Peter Towns and K & S Freighters Pty Ltd

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[2012] AATA  283

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2477

Re

Peter Towns

APPLICANT

And

K & S Freighters Pty Ltd

RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey and Dr I Alexander
Date 11 May 2012
Place Sydney

The Tribunal sets aside the decision under review and substitutes for it the decision that the respondent is liable to compensate the applicant for the aggravation of his hernia condition.

............[sgd]............................................................

Senior Member J F Toohey and Dr I Alexander

CATCHWORDS

COMPENSATION – aggravation of right inguinal hernia – truck driver – change in duties – whether employment contributed to aggravation to a significant degree – decision under review set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5B and 14

REASONS FOR DECISION

Senior Member J F Toohey and Dr I Alexander

BACKGROUND

  1. Mr Peter Towns has been employed by the respondent as a truck driver since approximately 2000.  He delivers rolls of newsprint weighing up to two tonnes each to newspaper printers. 

  2. Mr Towns usually drives a single semi-trailer.  Between April and August 2010, while another employee was off work, he drove a B-double which comprises two semi-trailers drawn by a prime mover. 

  3. Mr Towns has a right inguinal hernia as a result of lifting a heavy weight at his previous place of employment. He claims it was asymptomatic until April 2010 when he started driving the B-double. He claims the heavier work involved in driving the B-double aggravated his hernia such that it now requires surgical repair.  He has not time off work, but seeks compensation for the cost of the operation and any related incapacity.

    RELEVANT LEGISLATION

  4. By s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), the respondent is liable to compensate Mr Towns for an injury that results in incapacity for work or impairment: s 14.

  5. Injury means, relevantly:

    (i)a disease suffered by an employee; or

    (ii)an injury (other than a disease) that it is a physical or mental injury arising out of, or in the course of, the employee's employment; or

    (iii)an aggravation of a physical or mental injury (other than a disease) that arose out of, or in the course of that employment.

  6. Disease means an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee's employment. 

  7. Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development): s 4.  There is no argument that Mr Towns’ hernia constitutes an ailment for the purposes of the Act.

  8. Significant degree means a degree that is substantially more than material: s 5B(3).   Section 5B(2) provides that, in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, the matters that may be taken into account include, but are not limited to:

    (a)the duration of the employment;

    (b)        the nature of, and particular tasks involved in, the employment;

    (c)        any predisposition of the…

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Details
Case
[2012] AATA 283
Decision Date

CaseChat Overview and Summary

The case of Peter Towns and K & S Freighters Pty Ltd involves a dispute over compensation for the aggravation of a right inguinal hernia experienced by Mr. Towns, a truck driver employed by the respondent. The case was heard by the Industrial Relations Commission of New South Wales, where the primary issue was whether the respondent's employment contributed to a significant degree to the aggravation of Mr. Towns' hernia. The matter was subsequently reviewed and set aside by the Commission, finding the respondent liable to compensate Mr. Towns.

The central legal issue the court had to decide was whether the duties Mr. Towns performed while driving a B-double truck contributed significantly to the aggravation of his hernia. The respondent argued that Mr. Towns' hernia was unrelated to his employment and that he had failed to report safety issues with the vehicle. However, the court found that Mr. Towns' evidence, which described a change in his duties involving heavier lifting and the onset of pain and discomfort upon starting to drive the B-double, was credible. The medical evidence supported the conclusion that the activities involved in driving the B-double were consistent with the increase in size of Mr. Towns' hernia.

The court reasoned that Mr. Towns' employment with K & S Freighters Pty Ltd led to a significant change in his duties, which involved more strenuous physical activities compared to his previous role of driving a semi-trailer. The court found no evidence to suggest that any other factor, such as age or a one-time incident of long-distance walking, played a significant role in aggravating Mr. Towns' hernia. The lack of medical evidence regarding the state of Mr. Towns' hernia prior to April 2010 was not seen as a barrier to establishing the connection between his employment and the aggravation of his condition, as his testimony and the medical evidence were consistent with the changes in his duties and symptoms.

The court concluded that the respondent's employment contributed to a significant degree to the aggravation of Mr. Towns' hernia, setting aside the original decision and finding the respondent liable to compensate Mr. Towns under s 14 of the relevant Act. The court's decision was based on the balance of probabilities and the absence of any evidence suggesting alternative causes for the hernia's aggravation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Towns emphatically denied that suggestion. He gave evidence that he had no intention of claiming compensation when he spoke to Mr Rose; he just wanted to stop driving the B-double and asked if another driver could take over; it was Mr Rose who referred him to the company doctor and asked if he wanted to make a claim, and the doctor who suggested he should pursue the matter with his previous employer; he did not approach, or have any contact with, his previous employer. Mr Paul Rose’s evidence Mr Paul Rose is the respondent’s operations manager. He joined the company in 2001. He has a range of responsibilities including supervising the team of truck drivers, including Mr Towns. He is currently seconded to another employer. Mr Rose gave evidence about how inspections are carried out by drivers, and the process by which complaints and requests for repairs are dealt with. Other than the repairs Mr Towns requested after his first inspection of the B-double, Mr Rose could not recall any other occasion when he requested repairs to that vehicle. This is consistent with Mr Towns’ evidence. Mr Rose gave evidence that he first learned of Mr Towns’ hernia in late April 2010 when Mr Towns said it had been troubling him. He has no recollection of Mr Towns mentioning the B-double or any problems with it during this conversation. He had “the impression” that the aggravation occurred when Mr Towns was looking for some stray cattle on his property. Mr Rose also understood, from discussion with Mr Towns, that he was making enquiries as to whether compensation could be claimed from his previous employer. Mr Rose could not be sure whether these were one and the same discussion, although he thought it was the latter. As he recalled, the conversation took place either in his office or while he and Mr Towns were driving somewhere in Mr Rose's vehicle. His next conversation with Mr Towns about his hernia was in August 2010. In the meantime, as far as he was aware, Mr Towns was “pursuing the ex-employer”. The schedule of repairs shows that repairs were carried out on 7 August 2010 to “2/Repair x 2bent and cracked gates”. Mr Rose could not recall how this particular repair came about, or how it relates to a note he made on 27 August 2010 in relation to another matter that the same trailer had been inspected and “1 gate was found to be slightly bent causing a minor drag when being removed from the gate tongue”. He told the Tribunal that he only occasionally had cause to lift the gates on the B-double but he agreed it could be difficult and that they require “a bit of effort”. Mr Rose appeared to us to give his evidence truthfully and to the best of his recollection. He impressed us someone who takes his job seriously. However, we prefer Mr Towns’ account of their conversations. Given that it was not until August 2010 that the question of compensation was raised with Mr Towns, Mr Rose’s impression that he was pursuing his former employer after April 2010 cannot be correct. We accept Mr Town’s evidence that he did not consider a compensation claim until he saw Dr Ma in August 2010.

Decision

Reasons for decision

As noted above, in order for the respondent to be liable to compensate Mr Towns, we must be satisfied that his employment contributed to a significant degree to his injury. We are satisfied that there is a clear connection between the aggravation of Mr Towns’ hernia and the change in his duties in the period from April to August 2010, and there is no evidence to suggest that any other factor played a material part in the aggravation. CONCLUSION We are satisfied on the balance of probabilities that Mr Towns’ employment contributed, to a significant degree, to the enlargement of his hernia and associated pain and discomfort. We set aside the decision under review and find the respondent liable, under s 14 of the Act, to compensate Mr Towns for the aggravation of his hernia.

Ratio Decidendi

Legal Principle Established

In a supplementary report, from which it appears the respondent had sent Dr Roth documentation indicating there were “no relevant faults with Trailers 646 or 647 at the relevant time”, Dr Roth wrote:As stated in my previous report, the general nature of the work which Mr Towns has been performing with K&S Freighters Pty Ltd over the years has involved amongst other things pushing and pulling poles on the back of the truck as the poles were jammed against the load and this included paper weighing approximately two tonnes. He also used pipe extensions to tighten and loosen the curtains on the back of trucks. In addition, he would also pull curtains on the trailer uphill as apparently the loading area was on the slope and in windy weather he would exert considerable pressure when the curtains were caught by the wind.In view of this, I believe that the increase in size of his right inguinal hernia can be related to the general nature of the work which he has been performing with K&S Freighters over the years.CONSIDERATION For the respondent it is contended that Mr Towns realised in 2010 that his hernia was worsening and required surgical repair and that when he found a claim against his former employer would not succeed he set about claiming compensation from the respondent. We reject that contention as speculation unsupported by any evidence. The respondent further contends that Mr Towns was aware, or should have been, of his responsibilities to report any matter going to the safety of a vehicle, and failed to do so. We fail to see how that contention advances the respondent’s case. Mr Towns impressed us a truthful witness who gave his evidence frankly and without exaggeration. We accept that his hernia was virtually asymptomatic up until April 2010 when he started driving the B-double. At that time, he had been driving a semi-trailer without any apparent difficulty for approximately ten years. We are satisfied that Mr Towns started to experience pain and discomfort within days of driving the B-double and that it continued over the four months he was driving that vehicle. Further, that his pain and discomfort ceased when he returned to driving the semi-trailer. We are satisfied, on the evidence, that driving the B-double involved a change in the work that Mr Towns was doing, in particular that his duties involved heavier lifting. Whereas the semi-trailer did not require him to lift any gates, he had to lift four sets of gates on the B-double, and draw four sets of heavy curtains against an incline with a pole that also required lifting. The respondent suggests that we cannot be satisfied that the aggravation of Mr Town’s hernia is related to his employment because we have no medical evidence about its state before April 2010 to compare it with. We do not accept that contention. We have Mr Town’s evidence, which we accept, about the change in his symptoms and size of his hernia from that date. The undisputed medical evidence, including from the respondent’s specialist, is that the increase in the size of Mr Towns’ hernia is consistent with the activities involved in driving the B-double. There is nothing to suggest that Mr Towns gave anything other than a frank description of his duties and injury to the doctors. Nor is there any evidence to suggest that any other factor suggested by the respondent, such as age, played any role in aggravating Mr Towns’ hernia. There is no evidence to support the finding that the pain which he felt while walking a long distance on one occasion played by significant part in aggravating his condition.