice to these experts as several, for good reason, did not address the issue — some, quite understandably, were expressing medical rather than medico-legal opinions. Some did not address the issue on the premise (engendered by Mr Ottrey’s solicitors) that the work between May and November 2017 was the cause of Mr Ottrey’s recurrence of back and leg symptoms, rather than the second incident.

To recap, the first incident — the lifting of the gates — produced a lumbar disc prolapse at L5/S1 with resultant nerve compression. This then led to the laminectomy performed by Mr Lo in December 2016. The second incident — the prime mover striking the pothole in November 2017 — produced immediate back and leg pain, resulting in the insertion of the implant. The pain and impairment of movement of the back and leg continues to the present day.

Mr Lo said of the role of the first and second incidents:

In relation to that, once the spine has been injured, as I stated before, it stays injured. So, it’s likely and also possible, that the initial injury continues to play a part.[215]

[215]T341.

Mr Lo accepted that both incidents were productive of symptoms[216] and that the first incident continued ‘to play a role’.[217] However, as has already been noted, Mr Lo did not regard either the November 2017 MRI or the December 2018 MRI as particularly significant.
[216]T343.
[217]T344.

Dr Verrills, concluded as follows in his report of 9 November 2019:

It is my view that this man’s injury is directly related to his workplace injury. He did indicate that he felt the truck seat was defective in his further injury in November 2017 … It is my view that the work performed by this man along with the injuries described in the particular initial injuries of lifting and twisting heavy gates on or about 12 April 2016, caused him to incur a substantial disc prolapse and most likely also precipitated annular tears in one or more discs above the operative level.
This injury was further exacerbated when he attempted a return to light duties in the incident described with a defective seat in November 2017.[218]

[218]Exhibit P27.

As I mentioned earlier Mr Siu was asked by Bedggood’s solicitors to address specifically the role of each incident in determining the cause of Mr Ottrey’s ongoing back and leg symptoms.

In his report of 2 August 2021, Mr Siu concluded that the first incident produced a back injury ‘with S1 nerve compression following a disc prolapse at that level’.[219]
[219]Exhibit P48.

In relation to the second incident, he expressed the following opinion:

The physical injury on 12 November 2017 was an aggravation of a pre-existing lumbar spondylosis.

To the question, ‘Have any of these injuries resolved?’, he responded:

The first injury has resolved but not the second injury.

To the question, ‘If there was an aggravation, has this now resolved to the pre-accident state?’, he responded:

I do not believe there has been aggravation of a pre-existing condition prior to 2016. There certainly has been aggravation subsequent to his trip to Adelaide driving the interstate truck.

And to the question, ‘Is there a relationship between his injuries and current presentation to the first incident and/or the second incident?’, he responded:

His present situation is because he had a recurrence [sic] of problems in November 2017 and everything flows on from that.

In reaching these conclusions, it seems clear that Mr Siu accepted the radiologist’s interpretation of the November 2017 MRI.

Mr O’Brien also was given a history of two separate incidents and asked to opine as to the role of each. He reached the following conclusion in his report of 20 November 2019:

The patient does in fact describe the onset of back pain associated with a lifting incident in the course of his employment in approximately April 2016. This was followed by increasing low back and subsequently right leg pain clearly aggravated by his continuing employment. Indeed subsequent investigations confirm the presence of a sequestrated right sided S1 disc herniation with S1 nerve root compromise. As a consequence the patient underwent surgery which was reported as involving a removal of the right sided focal disc prolapse. Post-operatively indeed the patient reported significant symptomatic relief although there was described some residual back and right leg pain. The patient however physically been capable of returning to what appears to have been his pre-injury duties.
A second work related incident described as occurring in November 2017 was reported as immediately precipitating the severe aggravating of specific previous back and also right leg pain which the patient reports has remained a constant problem which indeed has failed to respond to conservative treatment, further treatment not being advised.
Current signs now indicate quite marked restriction of lumbar movement with some evidence of mild right sided nerve root irritation with a mildly positive Lasegue’s sign but no evidence of nerve root disfunction. Indeed, given the most recent MRI it would appear that the underlying chronic pain relates to discogenic pain with evidence of some epidural scar formation, a source of mild nerve root irritation and the presence of chronic right leg pain.
This history would indicate that employment was a significant contributing factor to the significant right sided L5/S1 disc herniation with initial reasonable response to surgery. A second reported work related incident has clearly resulted in aggravation of the initial L5/S1 pathology and thus employment remains a significant contributing factor to the current clinical condition.[220]

[220]Exhibit P38.

Dr Richard Sullivan, an interventional pain specialist anaesthetist, was engaged by Mr Ottrey’s solicitors. Notwithstanding the lawyers’ questions being directed towards the period of employment between May and November 2017, Dr Sullivan dealt specifically with the two incidents.[221] He considered that the first incident was productive of disc prolapse from which Mr Ottrey had made an almost full recovery. He described the second incident as follows:

He sustained an aggravating injury in or around 12 November 2017. This resulted into the development of aggravation of lumbar spondylosis and a chronic pain condition affecting his back and bilateral lower limbs that can be considered permanent in nature and had failed to remit despite interventional treatments to date.[222]

[221]Exhibit P46.

[222]Exhibit P46.

Finally, there is the opinion of Mr Kossmann. In his report of 1 June 2021, Mr Kossmann was asked a series of questions (many of them leading and containing disputed assumptions of fact).[223] Notwithstanding, Mr Kossmann noted the contrast in the appearances of the June 2017 MRI and the November 2017 MRI. He concluded that the second incident produced an aggravation of symptomatology and progression of the pathology of the lumbar spine as follows:

Therefore I believe that truck seat incident occurring on 12 November 2017 is at least in part responsible for Mr Ottrey reinjuring his lumbar spine and the progression of pathology of the lumbar spine.[224]

[223]Exhibit P43.

[224]Exhibit P43.

Based on this material I have reached the following conclusions:

(a) The first incident, which resulted in a disc prolapse and subsequent surgery, had primarily resolved but Mr Ottrey was left with ongoing symptoms of a mild nature.

(b) The damage to the lumbar spine caused by the first incident rendered Mr Ottrey vulnerable to further injury — as transpired. The prospect of him continuing as an interstate truck driver or, for that matter, engaging in heavy work for any length of time was highly problematic-if not highly unlikely.

(c) The second incident and its sequelae was not minor. It was one of significance, as demonstrated by the MRI findings taken a couple of weeks later. In this regard I accept the analysis of Mr O’Brien, Mr Siu and Mr Kossmann (eminent and highly qualified surgeons), supported by that of Dr Verrills and Dr Sullivan. Insofar as Mr Lo’s interpretation of the November 2017 MRI and his subsequent opinion is at odds with their opinions, I prefer that of Mr O’Brien, Mr Siu and Mr Kossmann. It seems clear that the second incident was a major aggravation — if not precipitating a fresh injury — to the lumbar spine. Indeed, Mr Siu regards it as the major culprit.

(d) The separate insults to the lumbar spine caused by the two incidents have been responsible for Mr Ottrey’s disability and impairment since the second incident. I think this reflects the consensus of the medical opinion which, I accept, has differing emphases. I do not accept Mr Siu’s conclusion that it is only the second incident that is responsible for Mr Ottrey’s current symptoms. I think that is too extreme and is at odds with the majority view. I am satisfied that the effects of each incident play a part in his current disability and will continue to do so into the future. I cannot differentiate between the role of each as a cause of his symptoms since the second incident and accordingly regard them as equally responsible.[225]

[225]Mr Siu alone appears to discount the effect of the first incident as a cause of Mr Ottrey’s current symptoms. On this point only I do not accept his opinion.

Assessment of damages: the first incident

This claim is for pain and suffering only.

Mr Ottrey sustained a significant injury in the form of a disc prolapse and underwent a major surgical intervention to remedy that condition. He did, of course, make a good recovery to the point where he could return to his chosen occupation. He ceased any ongoing treatment in May 2017.

I have also concluded at [62] that Mr Ottrey was coping with his truck driving, although the surgical scar was clearly causing him problems when seated for extended periods of time. Notwithstanding, he did not need medical treatment and the future, prior to the second incident, seemed reasonable. There was, of course, always the risk of his weakened spine being subject to a further injury — as transpired on 12 November 2017.

Based on the medical opinions which I have referred to at [229] I accept that Mr Ottrey as a result of this incident and the second incident will continue to have major back and leg problems for the foreseeable future. He may have to undergo spinal surgery. He will need the implant removed. There is no prospect of him returning to his job as a truck driver or engaging in heavy work. He is precluded from carrying out many of the activities and pastimes he had previously engaged in — including the pleasure he derived from his job as a truck driver. He will continue to suffer from related psychological problems. He will require medication and will need pain management and psychological support.

However, having observed Mr Ottrey give evidence over several days I am not as pessimistic about the future as some of the medical experts, although I readily accept that, given his background, finding meaningful opportunities in life will be a challenge. He impressed as a quite intelligent and personable man who could rebuild his life, at least to some extent, once the litigation is concluded.

Counsel for Mr Ottrey contended that $400,000 was an appropriate sum for pain and suffering damages, given that this injury was the initiating factor and continued to play a part in Mr Ottrey’s symptomatology.[226] Counsel for Bedggood contended that an appropriate figure was between $250,000 and $275,000.
[226]See s 93(7)(b) of the Transport Accident Act1986.

Given my findings at [233] and the fact that the first incident was the sole cause of Mr Ottrey’s symptoms until November 2017, I consider the appropriate allowance is $275,000 for pain and suffering damages.

I am also conscious of the fact that it will be necessary, at the conclusion of fixing the appropriate sum for pain and suffering as a result of the second incident, to examine the aggregate sum awarded under this head of damage to ensure that the total sum is fair and reasonable compensation.

Assessment of damages: the second incident

I repeat that this incident played an equal role with the first incident in producing Mr Ottrey’s impairment and disability since November 2017. There is also no issue that the second incident is a cause of Mr Ottrey’s impaired earning capacity.

Pain and suffering damages

I adopt my findings at [233]-[234] in relation to the effects of the second incident upon Mr Ottrey.

Counsel for Mr Ottrey put a figure of $200,000 to $225,000 for this head of damage. The suggestion of counsel for Bedggood did not differ significantly — $150,000 to $200,000.

I consider that the sum of $200,000 is the appropriate allowance.

In reaching this figure, I am conscious that Mr Ottrey has been awarded $275,000 for pain and suffering damages as a result of the first incident. I do not see any disproportion or unfairness in the total sum for pain and suffering damages in respect of both incidents, given what Mr Ottrey has been through and what the future holds.

Loss of earning capacity damages
Principles

The principles set out by the High Court in Malec v JC Hutton Pty Ltd[227] apply to the assessment of both past and future loss as the exercise is the same: the calculation of a hypothetical loss:

Whatever the precise chance that the plaintiff would have developed a similar neurotic condition, the majority in the Full Court erred in refusing to award him any damages for the care and attention given to him by his wife and for the neurotic condition from which he presently suffers. The plaintiff is entitled to damages for pain and suffering on the basis that his neurotic condition is the direct result of the defendant’s negligence. Those damages must be reduced, however, to take account of the chance that factors, unconnected with the defendant’s negligence, might have brought about the onset of a similar neurotic condition. Likewise, the plaintiff is entitled to compensation for the care and attention provided by his wife. Again that award must be reduced to take account of the chance that factors, unconnected with the defendant’s negligence, would have necessitated similar care and attention.[228]

[227](1990) 169 CLR 638 (‘Malec’).

[228]Ibid, 645.

Last month, the New South Wales Court of Appeal in New South Wales v Skinner[229] revisited this principle in a case similar to this; where the evidence suggested a real prospect that the plaintiff would not be able to continue in her chosen career irrespective of the tortious injury. Basten JA (with whom Brereton and McCallum JJA agreed) said of the proper approach to the application of Malec:

The plaintiff challenged the application of the principle in the present case because she submitted there was ‘no independent non-tortious cause to the respondent’s injury (the appellant having caused the respondent to suffer PTSD and major depression)’. That reasoning might be based on the approach adopted in Bonnington Castings. However, accepting that there was a real chance that the plaintiff’s earning capacity would have been adversely impacted in any event by the non-tortious injury, the principled application of Malec requires that fact to be taken into account in assessing the appropriate deduction for contingencies. As explained by Brennan and Dawson JJ in Malec what is required is ‘an evaluation of the plaintiff’s earning capacity which was destroyed in consequence of the defendant’s negligence.’ This principle is fundamental and does not depend upon whether the alternative cause of the disability was the result of conduct of the same employer or not.[230]

[229][2022] NSWCA 9.

[230]Ibid [124] (emphasis added) (citations omitted).

It is traditional in this State to assess past loss separately from future loss notwithstanding that the exercise as a whole is to determine loss of earning capacity. There is good sense in this approach as the risks posed to the exercise of earning capacity by a plaintiff in the past (a limited period) can be identified with some precision unlike those in the future, which in most cases are necessarily generalised.

Past economic loss

Mr Ottrey has not worked since November 2017.

In relation to past economic loss, the parties agreed that Mr Ottrey’s hypothetical loss of earnings as a truck driver was on average $1,686 per week — made up of $1,500 per week wages and $186 per week employer superannuation contributions.

Counsel for Mr Ottrey originally suggested a sum for past economic loss of $357,432, being the total loss of $1,686 per week for 212 weeks from November 2017. This was subsequently modified to exclude the first 18 months from November 2017, as required by s 93(10)(a) of the Transport Accidents Act.

The result is that there is a loss of earnings (including loss of employer superannuation benefits) for approximately 147 weeks to the date of judgment, which produces a total loss of $247,842.

I understood counsel for Mr Ottrey to contend that this amount should be allowed in full, subject to an appropriate discount for contingencies of 10%.

Counsel for Bedggood cautioned against such an approach, noting that Mr Ottrey was capable of local driving, and it was only on the advice of his lawyers that he did not look for work.

The figure of $247,842 is an appropriate starting point. However, there are several matters which need to be factored in to the Malec assessment of the hypothetical loss, or what is traditionally referred to as the discount for contingencies.

First, throughout this period Mr Ottrey’s lumbar spine was at risk of deterioration to the point where (with or without the second incident) he would have ceased truck driving and looked for lighter work. The difficulties (whilst not disabling) that he experienced during the period between the first and second incident demonstrate this as does the fact that his back failed after the second incident. Second, for reasons I mentioned at [186], I am not convinced that Mr Ottrey did all that he could to obtain suitable work after November 2017. I have referred to the disquieting evidence surrounding his various efforts to return to work and the role of his then lawyers. But, as I pointed out earlier, there were other factors related to his serious back injury inhibiting his ability to return to work. The appropriate discount for contingencies of the lump sum is 25%.

This produces a lump sum figure of $185,881.

I propose to allow this sum for past loss of earnings and superannuation contributions.

Future economic loss

Counsel for Mr Ottrey put forward two scenarios for the calculation of future economic loss: the first based upon no future earning capacity; the second based upon Mr Siu’s assessment that Mr Ottrey would have no capacity for employment for two or more years and then may be able to return to a suitable employment, which excluded work as a truck driver. It is unnecessary to deal with the second scenario which, whilst tenable theoretically, complicates the exercise contemplated by the application of the Malec principle.

Counsel for Bedggood contended that given Mr Ottrey had looked for employment as a truck driver in 2019 then, based on the advice of his lawyers, ceased looking, there was a real prospect of him obtaining appropriate employment in the future. It was not argued, however, that he could go back to work as a truck driver. Counsel also contended that it was inevitable, given the injury sustained in the first incident, that he would at some point in the future have been deprived of this occupation.

I consider that it is inconceivable that Mr Ottrey, absent the injury from the second incident, would have worked to age 67 as a truck driver or, indeed, in any form of heavy work. His back condition prior to the second incident not only caused him mild to moderate discomfort, as witnessed by his mother, but rendered him vulnerable to further injury — as the second incident demonstrated.

I also think, for reasons I have set out at [234], that Mr Ottrey may well be capable of performing light work in the future. I accept the opinions of Mr Siu and Mr Kossman on this point which are consistent with my impression of Mr Ottrey. I do not regard him as unemployable indefinitely and accept Mr Siu’s opinion that he may well be able to return to gainful employment in a light work capacity. I repeat that I am not sure that his absence of employment over the past four years is necessarily reflective of his diminished earning capacity. On the other hand, I accept that his back condition is significant and will continue to limit his capacity to work, as the medical practitioners have suggested.

I consider the evidence of the several consultants of IPAR, a workplace rehabilitation consultant engaged by Bedggood’s solicitors as of some relevance on this point. Ms Clowes, a rehabilitation counsellor, identifies a number of lighter jobs that she believes Mr Ottrey could undertake at a salary well below that of an interstate truck driver. Of course, much depends on Mr Ottrey’s motivation once this case is concluded as well as the types of jobs available in Northern Victoria for a person with his spinal disability.

What must also be considered are the other traditional contingencies — unemployment, early retirement, ill health (outside the lumbar spine injury) — to which now might be added 'pandemics’.

The parties agreed that the current wage for an interstate truck driver is $1,581 net (clear of taxation payments) per week, with employer superannuation contributions of $182 per week.

The agreed multiplier to age 67 is 730. The capital sum for loss of future wages is therefore $1,154,130.

Counsel for Mr Ottrey suggested a Malec discount of 25%. Counsel for Bedggood suggested 50%. I think that the appropriate discount which reflects the adverse impact of factors, other than the injury sustained in the second incident ,on the exercise of Mr Ottrey’s earning capacity, to be 40%. This produces a capital sum of $692,478.

To this must be added an allowance for the loss of employer provided superannuation benefits. The capital sum of that loss is $132,860 based on the agreed figure of $182 and the multiplier of 730.

It was not suggested by Counsel for Bedggood that this capital figure should be the subject of any different discount to that applied to the figure for future economic loss. Applying the same Malec discount results in a figure of $79,716.

The total allowance for Mr Ottrey’s loss of earning capacity (or to use the words of the Transport Accidents Act – pecuniary loss) is as follows:

(a) Past loss of income and employer superannuation contributions: $185,851.

(b) Future loss of earning capacity: $692,478.

(c) Future loss of employer superannuation contributions: $79,716.

Total: $958,045.

Conclusion

Subject to any relevant deductions, there should be judgment for Mr Ottrey in respect of the first incident for $275,000 for pain and suffering damages.

Subject to any relevant deductions, there should be judgment for Mr Ottrey in respect of the second incident for $1,158,045, being $200,000 for pain and suffering damages and $958,045 for pecuniary loss damages.

[143](1951) 217 ALR 1, 5 per Dixon, Williams, Webb, Fullagar and Kitto JJ. See also Luxton v Vines (1952) 85 CLR 352. For a more recent analysis see Prestage v Barrett [2021] TASSC 27 and Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4.

[2022] VSC 59

9 March 2022