Quilligan v Copyshift Group

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST

S CI 2018 02200

JOHN FRANCIS QUILLIGAN	Plaintiff
v
COPYSHIFT GROUP PTY LTD (ACN 007 230 006)	First Defendant
MELBOURNE PACKAGING SUPPLIES PTY LTD (ACN 005 605 952)	Second Defendant
SWIFT TRANSPORT SERVICES PTY LTD (ACN 101 606 400)	Third Defendant
BENJAMIN CALLOS	Fourth Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATES OF HEARING:	8-12, 15-16 & 18-19 October 2018
DATE OF JUDGMENT:	14 December 2018
CASE MAY BE CITED AS:	Quilligan v Copyshift Group
MEDIUM NEUTRAL CITATION:	[2018] VSC 784

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NEGLIGENCE — Delivery of goods to workplace — Workplace injury — Incident affecting plaintiff’s foot and toe – Whether employer or supplier or delivery driver negligent — Whether incident caused injury — Wrongs Act 1958 ss 14B, 51.

WORKPLACE INJURY — Serious injury certificate — Application for leave to sue in negligence — Whether serious injury — Connection of injury to employment — Nunc pro tunc application — Workplace Injury Rehabilitation and Compensation Act 2013 ss 327, 328, 335(5), 357(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Hayes QC with Ms B. Hutchins	Slater & Gordon
For the First Defendant	Ms R. Annesley QC with Mr M. Clarke	Thomson Geer
For the Second Defendant	Mr I. McDonald	Norris Coates
For the Third Defendant	Ms R. Kaye	Moray & Agnew
For the Fourth Defendant	Ms G.J. Cooper	Ligeti Partners

HIS HONOUR:

The plaintiff, Mr John Quilligan, seeks an award of damages for a workplace injury said to have occurred on 24 June 2016 (‘the incident’). He says that this workplace injury led to a series of complications that culminated in the amputation of his right leg below the knee on 17 March 2017.

Quilligan is a blind diabetic, who by virtue of his diabetes is highly susceptible to infections. In essence, his claim is that the incident caused a micro-abrasion on his right foot which became infected. This infection lay dormant over the remainder of 2016, and in early 2017 seeped into the bone, causing osteomyelitis which necessitated the amputation of his lower right leg.

Quilligan was granted leave to proceed nunc pro tunc, without first having obtained a Serious Injury Certificate, and was allowed an expedited hearing of the proceeding pursuant to ss 357(3)(a) and 357(3)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’). This expedition was granted because Quilligan suffers from a life-threatening condition unrelated to these proceedings.

Therefore, the hearing in this proceeding combined both an application for a serious injury certificate to the Court with a common law negligence claim. Only if the Court is satisfied that Quilligan suffered a ‘serious injury’ within the meaning of Part 7 of the WIRCA will he be granted retrospective leave to bring proceedings and thus be entitled to recover damages in his common law negligence claim. The second claim is thus entirely conditional upon the success of the first.

Despite there being two discrete claims heard in one trial, the evidence adduced was relevant to both the serious injury application and the common law negligence claims. Only in submissions were counsel required to separately address each claim.

There are four defendants. The first defendant is Copyshift Pty Ltd (‘Copyshift’), who was Quilligan’s employer at the time of the incident. Copyshift is a transport company who specialises in moving easily damaged freight. Only Copyshift, as Quilligan’s employer, is entitled to defend his serious injury application pursuant to the WIRCA. The other defendants are only defending Quilligan’s common law negligence claims.

The incident occurred at Copyshift’s premises, when a delivery driver brought a pallet of plastic shrink wrap to its warehouse at Mulgrave on the back of a delivery truck. It is Quilligan’s case that the delivery driver attempted to start Copyshift’s Crown Lift Machine (‘CLM’) – a forklift-like machine, weighing at least 500 kgs – and in doing so accidentally reversed its wheels onto Quilligan’s foot causing a micro-abrasion.

The second defendant is Melbourne Packaging Supplies Pty Ltd (‘Melbourne Packaging’), from whom Copyshift purchased the pallet of plastic shrink wrap. The third defendant is Swift Transport Services Pty Ltd (‘Swift Transport’), a mid-tier Melbourne-based courier company that Melbourne Packaging engaged to transport the pallet from their warehouse to Copyshift’s premises. The fourth defendant is Benjamin Callos, the delivery driver sent by Swift Transport for this job and who allegedly drove the CLM over Quilligan’s foot.

Mr Quilligan

Quilligan is 60 years old. Over the course of his career he has worked in various business management roles in companies such as Toshiba and Lanier. He also ran his own company for 14 years. In 2013 he commenced working for Copyshift. At the time, Copyshift was in financial difficulty and Quilligan’s initial role was to assist with its finances and determine whether it could be salvaged through restructure. Quilligan ultimately became the head of sales and business at Copyshift, and was appointed as one of its three directors.

At the age of 32, Quilligan was diagnosed with diabetes. One consequence of this diabetes is that he is susceptible to infections. He must therefore take stringent care to prevent abrasions that could allow infection into his body. This susceptibility is exacerbated by Quilligan’s neuropathy – reduced sensation – in his extremities, particularly his feet. This reduced sensation can prevent Quilligan from detecting injury to his feet, as such injuries cause him little to no pain. In addition, Quilligan’s diabetic state has led to the development of myriad other health issues, which can be summarised as follows:

(a) in 2007 he lost most of his sight overnight and was deemed legally blind;

(b) in 2011 he had a kidney transplant which remains successful;

(c) in 2014 he had a triple heart by-pass from which he recovered well;

(d) in 2015 he was diagnosed with Charcot’s Foot syndrome – a foot condition caused by neuropathy that leads to the weakening of foot bones and ultimately foot deformity;

(e) in 2016 he suffered a ruptured gallbladder from which he made a reasonable recovery;

(f) this year he has been diagnosed with a condition that is predicted to end his life soon and is the reason for the expedited hearing.

Quilligan is clearly a remarkably resilient and capable man.

Most relevant to these proceedings are Quilligan’s Charcot’s Foot and blindness. Charcot’s Foot is a condition characterised by the disorganisation of a foot caused by a lack of sensation. Bones start to break down because the person is not aware of being in pain.[1] This condition caused significant problems between the metatarsals in Quilligan’s feet and had caused significant deformity to his medial right mid-foot. His condition was treated by a podiatrist through ‘total contact casting’, and then with a walking boot with customised orthotics once the condition stabilised.[2] In February 2016 and at the time of the incident, the condition had stabilised, though Quilligan was still only permitted to wear heavy and strong customised shoes with orthotics which, according to his podiatrist, ‘caused no issues’.[3] Therefore, at the time of the incident Quilligan’s Charcot’s Foot had stabilised, though he was still required to wear.[4] His vision impairment had an obvious impact upon the assessment of risk existing at the time of the incident, as he was less able to perceive and respond to hazards.
[1]Transcript of Proceedings, Quilligan v Copyshift & Ors (Supreme Court of Victoria, S CI 2018 02200, 8-12, 15-16 & 18-19 October 2018), 426 (‘T’).
[2]Exhibit L, Key Documents Folder 116 (‘KDF’); T 13-14.
[3]Ibid.
[4]T 428.1-428.21; KDF 116.

The incident

The first issue to consider is whether the incident on 24 June 2016 did in fact occur as alleged by Quilligan. He bears the onus of proof. This issue is in dispute between the parties as Quilligan and Callos each gave a different account of what occurred. Neither the serious injury application nor the common law negligence claim can succeed unless the incident is found to have occurred as Quilligan alleges.

Quilligan pleaded that on 24 June 2016, in the course of his employment with Copyshift, he ‘sustained injury when a servant or agent of the third defendant, namely the fourth defendant, caused a forklift to strike and run over [his] feet’.[5] He claimed that the CLM running over his feet caused a micro-abrasion to his foot that subsequently became infected and ultimately led to osteomyelitis – an infection of the bone - and the amputation of his lower right leg.
[5]KDF 10.

On the other hand, Callos gave evidence that, although he made a delivery to the Copyshift premises on that date, Quilligan was not struck by the CLM. Upon this basis the defendants all deny that the incident occurred at all, or alternatively, not as Quilligan alleges.

In the lead up to 24 June 2016 Copyshift purchased 96 rolls of plastic wrap from Melbourne Packaging, for use in the transportation of easily damaged freight. On the day of the incident, Melbourne Packaging engaged the services of Swift Transport to collect the rolls and deliver them to Copyshift. Swift Transport, which has about eighty drivers, sent one of them, Callos, to collect the load from Melbourne Packaging and deliver it to Copyshift. What occurred when Callos delivered the pallet of plastic rolls to Copyshift is in contention.

As there are two irreconcilable accounts as to what occurred when Callos delivered the rolls to Copyshift, it is necessary to set out the relevant evidence to determine whether Quilligan’s account of the incident is to be accepted. Quilligan bears the onus of proof.

The competing accounts
Mr Quilligan’s account

Quilligan gave evidence that Callos arrived at Copyshift in Mulgrave at 12:30pm with the delivery, driving a tray truck and entered the office. Along with Quilligan, Ms Mariah Vowles and Ms Larissa Thurley were working in the office at that time. Callos informed Vowles or Thurley that he had a delivery of shrink-wrap plastic, and he was directed to drive to the roller door entrance to the warehouse adjoining the office. Quilligan then went around to the back of the premises to open the roller door so that Callos could deliver the goods.[6] Ordinarily Mr Allan Toogood (‘Toogood’), a director of Copyshift, would deal with deliveries and the unloading of goods. However, on this day he had left the premises to replace a driver and make deliveries.[7]
[6]T 59-60.
[7]T 734.

Quilligan said that he greeted Callos at the roller door entrance to the warehouse while wearing white shoes and carrying a white ‘blind person’s’ cane.[8] He saw that the plastic rolls were stored on top of a pallet on the back of Callos’ flat tray truck and noticed that the rolls were insecurely loaded and appeared to be on the verge of falling off.[9] Quilligan told Callos that he could not help him unload the truck as he was blind, but told him that there was a ‘forky’ in the warehouse if he knew how to use it.[10] The ‘forky’ to which Quilligan referred was the CLM, which operated in a similar way to a forklift. Callos replied that these machines were easy to use.
[8]T 63–64.
[9]T 68.
[10]T 68-69.

Quilligan and Callos then moved to the CLM, which was parked underneath racking near the entrance at which they stood. Quilligan stood directly behind the machine while Callos stood to its left facing into the CLM with his right hand on the throttle and his left hand looking for the on-off button key on its left side.[11] Callos could not find the button to start the machine, so Quilligan called Toogood, Copyshift’s designated operator of the CLM, on his mobile telephone, which he described as a large ‘blind person’s phone’. Quilligan explained to Toogood that there was a delivery that required the use of the CLM, but that the delivery driver could not find the on-off button. He then held the phone out from his body and Toogood told him that ‘the key is on the left hand side’.[12]
[11]T 72-75; Exhibit C, Photographs of the CLM; KDF 195.
[12]T 80.

While this phone conversation occurred, Quilligan was standing about 10 inches behind the CLM with his right foot closer to it than his left foot.[13] Callos then found the on-off button and turned the key while his right hand was still on the throttle, causing the CLM to move backwards towards Quilligan. The machine struck Quilligan’s feet, with his right foot more heavily impacted as he was ‘semi-balanced’ with his right foot slightly in front of his left. The CLM rolled up his feet and hit him in the ankles.[14] Under cross-examination, Quilligan clarified that his evidence was that the CLM hit him, not that the wheel or blade hit him. As will be discussed, it was suggested by Quilligan in closing submissions that in fact the wheel only pinched his big right toe, causing the micro-abrasion, and that a black rubber ‘mud-flap’ above and in front of the wheel scraped along the top of his feet. This scraping caused the sensation that his feet had been run over. At the same time that his feet were struck, Quilligan was also struck in the chest by the handle/tiller of the CLM.[15]
[13]T 175-176.
[14]T 80-81.
[15]T 190-191.

Quilligan did not have a chance to get out of the way, as the CLM came back at him quickly and without warning.[16] Further, Callos caught Quilligan unawares as he did not tell him to move out of the way before turning on the CLM..[17]
[16]T 81-82.
[17]Ibid.

When he was struck, Quilligan blurted out expletives and Callos apologised. Quilligan curtly asked Callos to use the CLM to unload the truck, which Callos did before quickly leaving the premises. The machine was left with the pallet on its tines in the warehouse.[18]
[18]Ibid.

After the incident, Quilligan returned to the office next to the warehouse and immediately told Vowles what had happened and sat down on a lounge to examine his feet. Vowles gave evidence that she recalled Quilligan returning to the office ‘hobbling’ and ‘swearing and cursing a bit’.[19] Toogood gave evidence that when he returned to the warehouse - ‘about an hour and a half’ after receiving the phone call from Quilligan - he saw the CLM with the pallet still sitting on the tines, which were suspended in the air.[20] He then returned to the office where he recalled discussing what had happened with Quilligan, who reported to Toogood that the courier had backed the CLM into his ‘foot’ and his chest.[21] No entry was made into Copyshift’s incident log regarding the incident.[22]
[19]T 626.
[20]T 735.
[21]T 734.
[22]T 210.

Quilligan returned home later that day and explained to his wife, Mrs Coleen Quilligan, that his feet had been run over. He said that Mrs Quilligan, a trained nurse, then examined his feet but found no marks.[23] She gave evidence confirming that Quilligan had reported to her that ‘an effin stupid idiot had run over his foot, his right foot’ at the warehouse. She did not observe him limping,[24] and could not recall whether she had examined Quilligan’s feet on the day in question or not.[25]
[23]T 228.28-229.4.
[24]T 597.22.
[25]T612.25-612.28.

Mr Callos’ account

All defendants submitted that Quilligan’s account of events should be rejected, and that the account given by Callos should be accepted instead. Callos gave evidence regarding the events of 24 June 2016, but his account is irreconcilable in many respects with Quilligan’s account. His evidence was that while he did make a delivery to Copyshift that day, no incident occurred causing an injury to Quilligan or any other person.

According to his account, Callos collected the pallet of plastic rolls from Melbourne Packaging, whose workers loaded it onto his truck and began driving to Copyshift. On the way, a traffic incident occurred requiring him to suddenly and heavily brake. This incident caused the instability of the load noticed by Quilligan.[26]
[26]T 1029-1030.

Upon arriving at Copyshift, Callos reported to reception and informed an employee, presumably Vowles or Thurley, that he was there to deliver plastic rolls. Callos was told to take the truck to the back roller door entrance to the warehouse. There he waited until Quilligan opened the roller door.[27] Quilligan told Callos that he could not assist in the unloading but pointed out the CLM. Callos informed Quilligan that he was familiar with such machines from a former job.[28]
[27]T 1014.
[28]T 1048-1049.

Both Quilligan and Callos then gathered by the CLM. Callos was standing to its right side rather than its left. Quilligan tried to turn the machine on without success. Callos also tried, also without success.[29] Due to the pallet’s unstable state, confirmed in both Quilligan’s and Callos’ account, Callos was opposed to leaving the premises with the pallet and returning at another more suitable time. Because the CLM would not start, then, Callos decided to unload the truck by hand. He started to unstrap the pallet from the back of the truck.[30]
[29]T 1015, 1049.
[30]T 1015.

After he finished unstrapping the load Callos returned to Quilligan, who told him that the CLM had turned on and was working. Callos tested the machine and successfully began moving it forward and backwards. Callos then told Quilligan to step aside to give him space, and dragged the CLM to the truck and unloaded the pallet. Callos then returned the CLM back to where it had been with the pallet still on the tines, though they were low on the ground.[31]
[31]T 1015-1016.

The key differences between accounts

The key differences in Callos’ account of the events of 24 June 2016 are that:

(a) in the warehouse, Quilligan was using crutches rather than a single white cane;[32]
[32]T 1044.

(b) Quilligan did not call Toogood while he and Callos were trying to start the CLM, or at all in his presence;[33]
[33]T 1050.

(c) Callos was standing to the right side of the CLM where Quilligan claimed that he himself had stood;[34]
[34]T 1050.

(d) Callos did not turn on the CLM, but Quilligan did;[35]

(e) Callos did warn Quilligan to get out of the way when he started operating the machine;[36]

(f) the CLM did not lurch backwards and did not strike Quilligan.[37]

[35]T 1052.

[36]T 1015.

[37]T 1016-1017.

As mentioned, all defendants submitted that Callos’ account of events should be accepted over Quilligan’s account. The submissions of each party on this issue will be discussed below.

Witnesses

In addition to the accounts of Quilligan and Callos, three lay witnesses gave evidence in relation to the incident – Mrs Quilligan, Mr Toogood and Ms Vowles. All three are relied upon by Quilligan to corroborate his version of events.

Mrs Quilligan

As already discussed, Mrs Quilligan gave evidence that Quilligan returned home on the day of the incident and told her what had happened. Mrs Quilligan could not recall what date or month in which the incident occurred, though estimated that it was approximately two years ago.[38] He told her that ‘a guy in the warehouse had run over his foot’,[39] and said that he was in pain. She said that he told her that it was his right foot that had been impacted, and that it was a forklift that had run over it. Mrs Quilligan asked him if his foot had been checked for injury and he said that he had checked it at the office. She could not recall whether she had inspected his foot.[40] He was not limping that evening.[41]
[38]T 605.
[39]T 597.
[40]T 606.
[41]T 597.

Mr Toogood

Toogood gave evidence that he recalled an occasion when he had been away from the warehouse and had received a phone call from Quilligan, who told him that there was a courier driver at the warehouse to unload a delivery, who wanted to use the CLM, but could not turn it on.[42] Toogood said that he explained to Quilligan how to turn the CLM on and that the call ended within 30 seconds once the machine had turned on.[43]
[42]T 734.
[43]Ibid; T 768.

Upon returning to the warehouse, Toogood recalled seeing the pallet of wrap suspended on the tines of the CLM approximately 30cm off the ground.[44] He hand unloaded the pallet because he thought that the rolls of wrap were insecurely loaded and ‘practically falling off the pallet’.[45] He then entered the offices where Quilligan told him how the courier driver had backed the CLM into him and said that his foot and chest had been impacted.[46] Toogood was reliant on what Quilligan told him had occurred in the warehouse, and he only recalled the date by recourse to the invoice from Melbourne Packaging.[47] He admitted to having numerous conversations about the incident with Quilligan.[48]
[44]T 755.
[45]T 736.
[46]T 735.
[47]T 751-752.
[48]T 784-785.

Toogood also gave evidence about the CLM as he was familiar with its operation. He said that it was electric and made no sound when turned on, and that it is moved by tilting an upright tiller in the desired direction while simultaneously twisting the throttle.[49] The tiller is spring loaded and not very stiff, so is easy to move, and needs only to move about 20-30 degrees downward to start moving the machine.[50] There is a red emergency stop button on top of the tiller which stops the machine if activated. However, Toogood claimed that this button is not very sensitive due to the CLM’s age; he said that it was ‘about 30 years old’ and was purchased second-hand.[51] At the base of the machine there is a black flap in front of the wheel. Despite its solid appearance this flap is in fact made of flexible rubber and acts as a mudflap, rather than a guard that prevents things from being run over.[52] He said that it would not be hard to make the CLM move accidentally by tilting the tiller and twisting the throttle.[53]
[49]T 764-765.
[50]T 749, 778.
[51]T 777.
[52]T 762-763.
[53]T 779.

Ms Vowles

Ms Vowles was working at the Copyshift offices on the day of the incident. She said that a courier driver arrived to deliver plastic wrap and asked if anyone could assist with the delivery, as he required a forklift to unload. She said that either she or Ms Thurley opened the warehouse door for the driver. Quilligan then walked out from the office to the warehouse to supervise the driver using the forklift, and returned a short time later ‘hobbling’ and ‘swearing and cursing’. She did not recall Quilligan reporting the incident to her at the time.[54]
[54]T 626.

Mr Quilligan’s submissions about the incident

Quilligan submitted that his version of events was more likely to be true than Callos’ account. His submissions fell into the following categories: the evidence of the three corroborative witnesses, the reliability of his own evidence, the unreliability of Callos’ evidence and the dynamics of the incident.

The corroborative witnesses

The testimony of Mrs Quilligan, Toogood and Vowles has already been outlined. Quilligan principally relied upon their accounts in support of his version of events. He contended that his wife’s evidence that he returned home on the day of the incident complaining about foot pain corroborated the fact that he was in pain from an incident involving his foot on that day and that he was informing others that a person had run over it with a forklift. Despite being challenged in cross-examination, Mrs Quilligan was unwavering in her assertion that Quilligan told her that a person had run over his foot.

Quilligan relied upon Toogood’s evidence to corroborate both the fact that he called him and asked how to turn on the CLM and the fact that he reported to him that the courier driver had driven over his foot. Toogood’s evidence therefore further demonstrated that Quilligan was reporting the incident to others.

Toogood’s evidence also confirmed that the plastic wrap was insecurely loaded on the pallet and dangerous. Quilligan also relied on Toogood’s evidence that the CLM could quite easily be accidentally turned on and that the black ‘guard’ was really a flexible mud flap unable to protect a foot from being run over.

Vowles’ evidence was also relied upon to corroborate the delivery driver’s presence at the warehouse, Quilligan‘s assistance to him in unloading the delivery and Quilligan’s clear pain and discomfort immediately after the delivery had occurred. In light of the other evidence, Quilligan argued that Vowles’ report of his injury strongly suggested that his foot had been run over by the CLM.

Quilligan also relied upon some of Callos’ evidence to support his own account. Despite the key difference in their accounts, including whether Quilligan’s foot was run over, Callos’ evidence corroborated many important facts. Most notably, Callos’ evidence confirmed that the pallet was in poor shape with the rolls improperly wrapped, that Quilligan greeted him at the roller door and informed him of his vision impairment, that Callos told Quilligan that he was familiar with the CLM and was able to use such machines, that Callos ultimately operated the CLM and used it to unload the pallet, and that Callos left the Copyshift premises in a hurry.

Mr Quilligan’s reliability compared with Callos’

Quilligan argued that his evidence was more reliable than Callos’. Quilligan was subjected to thorough cross-examination by four defendants over three successive days, and was polite, frank and candid in the manner in which he gave evidence. Only minor inconsistencies in his evidence could be established, which were understandable for a him, a lay witness, who had been giving evidence for so long. He argued that he was unmoved in his evidence on the key elements of the incident.

Quilligan also addressed the criticism that he did not file an incident report, despite the Copyshift policy which mandated that every incident be recorded and his status as a director of Copyshift. The absence of contemporaneous written records was relied on by the defendants to cast doubt on Quilligan’s version of events. Quilligan explained that he made no incident report at the time simply because he then considered the incident to be minor, not because it did not happen. Quilligan was sore, but did not think that any injury of consequence had been inflicted and thus did not think it necessary to file any incident report with his employer.[55]
[55]T 771.

Quilligan submitted that, in contrast to his evidence, Callos was agitated and unreliable. He frequently gave the explanation that he was stressed on the day of the incident to excuse his conduct, which included breaching Swift Transport’s policy on the use of third party machinery, being in a hurry, not reporting a near accident on route to Copyshift, not calling Swift Transport when there was no appropriate person at Copyshift to assist in unloading the truck, and not reporting the use of the CLM to Swift Transport.[56]
[56]T 1128.

Quilligan submitted that the fact that Callos used the CLM machine in direct contravention of Swift Transport’s policy and did not report it suggests that he wanted to avoid the consequences of his misbehaviour. He said that termination was the likely consequence of using a third party’s equipment and that Swift Transport drivers were instructed not to assist with unloading in any circumstances. Callos admitted that, at the time, he needed the job with Swift Transport. In light of this, and the fact that Callos did not report his use of the CLM, Quilligan sought the drawing of an inference that Callos similarly did not report running over Quilligan’s foot to Swift Transport because he knew it would have led to the termination of his contract.

Quilligan also argued that Callos’ claim that he was using crutches, rather than his walking cane, was implausible and therefore a ‘red flag’ as to his reliability. His podiatrist had not given evidence that he had needed crutches after February 2016 due to his Charcot’s Foot condition stabilising; he was using only his white cane.

Quilligan also submitted that Callos’ claim that he turned the CLM on is implausible. Quilligan had never operated a CLM or any similar equipment, and was blind. In contrast, Callos admitted that in a prior job he had frequently used similar machines and was familiar with their operation.

Dynamics of the incident

Quilligan argued that the dynamics of the incident made his account of the CLM striking him inherently probable. He reported that he was standing right behind the centre of the CLM. From where he was standing, he argued that either the lower edge of the black rubber flap – or alternatively the guard at the bottom of the machine 100mm off the ground – scraped over the top of both his feet as the CLM reversed back. The drive wheel, approximately 150-200mm wide, ran into the front of his foot, catching and pinching his right big toe without rolling up his feet. As this occurred, the tiller of the machine struck Quilligan in the chest. It was the wheel pinching his right big toe that caused the micro-abrasion, which lead to the infection, subsequent osteomyelitis and amputation.

The defendants’ submissions

The defendants submitted that Callos’ account of events should be accepted over Quilligan’s. I will summarise their submissions collectively, save for where individual differences require mention.

Mr Quilligan’s reliability

The defendants submitted that Quilligan was an unreliable witness whose account bore many inconsistencies and who had, after the fact, sought to reconstruct a cause for his amputation as other than the natural consequence of his diabetic condition.

Swift Transport and Callos particularly emphasised the implausibility of Quilligan’s account of the incident. Quilligan initially claimed that he stood about 25 cm behind the CLM with his right foot 4-5cm in front of his body.[57] Quilligan’s claim that he was hit simultaneously by the tiller in his chest and the mudflap or wheel on his feet was therefore impossible, as the tiller was tilted downwards and extended from the machine. Quilligan conceded that he could not be hit by the tiller and the wheel or mudflap at the same time.[58] They also argued that the tiller could not have struck Quilligan on the chest and then proceeded further backwards to strike his feet; the evidence was instead that the machine stopped once the tiller struck Quilligan’s chest.[59] Therefore, Quilligan’s account was inherently implausible.
[57]T 175-176.
[58]T 202.
[59]T 197.

The defendants also highlighted inconsistencies between Quilligan’s account and other witnesses’ accounts. For example, Quilligan claimed that his wife Mrs Quilligan inspected his feet on the evening after the incident and reported seeing no marks on his feet, but Mrs Quilligan did not recall inspecting his feet. Quilligan said that every time he went to his podiatrist or GP in the weeks after the incident he complained of increasing right foot pain,[60] and that he had told them about the incident and they had checked his foot and noted that it was a bit red.[61] But there was no evidence of this in the medical records, and his first post-incident appointment with his GP was recorded as being for cough and dermatitis. Quilligan then revised his evidence and stated that he had the ‘odd discussion’ with his GP about the incident and would not necessarily have reported severe pain until late 2016.[62]
[60]T 173-174.
[61]T 219.
[62]T 234-235.

The defendants also criticised Quilligan’s account of the incident because he had not sought medical attention immediately after it, as they contended he would have if any foot-related trauma had occurred. Quilligan’s evidence was that he already had an appointment with his GP scheduled five days after the incident, and that even if he had immediately wanted an appointment with that particular GP he was unlikely to secure one on such short notice.[63] However, the GP’s evidence was that Quilligan would have been able to obtain an appointment at any time due to his unique and vulnerable medical state.[64]
[63]T 321.
[64]T 531.

Finally, the defendants argued that, had the event occurred as claimed by Quilligan and had his foot indeed been crushed by heavy machinery, there would have been overt injury in the form of redness, bruising, swelling, or even fractures.[65] Yet there was no evidence of any such injury in any of the medical reports or notes.
[65]T 651, 691.

Mr Callos’ evidence

The defendants submitted that, in contrast to Quilligan, Callos gave his evidence in a frank and candid manner. Throughout his evidence, he consistently denied Quilligan’s account and gave his own account in a measured and internally consistent manner. His evidence was not disturbed under cross-examination.

The defendants argued that the concessions made by Callos fortified his reliability, particularly his admission that he had breached Swift Transport’s policy. He freely admitted to using the CLM to unload the pallet despite this being prohibited by Swift Transport. He stated, plausibly, that he did not report his use of the CLM simply because there was nothing of note to report. He had no real motivation to lie.

Reliability of the corroborative witnesses

The defendants submitted that the corroborative evidence of Mrs Quilligan, Toogood and Vowles was mostly unreliable and vague, and even if accepted, confirmed very little about the actual incident.

Mrs Quilligan’s evidence was impugned principally on the basis of its vagueness. She could not recall with any degree of accuracy the date or time of year that the incident was said to have occurred, and had only a vague recollection of her interaction with Quilligan on the evening of the incident. She could not recall either the context in which Quilligan told her about the incident, or whether she inspected his feet, and could give no evidence about the identity of the person who had run over his feet. In addition, Mrs Quilligan’s evidence was that Quilligan complained about his right foot having been run over, whereas his evidence was that he reported to her that both of his feet had been run over. The defendants also argued that, even if Mrs Quilligan’s evidence were accepted, it would corroborate only that Quilligan told her about an incident at some stage and could not confirm that the incident had occurred as claimed.

Toogood’s evidence was impugned on the basis of his own admission that his recollection of the day of the incident was vague and that he was entirely reliant on what Quilligan had told him about the incident in a number of subsequent conversations. The defendants suggested that Quilligan’s conversations with Toogood had influenced his recollection of the day. The evidence suggested that Toogood’s phone call with Quilligan could not have ended before the CLM struck him, as the machine supposedly turned on while Toogood was still on the phone. The defendants therefore submitted that, had the incident occurred as alleged by Quilligan, Toogood would have been able to hear Quilligan’s screaming and cursing upon being struck, but he had not. Again, the defendants argued that even if accepted, Toogood’s evidence corroborated only the fact that Quilligan had called him to ask how to turn the CLM on, not that it turned on and leapt back into Quilligan, nor even that Callos was present while that phone call took place.

Vowles’ evidence was also criticised by the defendants for being vague and unhelpful. While she gave evidence that Quilligan hobbled in swearing after the alleged incident, this could have been for any number of reasons and was therefore of little assistance to Quilligan. Vowles conceded that she had no recollection of Quilligan reporting the incident to her despite the fact that, in his WorkCover claim, Quilligan listed her as a witness to the incident and a person to whom he made a report.[66] Further, her evidence was that either she or Ms Thurley opened the warehouse door, which was inconsistent with Quilligan’s evidence that he opened the door.
[66]KDF 98.

Jones v Dunkel

Copyshift and Swift Transport argued that Quilligan’s failure to call Thurley as a witness should be the basis for an adverse inference in accordance with the principle in Jones v Dunkel.[67] Thurley was working in the office on the day of the incident alongside Vowles. Vowles’ evidence was vague and suggested only that Quilligan was in pain for a reason unknown. Given this poor recollection, the defendants argued that Thurley should have been called to corroborate Quilligan’s and Vowles’ evidence on what had occurred immediately before and after the incident.
[67](1959) 101 CLR 298.

The defendants argued that her evidence had the potential to clarify what occurred immediately after the incident, and that Quilligan should have called her. While Thurley no longer worked for Copyshift, Vowles said that they were still friends on Facebook and that she was contactable. Quilligan offered no explanation as to why she was not called. On this basis, the defendants sought an inference adverse to Quilligan that Thurley’s evidence would not have assisted his case.

No contemporaneous reports

The defendants argued that the lack of contemporaneous reporting of the incident compelled the view that Quilligan’s account of the incident was incorrect. As mentioned, Quilligan, who was a director of Copyshift, did not made a Copyshift incident log entry as was required by its policy. The defendants submitted that Quilligan’s explanation for this omission – that it was not reported due to his initial belief that the injury was minor – was neither compelling nor adequate. There was also no complaint by Quilligan or Copyshift to Melbourne Packaging or Swift Transport regarding the incident.

The first medical reports of the incident did not occur until after the amputation. Despite visiting his GP Dr Dominic Rillstone, his podiatrists at Berwick Health and at Monash Health and his treating endocrinologist Dr Soldatos on a regular basis after the incident, they recorded no complaint or comment about the incident. This was despite the facts that an injury to Quilligan’s foot would have been within the expertise of the medical practitioners and that Quilligan knew that his feet were hyper-vulnerable and that he should report any trauma and seek immediate medical attention. The defendants also referred to Quilligan’s affidavit stating that his podiatrist had tested his foot for bone damage.[68]
[68]Affidavit of John Francis Quilligan sworn 19 March 2018; KDF 93.

Conclusion of the defendants’ submissions

The defendants argued that Quilligan’s account could not be accepted, due to the inconsistencies within it, insufficient evidence supporting it and a competing account that was more compelling. His account appeared to be a reconstruction rather than a recollection. They noted the possibility that there was an incident that day of which Callos was simply unaware, the blame for which Quilligan had wrongly attributed to Callos.

The defendants emphasised that if the Court preferred neither Quilligan’s or Callos’ account, then Quilligan has failed to discharge his onus and his claim fails.

Analysis

I find that an incident occurred on 24 June 2016 that caused discomfort to Mr Quilligan’s right foot and first right toe. I find that he immediately reported the incident to office staff, later that afternoon to Mr Toogood and that evening to his wife.

The weight of the evidence of Mrs Quilligan, Toogood and Vowles cannot be understated. Though not directly corroborative of the fact that Quilligan’s foot was struck by the CLM, their evidence collectively fortifies his account. Their vagueness is explicable by reference to the period of time that has passed, combined with the initial belief of all involved that any consequences were exceedingly minor.

Although it is possible that Thurley, if called to give evidence, would have been able to further clarify the events that occurred immediately before and after the incident, I do not think that the defendants have established that an adverse inference ought to be drawn because she was not called to give evidence. It is unlikely that her evidence would have added to Vowles’ evidence.

Although Quilligan can be faulted for his decision not to file an incident report with his employer Copyshift, and to not immediately report the incident to his medical professionals, I accept that the collective assessment of the incident was that it was minor and without consequence. I therefore do not accept that a lack of contemporaneous reporting discredits his account as the defendants submitted.

I generally prefer Mr Quilligan’s account of the incident to Mr Callos’, although with Mr Quilligan’s limited eyesight, he did not see or indeed recall all that happened. For instance, I find that one of the two office workers opened the door to the warehouse and not Mr Quilligan.

Mr Callos was a busy man that day with other jobs to complete and was feeling under stress. As it was a minor incident, he may have paid little attention to it and had no reason to recall it until months later. He was wrong in suggesting that Mr Quilligan was using crutches to walk. It is also important that Mr Callos had operated or used fork lifts and Mr Quilligan had not.

I do not accept that Quilligan turned on the CLM by himself while Callos was otherwise occupied with unstrapping the pallet. It is implausible that a blind person, who had never used such a machine, would have turned it on. I consider that it is probable that Callos, a person familiar with the use of similar machines, turned it on.

I consider it more probable that Callos was involved in starting the CLM and moving it back towards the truck, and that as it started, it came into contact with Quilligan’s right first toe and right foot. He knew how to operate the CLM, whereas Quilligan did not. Mr Toogood’s account supports Quilligan’s evidence that he and Mr Callos were attempting to start the machine.

I find on the basis of Quilligan’s evidence that he spoke to Mr Toogood on the phone to find out how to turn the CLM on and off. He and Mr Callos were standing near the machine. I consider it probable that after Callos managed to start the machine, it made contact with Quilligan’s right first toe and right, but not to any significant extent. I find that when Callos pressed the start button on the CLM it did move backwards a short distance 150-200mm and made contact with his right foot and first right toe, but not to any significant extent.

I do not accept Callos’ evidence that he warned Quilligan to step aside. Instead, I consider that it was more likely that the machine was suddenly turned on by Callos with Quilligan in close proximity and that Callos inadvertently struck Quilligan’s right first toe and parts of his right foot almost immediately when it started.

While Callos was disobeying company policy in operating the CLM, it seems clear enough that he felt obliged to unload his truck.

I find that the incident did not, at least initially, cause any significant harm to Quilligan’s right first toe and foot and that explains why he did not fill in any incident report form. He considered the incident minor. This conclusion is a significant matter for the later issue of causation.

I consider it plausible that Callos did not realise that he struck Quilligan’s foot during the incident, especially in light of the weight of evidence that the incident was considered minor by Quilligan.

Serious Injury Application

Part 7 of the WIRCA provides a gateway for workers who are injured at work who wish to sue in common law negligence. One avenue for a worker seeking to sue in negligence for a workplace injury is to obtain leave from this Court.[69] Therefore, Quilligan’s entitlement to claim damages from the defendants for their alleged negligence is dependent on this Court granting him leave to do so. Leave can only be granted if the Court is satisfied that Quilligan has suffered a ‘serious injury’ within the meaning of Part 7 of WIRCA, and that ‘serious injury’ either arose out of, in the course of, or due to the nature of Quilligan’s employment.[70] He then receives a Serious Injury Certificate.
[69]Workplace Injury Rehabilitation and Compensation Act 2013, s 335(2)(d).
[70]Workplace Injury Rehabilitation and Compensation Act 2013, s 327.

There are two principal preconditions for the granting of a Serious Injury Certificate. The first is that a worker a suffered a ‘serious injury’, as defined by the s 335(5) ‘narrative test’.[71] The second is that the injury was ‘work-related’, in that it arose out of, or in the course of, or due to the nature of, employment.[72]
[71]Ibid s 335(5);
[72]Ibid s 327, 328.

Copyshift conceded that Quilligan’s osteomyelitis and subsequent amputation constituted a ‘serious injury’. However, it disputed that the injury was work-related, and argued that the injury was caused by a wholly different and non-work related causal mechanism. It therefore submitted that Quilligan should not be granted leave to commence common law proceedings under Part 7 of the WIRCA.

The determination of this issue involves similar issues to the question of causation in Quilligan’s common law negligence claim. If the Court is not satisfied that the incident was the cause of Quilligan’s osteomyelitis, then neither the application for the Serious Injury Certificate nor Quilligan’s common law negligence claim can succeed. Accordingly, these issues will be dealt with together later, as part of the causation considerations of Quilligan’s common law negligence claim.

Negligence

Assuming for now that a Serious Injury Certificate were granted, Quilligan would still need to be successful in his common law negligence claim. In order to do so, he would need to establish the standard elements of a cause of action in negligence – a duty of care, a breach of that duty, and a causal connection between breach and damages.

Duty of care

Quilligan submitted that each of the four defendants owed him a duty to take reasonable care. The general principles guiding the establishment of such a duty are well established. As such a duty must be established vis-à-vis each individual defendant, each of whom has a different factual relationship with Quilligan, the existence of each respective duty will be considered in turn.

Owed by Copyshift
The parties’ submissions

Quilligan submitted that employers owe their employees a non-delegable duty to take reasonable care to avoid exposing them to unnecessary risks of injury. He also relied on s 14B of the Wrongs Act 1958.[73] The existence and scope of this duty was outlined by the High Court in Czatyrko v Edith Cowan University[74] as follows:

… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.[75]

[73]‘An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises’.

[74](2005) 214 ALR 349 (‘Czatyrko’).

[75]Ibid 353 [12] (citations omitted).

Further, Quilligan relied on the later High Court case of Andar Transport Pty Ltd v Brambles Limited[76] to demonstrate that Mr Quilligan’s status as a director of his employer company did not prevent the company owing him a duty of care.
[76](2004) 217 CLR 424, 444-447 [45]-[52] (‘Andar’).

Copyshift admitted that it owed Mr Quilligan a non-delegable duty of care, though it also emphasised that this duty was not one of perfection, and did not impose a duty to protect employees from any danger that could conceivably arise.[77]

Analysis

[77]First defendant’s closing submissions [87].

In my opinion, Copyshift owed Quilligan a non-delegable duty to take reasonable care. It was to be treated in law as his employer and, as the High Court stated in Czatyrko, ‘an employer owes a non-delegable duty to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.’[78] Where there was a real risk of injury to him in the performance of his duties, Copyshift had to either devise a method of operation for the performance of the task that eliminated that risk or provide adequate safeguards. It had to take into account the possibility of thoughtlessness, or inadvertence, or carelessness.[79]

Owed by Melbourne Packaging
The parties’ submissions

[78]Czatyrko (2005) 214 ALR 349 353 [12].

[79]Czatyrko (2005) 214 ALR 349.

Quilligan submitted that:

[Melbourne Packaging Supplies Pty Limited] as the party who arranged the delivery of the rolls of stretch wrap plastic to Copy Shift owed Quilligan a duty of care to:
(a)ensure that it employed competent servants or agents to attend the premises; and
(b)take reasonable care to avoid exposing him to unnecessary risk of harm.

There was a reasonably foreseeable risk that individuals present at Copy Shift’s premises could be injured through unsafe delivery processes.[80]

[80]Plaintiff’s closing submissions [97]-[98].

Melbourne Packaging denied that it owed Quilligan any such duty. It relied on the decision of the High Court in Stevens v Brodribb Sawmilling Company Pty Ltd[81] as establishing that, ordinarily, a principal is not liable in negligence for the actions of an independent contractor. Instead, the extent of any such duty must be determined by the circumstances of the case, with reference to the elements of reasonable foreseeability and proximity,[82] as discussed by Deane J in Jaensch v Coffey.[83] In particular, his Honour stated that:

Where a duty of care exists under the common law of negligence, it requires the taking of reasonable care to avoid a reasonably foreseeable and real risk of injury. That being so a relevant duty of care will have existed in a particular case only if there was some reasonable foreseeability of a real risk of that injury of the kind sustained would be sustained by a member or members of a class which included the particular plaintiff. [84]

[81](1986) 160 CLR 16 (‘Stevens’).

[82]Ibid 30-33 (Mason J), 47-48 (Brennan J), 50 (Deane J).

[83](1984) 155 CLR 549.

[84]Stevens (1986) 160 CLR 16, 50 (Deane J).

While such a duty was established in Stevens, Melbourne Packaging argued that important factors that were present in that case are absent here. In that case both the primary tortfeasor and plaintiff had contracted directly with the defendant principal, neither of which were the case for Melbourne Packaging. The defendant principal in Stevens had closely supervised the activities of the primary tortfeasor and plaintiff, supervision which was wholly absent from Melbourne Packaging’s relationship with the other parties in this case.

Additionally, Melbourne Packaging argued that at the time it dispatched the pallet of goods it was not reasonably foreseeable that Copyshift, due to the atypical absence of a particular staff member, would be unable to unload it. It was not reasonably foreseeable that a blind and inexperienced employee would take it upon themselves to supervise the unloading. Neither was it reasonably foreseeable that Callos, upon encountering these difficulties, would not either seek further instructions, or return the goods to either Melbourne Packaging or Swift Transport when it became clear that the goods could not be unloaded. Nor was it reasonably foreseeable that Callos would breach company policy by operating heavy machinery to unload the pallet, injuring an employee of Copyshift in the process.

It argued that the requisite foreseeability was especially lacking in circumstances where Melbourne Packaging was never contacted by Copyshift to inform it of any special timeframe required for delivery of goods. Accordingly, Melbourne Packaging argued that ‘it was not reasonably foreseeable to the second defendant that the plaintiff would be injured in the rather bizarre circumstances that occurred on this occasion and therefore there was no duty of care owed.’[85]

Analysis

[85]Second defendant’s closing submissions [21].

While the precise circumstances of Quilligan’s injury could not have been reasonably foreseeable to Melbourne Packaging, it is clear that a failure to take reasonable care by it could reasonably be foreseen to affect the health and safety of the employees of the customers who received the goods. Accordingly, a duty of care was owed by Melbourne Packaging to Quilligan, though that duty was shaped by its lack of control over the contractors delivering the shrink wrap.

In these circumstances, I consider that Melbourne Packaging owed two limited duties to Quilligan. First, as it used a third party delivery company to transport the goods to Copyshift, it was required to engage a delivery company that was competent and reputable. Secondly, as it packed the pallet onto Callos’ truck, it was required to do so in such a way that it did not expose Quilligan to a foreseeable risk of injury.

Owed by Swift Transport

The parties’ submissions

Quilligan made the following submissions about the duty of care owed by Swift Transport:

Swift, as a specialist delivery company who employed or alternatively engaged Callos to attend Copy Shift’s premises and deliver the pallet, owed Quilligan a duty of care to:
(a)ensure that it employed competent servants or agents to attend the premises; and

(b) take reasonable care to avoid exposing him to unnecessary risk of harm.
There was a reasonably foreseeable risk that individuals present at Copy Shift’s premises could be injured through unsafe delivery processes.[86]

[86]Plaintiff’s closing submissions [102]-[103].

Swift Transport denied that it owed Quilligan a duty of care, but did not make submissions on this point.[87]

Analysis

[87]Third defendant’s closing submissions, [23]-[32].

I am find that Swift Transport owed a duty of care to Quilligan in connection with arranging the delivery of the plastic wrap to Copyshift’s premises. It was engaged to deliver the pallet of shrink wrap to Copyshift. It effected that delivery through its drivers over whom, as will be discussed below, it exercised a significant degree of control. If it failed to take reasonable care, that could place employees of businesses to whom deliveries were made at a reasonably foreseeable risk of harm. Therefore, it owed Quilligan a duty to adopt safe delivery procedures and to have competent servants or agents attend the premises to which deliveries were being made. This duty also required Swift Transport to avoid exposing Quilligan to unnecessary risks of harm.

Owed by Callos
The parties’ submissions

Quilligan submitted that ‘Callos, as a specialist delivery driver, owed a duty to [him] to ensure he was competent and capable of delivering good[s] without exposing [him] to unnecessary risk of injury.’ He also submitted that ‘[t]here was a reasonably foreseeable risk that individuals present at Copyshift premises could be injured through unsafe delivery processes.’[88]
[88]Plaintiff’s closing submissions [107]-[108].

Callos conceded that ‘he owed the plaintiff a duty to take reasonable care in performing the delivery so as to avoid foreseeable risk of injury to him.’[89]

Analysis

[89]Fourth defendant’ closing submissions [3.3].

I find that Callos owed a duty of care to Quilligan in connection with his delivery of the plastic wrap to Copyshift’s premises. He was the delivery driver with carriage of the pallet. He had control over the manner of delivering it to Copyshift, and over the resolution of problems with its unloading once it had arrived. A failure by him to take reasonable care in either of those activities could, reasonably foreseeably, create a risk of injury to employees of a companies at which those goods were to be unloaded. Accordingly, Callos owed Quilligan a duty to take reasonable care in performing the delivery so as to avoid foreseeable risk of injury to him.

Vicarious Liability

Before considering the possible breaches of duties of care by each defendant, the legal relationship between Swift Transport and Callos must be determined. If the relationship was that of employer and employee, as asserted by Callos, then Swift Transport will be vicariously liable for any negligence by Callos. If, as asserted by Swift Transport, the relationship was that of principal and contractor, then Callos will be liable for any such negligence.

The leading authority on this issue remains the decision of the High Court in Hollis v Vabu.[90] Put broadly, the test to discriminate between employees and contractors is one of control. This overarching test was reflected in a number of factors in Hollis v Vabu that were relevant in determining that the bicycle couriers in that case were in fact employees, including:[91]
[90](2001) 207 CLR 21.
[91]Ibid 42-45 [48]-[57].

(a) The unskilled nature of their work, and their consequent inability to make a career or build up goodwill as an independent bicycle courier;

(b) The small degree of control the couriers had over the manner of performing work, including enforced 9:00am start times, an inability to refuse work, and an inability to delegate tasks to others or work in parallel with another courier company;

(c) The requirement to wear uniforms bearing a company logo, partly in order to identify couriers as part of the company’s staff;

(d) The need for deterrence, especially as the courier company had no means by which the public could identifying its couriers personally so that an injured member of the public could seek redress against them personally; there was therefore the need to hold somebody to account – Vabu – to incentivise inadequate training and worker standards;

(e) The courier company’s superintending of the couriers’ finances, including producing pay summaries, docking wages in the event of equipment and uniforms not being returned, taking out insurance for the couriers and deducting the cost from their pay, limiting the times when annual leave could be taken and requiring 14 days’ notice for leave applications,

(f) Being paid per delivery was held to simply be the natural way of remunerating the couriers, rather than indicating a principal-contractor relationship;

(g) The couriers’ responsibility for bringing and up keeping their own bicycles and equipment was held not to be indicative of a contractor-principal relationship, especially in circumstances where purchasing such items involved a relatively low capital outlay, and such items were capable of being used for non-work activities.

The High Court said of the work relationship in Hollis v Vabu that it was:

not a case where there was only the right to exercise control in incidental or collateral matters. Rather, there was considerable scope for the actual exercise of control. Vabu's whole business consisted of the delivery of documents and parcels by means of couriers. Vabu retained control of the allocation and direction of the various deliveries. The couriers had little latitude. Their work was allocated by Vabu's fleet controller. They were to deliver goods in the manner in which Vabu directed. In this way, Vabu's business involved the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu's business. It was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time; rather, as the two documents relating to work practices suggest, to its customers they were Vabu and effectively performed all of Vabu's operations in the outside world. It would be unrealistic to describe the couriers other than as employees.[92]

[92]Ibid 44-45 [57] (citations omitted).

The parties’ submissions
Swift Transport

Swift Transport sought to distinguish its relationship with its couriers from that in Hollis. It submitted that Callos was able to commence work when he wanted to and was not penalised for starting late,[93] reject work that came up on his PDA device/mobile phone app,[94] and select and arrange his own insurance.[95] Drivers were allowed to take leave at a time of their own choosing,[96] although January was suggested to be a good time to do so. Swift Transport submitted that the uniforms its drivers wore were for the identification of Swift Transport drivers in busy loading zones rather to advertise the company.[97] Swift Transport also said that Callos’ trading in of his old truck for a new one when he started driving for it was a much greater capital outlay than a bicycle,^[98] and, as a tray truck, this equipment was capable of fewer non-work related uses than the bicycles in Hollis v Vabu.
[93]T 1023.27-1024.5.
[94]T 913.15-25.
[95]T 1019.16-20.
[96]T 991.7-991.25.
[97]T 910.23-31; 1024.27-1025.8.
[98]T 1005.1-2.

Swift Transport submitted that here there was a contrasting class of a few Swift Transport company drivers who were paid by the hour, had to clock on and off at Swift Transport premises, provided a tax file number rather than an ABN, had income tax remitted for them, worked more structured hours, and had expenses and equipment paid for by Swift Transport.

Additionally, Swift Transport argued that it made no superannuation contributions for Callos, and that he was able both to negotiate a later than usual nominal start time of 10 am and to sometimes clock on as late as 11am. Callos could and did work other jobs while employed as a courier driver and, notably, he gave evidence that he considered himself to be a contractor rather than one of Swift Transport’s employee drivers.[99] Callos could also take breaks when he wanted and had no Swift Transport signage on his truck. Though Swift Transport preferred that their drivers’ trucks had signage on them,[100] Callos did not attach signs to his truck as he wanted to trial the job first.[101] Callos was only required to give 10 days’ notice to quit, and had the power to work through a corporate entity if he so wished.

Callos

[99]T 1026.

[100]T 911.

[101]T 1009.14-1009.20.

Callos submitted that this case was on all fours with Hollis v Vabu, except for the greater capital outlay in a truck vis-à-vis a bicycle. Referring to Buchanan J’s decision in Ace Insurance Ltd v Trifanovksi,[102] Callos submitted that ‘that the real emphasis in Hollis v Vabu was placed on the notion of working in the business of another, rather than in the business of the individual’ and that:

Given the almost total control exercised by Swift over couriers such as Mr Callos and his inability to delegate the work to another person, it is submitted that the requirement by him to provide his own motor vehicle is not sufficient to transform what is, essentially, a relationship of employment into one of principal and contractor.[103]

[102][2013] FCAFC 3 (‘Ace’).

[103]Fourth defendant’s closing submissions [5.15].

He submitted that his truck was capable of non-courier uses, including for his own personal transportation and in his landscape-gardening business. Later cases had rejected a reliance on the cost of motor vehicles as a sufficient indicator of a separate business, at least insofar as such a purchase was for personal transport.[104] In relation to superannuation, insurance and tax withholding, he again relied on Buchanan J’s judgement in Ace to establish that:

it is difficult, in my view, to give much independent weight to arrangements about taxation, or even matters such as insurance cover or superannuation. These are reflections of a view by one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract… They may be taken into account but are not conclusive. These matters are less important than the adoption by the parties (where this occurs) of rights and obligations which are fundamentally inconsistent with basic requirements of a contract of employment, such as the ability to delegate the discharge of obligations under a contract to another person, or where there is a lack of control over how work is done.[105]

[104]Ace [2013] FCAFC 3, [83]; (see also Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; 184 FCR 448; Roy Morgan Research Centre Pty Ltd v Commissioner for State Revenue (Vic) (1997) 37 ATR 528).

[105]Ace [2013] FCAFC 3, [37].

Callos pointed to a number of additional factors as indicating the existence of an employer-employee relationship. He had little control over the manner in which he performed his work – he was required to comply with the extensive rules and procedures set out in his contract and safety code of conduct,[106] was required to call head office for instructions if any unforeseen difficulties arose,[107] could not delegate his duties to others, could not do any other work during the times he was driving for the Swift Transport and,[108] despite having negotiated a later start, was still required to call in by at least 11am each day.[109] He was also not providing skilled labour and he could have made an independent career as a free-lancer or generate goodwill, and he was represented to the public as an employee of Swift Transport via the uniform he was made to wear.[110] Swift Transport’s rules and procedures were the same for employee drivers as they were for the nominally independent contracting ‘owner-drivers’,[111] and those ‘owner-drivers’ such as Callos comprised approximately 78 out of its 80 drivers, being for all intents and purposes the face of Swift Transport’s operations to the public.
[106]Exhibit 3D3, 4-25.
[107]T 1020.27-1020.30.
[108]T 931.4-931.11.
[109]T 924.13-924.17.
[110]T 929.8-929.19.
[111]T 930.26-930.27.

While couriers could theoretically reject a job, Callos had never done so,[112] and Mr Allan Lindsay, Swift Transport’s Fleet Controller, stated that drivers needed to have a good reason for doing so.[113] The contract made it clear that a refusal to accept work could lead to termination.[114]
[112]T 1024.11-1024.19.
[113]T 913.15-913.22
[114]Exhibit 3D3, 6.

Swift Transport also had control of finances,[115] and could withhold back pay in certain circumstances.[116] There was no scope for drivers to bargain for higher remuneration.[117] Time off and annual leave had to be requested in advance and approved by Swift Transport.[118]
[115]T 926.17.
[116]Exhibit 3D3, 6.
[117]T 934.8.
[118]T 924.30-924.31.

The contract between Swift Transport and Callos

In determining whether a relationship is one of employer-employee or principal-contractor, the terms of any contracts between the parties are relevant though not determinative consideration.

There were two key documents governing the relationship between Swift Transport and Callos; the ‘Swift Transport Services Safety Agreement for All New Drivers and Codes of Conduct’ (‘the Agreement’),[119] and the ‘Swift Transport Services Safety Manual for Subcontract Owner Drivers’ (‘the Safety Manual’). Both documents were signed by Callos before he commenced his role with Swift Transport.
[119]Exhibit 3D3, 4-6.

The Agreement is split into two sections, being a safety agreement and a code of conduct. The safety agreement lists various expectations and standards expected of prospective drivers. It includes requirements such as not being intoxicated while driving, safely securing loads, not manually handling heavy objects and maintaining vehicles so that they are clean, roadworthy, safe and suitable.

The code of conduct listed many expectations of drivers, including:

Our hours are from 7am to 5:30pm Monday to Friday. You must be available between these times. When you are ready to go in the morning call the depot at 7am – don’t wait for the radio operators to call you…
If you need time off you must tell us in advance – not the day before… A good time for holidays (if you’re planning) is January.
PPE (Personal Protective Equipment) is now compulsory for all drivers. We require all drivers to carry, long pants and shirt, safety boots, safety glasses, ear plugs, helmet, gloves, (flashing lights and reverse beeper trays only).
The contractor must have Commercial Public Liability and also Marine & Cargo Insurance… If the contractor does not have those insurances, Swift Transport will add the contractor to its own Policy and deduct the driver the amount of $12.69 per week plus gst. Swift will add this amount to the admin fees the contractor will be deducted every week to the amount of $27.69 plus gst this will include the lease of two way radios and pda’s.
Any claims for damaged stock, loss stock (sic) or theft will have an excess of $500, payable by the contractor. This can be deducted by the company, from the monies owed to the contractor.
Cessation of Agency: if a contractor ceases employment without 10 full working days (7am-5:30pm) notice, a fee will be owed of $300.00 payable to the company. This can be deducted by the company, from the monies owed to the contractor.
A contractor can be terminated from the company if:
·Refuses to work inside the hours of business.
·Constantly running late (7am start).
·Constantly wanting to finish before 5:30pm.
·Any incidence of aggression or poor attitude towards customers, staff or other drivers.
·Any incidence of knowingly carrying unsafe loads or working in an unsafe vehicle.
·Not wearing Swift Transport Services uniform.
·Not accepting jobs from the dispatch operator.

Swift will deduct the cost of the two way radio installation $120.00 and the cost price for the uniforms – Shirts $25 each, Jumpers $35 and vest $16 each once the driver decided to cease employment with the company. Gst will be added to all these figures

Analysis

In my opinion, Callos was an employee of Swift Transport and it was vicariously liable for any negligence by him while acting as its employee. He was not running his own business, but rather his transport activities were all part of Swift Transport’s business structure for conducting its operations. He was presented to the public as its representative.

Swift Transport was exclusively in the business of transport. It had approximately 80 drivers out on the roads conducting its essential business. Of these drivers, the overwhelming majority were contractors. Therefore, Swift Transport sought to run its essential business almost exclusively through contractor drivers, presumably because doing so suited its business model. Though the majority of these drivers were classified as contractors, the Hollis v Vabu indicia strongly suggest that this was not the case and that they were in fact employees.

The facts of this case have similarities to the facts of Hollis v Vabu.[120] Swift Transport exercised substantial control over the operations of its drivers, including Callos. This included the times at which they had to be available to perform work, their wearing of uniforms, the signage on their trucks, the way in which they were remunerated and the expectation that they would leave when the company was not operating. His contract stated that his refusal to accept work could lead to the termination of his contract. Swift Transport controlled his pay and finances. That tax was not withheld and superannuation not provided is an administrative matter and not decisive of the legal relationship. Nor is the provision of his own vehicle decisive, as emphasised by Buchanan J in Ace, referring to the Full Court of the Federal Court’s decision in Roy Morgan Research v Federal Commissioner of Taxation:[121]

It rejected, as it did so, reliance on the cost of motor vehicles as a sufficient indicator of a separate business, at least insofar as such a purchase was directed to personal transport.[122]

[120](2001) 207 CLR 21.

[121](2010) 184 FCR 448.

[122]Ace at [83].

I do not consider that my conclusion is affected by the fact that Swift Transport recognised some of its staff as employees. This is not decisive, as the Court must consider Callos’ arrangement with Swift Transport in itself, not in comparison with other relationships Swift Transport had with other parties. Nor do I think it decisive that the drivers, including Callos, were able to carry on other businesses.

The Agreement clearly refers to ‘contractors’, suggesting a principal and contractor relationship. However, the Court must look at the substance of the Agreement rather than its form. The significant features of the Agreement are that workers are encouraged to have their own insurance, are given mandatory work hours and are required to wear compulsory uniform and equipment, while Swift Transport is entitled to impose penalties on workers if they provide inadequate notice of termination, deduct money for expenses from workers’ pay and terminate its drivers for a broad range of reasons.

The Safety Manual is a detailed safety guide to be carried by all drivers. It provides detailed policies on each aspect of a driver’s role. The safety requirements are not relevant to deciding the legal relationship as they are consistent with either an employer/employee or principal/contractor relationship. However, despite being the Safety Manual for ‘subcontract owner drivers’, it refers to drivers as ‘employees’. In fact, with the exception of the cover page and the header, the Safety Manual is identical in its terms to the ‘Safety Manual for Company Drivers’. Company drivers for Swift Transport are recognised as employees and have all employee entitlements, in contrast to those drivers categorised as subcontractors.

The essence of Hollis v Vabu is the importance of control over the worker; Callos was subject to strict control by Swift Transport in various aspects of his work that I have discussed. They particularly include the hours he worked, when leave was to be taken, his finances, his attire and equipment and the type and quantity of work. Swift Transport could also impose penalties, deduct pay for expenses which were beyond the discretion of drivers and freely terminate its workers for any non-compliance with its strict requirements.

When considering the substance of the Agreement, rather than its form, it is clear that Callos was not agreeing to conduct his own business as a contractor of Swift Transport, but was rather agreeing to work for Swift Transport’s business and subject himself to its control with respect to the mode of his work.

I do not consider it to be decisive that Callos in effect said that he regarded himself to be a contractor or that he had an Australian Business Number that he also used in connection with his landscaping business. Mr Lindsay said that all the subcontractors had to have an ABN.[123] The parties’ characterisation of their legal relationship is only one of many factors to consider and the balance of factors supports the conclusion that Callos was an employee of Swift Transport.
[123]T 912.

Breach of duty

Quilligan alleged a number of breaches by each defendant. As each of these alleged breaches are different for each defendant, they will again be dealt with individually.

By Copyshift
The parties’ submissions

Quilligan alleged several breaches by Copyshift in his amended statement of claim. These were:

a) Failing to have a safe system of work.
b) Failing to provide proper plant and equipment.
c) Failing to ensure that the Second Defendant’s servant or agent, was qualified to operate the forklift.
d)Failing to comply with the provisions of the Occupational Health and Safety Act 2004 (Vic) and/or the Regulations thereunder.

He expanded on a number of these pleaded breaches in closing submissions, particularly that:

(a) Copyshift’s failure to institute a safe system work around unloading deliveries. Quilligan pointed to the lack of training of staff in using the CLM, the lack of a formal policy governing who could use it, the lack of an instruction manual, and the lack of any system in place to ensure that deliveries requiring the CLM’s use were aligned with the presence of Copyshift staff trained to operate it. Specifically, he alleged that there was no system of work to ensure that appropriate arrangements were in place for the orderly and safe receipt of all deliveries, that non-qualified drivers did not operate the CLM; and that employees not operating the CLM – including Quilligan – were clear of it while it was in use.

(b) Toogood’s lack of warning to Quilligan on the phone. Quilligan alleged that, when he called Toogood to ask him how to turn the CLM on, that Toogood should have made inquiries about the person using it, refused to allow an external courier driver to operate it, or at least warned Quilligan that it moved fairly easily and that he should accordingly keep well clear of it.

(c) The condition of the CLM. Quilligan alleged that the machinery used by Callos to unload the pallet was more than 30 years old, that the emergency stop button is ‘not that sensitive’, and that the throttle and the tiller are ‘not that stiff’, making it quite easy work for someone to accidently pull the tiller back and twist the throttle at the same time.

Copyshift submitted that the incident was not one which could be characterised as falling into the ‘system of work’ category. It relied on the decision of Andar, in which the High Court cited with approval Lord Aitchison’s description in English v Wilsons and Clyde Coal Co Ltd,[124] of a ‘system of work’ in the following terms:

[B]roadly stated, the distinction is between the general and the particular, between the practice and method adopted in carrying on the master's business of which the master is presumed to be aware and the insufficiency of which he can guard against, and isolated or day to day acts of the servant of which the master is not presumed to be aware and which he cannot guard against; in short, it is the distinction between what is permanent or continuous on the one hand and what is merely casual and emerges in the day's work on the other hand.[125]

[124]1936 SC 883.

[125]Ibid 904, cited in Andar (2004) 106 CLR 112, 447-448 [54] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).

Copyshift contrasted Andar, in which the High Court found that regular loading and unloading of linen trolleys from a delivery truck was a ‘system of work’, with the present circumstances, in which Copyshift rarely received deliveries of goods on pallets, and where such deliveries would usually be smaller and capable of being unloaded by hand. In that context, the unloading of a pallet was an isolated and unpredictable event, about which Copyshift was not obliged to create a safe system of work.

Treating the unloading of the pallet as an isolated event, Copyshift submitted that there was no breach as the risk of injury to Quilligan was not reasonably foreseeable, because: Quilligan was legally blind; his work was confined to administrative duties and customer contact; he had never used the CLM or been involved in any warehouse duties; he had no knowledge of how to use the CLM; it was company policy that third parties were not to use the CLM; warehouse duties were as a rule conducted by Mr Toogood; Quilligan had authority to send the courier away; and no notice had been given to Copyshift of either the time or manner of the delivery.

Copyshift also submitted that there was no evidence that the CLM was defective or malfunctioning in any way that contributed to the incident, so any breach in that regard would not have caused injury to Quilligan.

Despite her absence, Vandestadt’s evidence was important to Quilligan’s case. She expressed the opinion that the incident would obviously have caused trauma to his foot,[210] and that such trauma would have caused the blister that was detected on 5 August 2016.[211] She addressed the fact that there was no reference to the 5 August 2016 blister in the clinical notes of 29 August 2016; but stated that the ingrown toenail was connected to the blister. She explained that the blister and ingrown toenail were ‘part of the same issue’, as the ‘part of the nail that was causing the pressure wasn’t finished being removed or was still there and aggravating, then… it’s becoming hypergrannulation tissue, so it’s still part of the same thing…’[212]
[210]T 836.
[211]T 837-838.
[212]T 846.

Another relevant feature of Vandestadt’s evidence, that supported Quilligan’s case, was her suggestion of the ‘altered gait’ theory. She gave evidence that the trauma to Quilligan’s foot could have created a minor change in the way he was walking and altered his gait, which could potentially have triggered low grade inflammation within the foot, which over time would have manifested on the surface of the skin.[213] An altered gait would be of particular consequence for Quilligan, whose custom made orthotics would not have properly accommodated the change. She gave evidence that this was the likely cause of the blister on the plantar aspect of Quilligan’s foot that led to his hospital admission, at her behest, in March 2017.[214] Quilligan relied on the altered gait theory as providing a causal avenue between the incident and the blister as an alternative to the micro-abrasion to blister pathway to infection.
[213]T 839
[214]T 840.

The defendants criticised Vandestadt’s evidence and argued that it ought not be accepted. First, they contended that Vandestadt had beneficially reconstructed the events for the benefit of his WorkCover claim. Vandestadt was not made aware of the incident until post-amputation when Quilligan contacted her in relation to his WorkCover claim.[215] This lack of knowledge was despite the fact that, in February and March of 2017, Vandestadt and Quilligan were ‘brainstorming’ about the cause of the plantar aspect blister.[216] The defendants put that the reliability of her evidence was diminished by her retrospective endeavour to establish a link between the incident and the amputation.
[215]T 833.
[216]T 834.

The defendants next submitted that Ms Vandestadt was on maternity leave from before the incident up until February 2017. The causal theory submitted by Quilligan depended largely on the Berwick Podiatry notes from August 2016 – most notably those that record the 5 August blister and 29 August ingrown toenail – that were recorded while Vandestadt was not the treating podiatrist. Vandestadt’s evidence was that the blister and ingrown toenail were caused by the incident, however she did not actually see Quilligan’s clinical presentation at the time. Rather, she relied entirely upon the brief notes prepared by her colleague Ms McManus to support her claim that the trauma of the incident caused the blister and then the ingrown toenail. The defendants therefore argued that her evidence in relation to Quilligan’s state in August 2016 should not be accepted, as it was speculative and based on little evidence, particularly in light of the availability of Ms McManus to give evidence.

The defendants’ final submission concerning Vandestadt’s evidence was that her altered gait theory was pure speculation. Vandestadt rejected this claim and, in response to a claim that her theory was a ‘pretty big guess’, said ‘it’s mechanics’.[217] However, she conceded that there was no clinical or objective evidence to support her assertion that there was a change in Quilligan’s walking mechanics.[218] The defendants therefore argued that that lack of evidence, in tandem with Vandestadt’s absence during the pertinent clinical period, rendered her altered gait theory weightless.
[217]T 839.
[218]T 842.

Jones v Dunkel

The defendants argued that Quilligan’s failure to call pertinent medical witnesses could lead to Jones v Dunkel[219]inferences being drawn adverse to his claim. The defendants alleged that the following people ought to have been called by Quilligan: Dr Saunders, the doctor who made the diagnosis of osteomyelitis at Monash Health and recommended the amputation of Quilligan’s lower right leg; Dr Soldatos, Quilligan’s treating endocrinologist from 2011 until present; and Ms McManus, Quilligan’s treating podiatrist in the period from the incident until January 2017.

Dr Saunders

[219](1959) 101 CLR 298.

The defendants argued that Dr Saunders was the medical practitioner most qualified and in the best clinical position to give an account of Quilligan’s presentation on 10 March, and to give an opinion as to whether the osteomyelitis was caused by any trauma to the foot from the incident. He would also have been able to give evidence about the history he obtained from Quilligan leading up to his admission. The defendants submitted that this was particularly pertinent as Quilligan did not report the incident as a cause of his foot infection to anyone at Monash Health or Jessie McPherson.[220] On this basis, the defendants submitted that an inference should be drawn that the evidence of Saunders would not have aided Quilligan’s causal claim.
[220]T 286.

Quilligan submitted that Dr Saunders’ evidence would have added little to the enquiry as to the origin of the infection as, when Quilligan was admitted to hospital, osteomyelitis had already taken hold. Therefore Saunders would have been in no better position than Blombery to identify the origin. Quilligan submitted that no adverse inference can be drawn from the his failure to call him.

Dr Soldatos

Dr Soldatos has been Quilligan’s treating endocrinologist. The defendants argued that she was the most qualified medical practitioner available to give evidence on the significance of Quilligan’s Charcot’s Foot condition. She would have been able to give evidence as to any history obtained from Quilligan about the incident as she saw him on three occasions between the incident and amputation. Additionally, Lording gave evidence that endocrinologists are involved in the foot care of diabetics,[221] which was confirmed by Soldatos’s notes.[222] That she was not called, in the defendants’ submissions, gave rise to an inference that her evidence would have been unfavourable to Quilligan’s case.
[221]T 653.
[222]KDF 173-174; 178.

Quilligan argued that no adverse inference ought to be drawn, as her evidence would not have been material. There was irrefutable evidence that Quilligan’s Charcot’s Foot condition had stabilised from February 2016, and that the injury was a complication of diabetes rather than diabetes itself. Dr Soldatos could not therefore have added anything of significance.

Ms McManus

The defendants also argued that Quilligan should have called McManus, who was Quilligan’s treating podiatrist during Vandestadt’s maternity leave between April 2016 and February 2017. From before the incident up until the end of January 2017, McManus treated Quilligan. Her evidence on Quilligan’s clinical presentation in August 2016 would have been of far greater assistance than Vandestadt’s evidence, who formed an opinion on the basis only of the brief clinical notes. By contrast, McManus, who authored those clinical notes, would have had far greater insight into Quilligan’s condition between the incident and development of his osteomyelitis. Particularly, she would have been better placed to give evidence on the question of whether the blister and/or the ingrown toenail were causally linked to the incident. The defendants argued that there was no compelling reason for only calling one podiatrist, but if only one were to be called, McManus would have been the more relevant witness. The failure of Quilligan to call her, and instead call Vandestadt, supported an inference that her evidence would not have aided Quilligan’s case. Ms McManus now works at another health centre in Melbourne.

Quilligan argued that the podiatry notes speak for themselves in clear terms and that Vandestadt was the main treating podiatrist for Quilligan before the incident and from February 2017. Vandestadt was familiar with both Quilligan’s rare health circumstances and the note taking and clinical files of her practice. It was not necessary to call every practitioner from Berwick Podiatry, particularly as it had central record taking procedures and she gave extensive evidence. Quilligan pointed out that the defendants did not call expert podiatry evidence. Therefore, he argued that no adverse inference should be drawn from his failure to call McManus.

The parties’ submissions as to whether the incident caused the amputation
Mr Quilligan’s submissions

Quilligan relied principally on Blombery’s causal thesis, as supplemented by the evidence of Rillstone and Vandestadt. He submitted that his foot was subjected to trauma as a result of the incident, that resulted in the development of a blister under his right first toenail, arising from either a micro-abrasion or an altered gait. This blister become infected, and the right first toenail became ingrown during August 2016. The infection remained in Quilligan’s foot and developed into osteomyelitis by March 2017, necessitating the amputation of his right lower leg on 17 March 2017. There are two steps in this causal thesis: firstly, that the incident caused the blister detected on 5 August 2016 and; secondly, that this blister led to the osteomyelitis.

Quilligan submitted that the Court should be satisfied that it was more likely than not that he suffered an injury as a result of the trauma. The injury caused by the trauma could have been any or a combination of the following: redness/swelling; a direct micro-abrasion to the right first toe, or a micro-abrasion to the first right toe caused by the toe rubbing against his orthopaedic shoe due to an altered gait caused by the incident.

While Quilligan conceded that there were no medical reports of any visible injury for approximately six weeks after the incident, he argued that there was likely no clearly visible injury and that any micro-abrasion would not have been noticed by Rillstone or McManus due to its microscopic nature. Quilligan would not have detected any such micro-abrasion due to his limited vision. The evidence regarding Quilligan ‘hobbling’, as well as his own evidence of increasing limping and pain in his right foot after the incident, suggested an altered gait.

The first possible record of any injury arising from the incident was of the 5 August right first toenail blister recorded in McManus’s podiatry notes. Blombery, Rillstone and Vandestadt gave evidence that this was likely caused by the incident. Blombery claimed that it was caused by a micro-abrasion which was the consequence of the incident, and Vandestadt claimed that it could also have been caused by an altered gait. The second possible record of an injury was the right first ingrown toenail noted by McManus on 29 August and Quilligan argued that this too was a consequence of the incident and was a development from the blister. Vandestadt gave evidence that the ingrown toenail and 5 August blister were ‘part of the same issue’.[223] The delay between the incident and 5 August was explained either by the slow healing of diabetics or, alternatively, the altered gait theory, where the blister followed from extended periods his foot of rubbing against his shoe.
[223]T 846.

Quilligan also addressed the defendants’ submissions about an alternative cause of the blister and/or ingrown toenail in their submissions, being that he had injured himself in the shower. In re-examination on the topic of the 5 August podiatry appointment with McManus, Quilligan recalled that the appointment was in regard to damage to his right first toenail caused from ‘kicking it in the shower or doing something in the shower or getting in or out of a shower’.[224] The defendants contended that this was the true cause of the 5 August blister and it completely severed Quilligan’s causation thesis. Quilligan disputed that there had been a shower incident in or around August 2016 and that his evidence suggesting that there had been was a mistake arising from being in the witness box for three days and being asked to recall details of many medical issues and appointments. There were no medical records of any shower injuries around the August 2016 period. The most recent shower-related injury had occurred between September 2015 and February 2016,[225] which was possibly the origin of Quilligan’s mistake.
[224]T 400.
[225]KDF 116.

Quilligan also made submissions seeking to establish a connection between the August right first toe injuries and his early 2017 osteomyelitis. He emphasised that diabetics were inherently susceptible to infections, as Blombery’s and Lording’s evidence confirmed, due to their reduced blood supply to extremities and neuropathy.[226] Lording also accepted that osteomyelitis is a common complication for a foot lesion in a diabetic,[227] and that burst blisters can become infected.[228]
[226]T 425, 708.
[227]T 656.
[228]T 710.

Quilligan also relied upon Blombery’s opinion that the infection entered his toe through the blister/ingrown toenail, after which it gradually travelled and developed through his foot until it ultimately manifested in osteomyelitis.

In support of this opinion, Quilligan relied upon the following chain of events. On 5 August, the blister was discovered by McManus and treated with flaminal forte, used to both treat and prevent infection. On 29 August, Quilligan was against treated by McManus, who noted an ingrown toenail and ‘odour’. Vandestadt suggested that such odour was indicative of a small infection.[229] The toenail was again dressed with flaminal forte. On 1 September, Rillstone prescribed Quilligan penicillin for ‘infection’. Though Rillstone did not recall the reason for prescription, nor did his notes disclose anything more than ‘infection’, Quilligan argued that the prescription was highly likely to be for an infection in the first right ingrown toenail, as the medical notes at the time did not refer to any other condition suggesting infection. On 9 September, Quilligan against attended Berwick Podiatry where McManus noted that the right first ingrown toenail was displaying hypergrannulation tissue and was still ‘mildly red’.[230] Later in September and October, Quilligan again attended Berwick Podiatry.
[229]T 797.
[230]KDF 162.

Quilligan argued that in light of the expert evidence from medical witnesses about the susceptibility of diabetics to infection, and the chain of medical events leading from the incident to the August infection to the osteomyelitis, the compelling inference was that the incident caused the osteomyelitis.

Quilligan responded to the defendants’ argument that there was no record of injury in the six weeks post incident, nor any medical or contemporaneous record referring to the incident. He argued that, as a blind and neuropathic diabetic, he was likely to overlook any marks on his foot despite the soreness. Around the time of the incident he was dealing with myriad health problems relating to diabetes. His sore foot was therefore unremarkable, particularly when considered in light of his stoic resilience. As the injury immediately post-incident was most likely to have been a mere micro-abrasion, it was understandable that the treating podiatrist on 4 July 2016 failed to notice it, particularly as it was under the toenail. The absence of any reference to the incident in Dr Rillstone’s notes was attributable both to the relatively unremarkable nature of the incident at the time, and to Dr Rillstone’s concise note taking.

As previously mentioned, Quilligan sought to explain, for similar reasons, why there was an absence of medical and contemporaneous recording of the incident. Quilligan submitted that the significance of the incident simply was not appreciated until he was diagnosed with osteomyelitis in March 2017. Until then, there was no cause to report the incident to his employer, or to his medical professionals.

The defendants’ submissions

The defendants asserted that the incident, if it occurred as alleged, did not cause the osteomyelitis and thus the amputation. I will consider their submissions collectively.

They first submitted that, if it is found that the incident did occur, then it was minor and did not cause Quilligan any damage of relevance. Quilligan did not seek any additional medical appointments post-incident other than those already arranged, even though he could have obtained an earlier appointment if he had needed one. Once he did see medical practitioners and podiatrists, he did not tell any of them that a workplace incident had occurred involving damage to his highly vulnerable feet. According to the medical records, he also failed to disclose any pain in his right foot or associated limping until February 2017, which fact contradicted his own evidence of daily increasing pain. Finally, no lesion or wound was observed by the treating podiatrist or GP, despite the former conducting a thorough examination of his feet at an appointment shortly after the incident, on 4 July 2016, using expert equipment including blue lighting.

The defendants submitted that, even if the Court found that the incident did occur and caused some trauma to Quilligan’s toe, the 5 August blister was entirely unrelated to it. As the 5 August blister is a critical fact in Quilligan’s causation case, he must establish its connection to the incident in order to succeed. But Quilligan gave uncontested evidence in re-examination that he had damaged his first right lateral toenail ‘kicking it in the shower or doing something in the shower or getting in or out of a shower’.[231] In evidence, he stated that this shower incident was the reason he had an appointment with his podiatrist on 5 August.[232] The defendants argued that Blombery’s opinion that the shower incident merely exacerbated a pre-existing lesion to the toe should be disregarded, as it was entirely speculative.
[231]T 400.13-400.18.
[232]T 400.12-400.18

The defendants argued that, irrespective of the shower incident, there was insufficient evidence to link the incident to the blister. The podiatrist’s thorough check of Quilligan’s feet on 4 July 2016 detected no trauma to the first right toe, and neither Quilligan nor his wife noticed any right toe trauma after the incident. Additionally, the defendants relied upon Lording’s evidence that, if a blister occurred on 24 June, it would certainly have burst and would not have presented as a ‘proper’ blister on 5 August. He expressed the opinion that blisters are usually caused by a ‘regular abrasion’ such as from shoes rubbing over a long period of time. He thought it was unlikely that the 5 August blister could have been caused by the incident.

The defendants also challenged Vandestadt’s opinions that supported Quilligan’s case. The defendants argued that there was no evidence to support the suggested connection between the ingrown toenail and the 5 August blister. The ingrown toenail was first documented in the Berwick Podiatry clinical notes from 29 August 2016. Vandestadt considered that the blister morphed into this ingrown toenail. But the defendants pointed to Blombery’s evidence that ingrown toenails are not uncommon in the general population, and quite common in Charcot’s Foot sufferers who wear orthotics; to the clinical records which suggested that the blister was short lived, as there was only one notation on 5 August 2016; and to Lording’s evidence that blisters would not normally be part of ingrown toenails as they were ‘separate lesions’.

The defendants argued that there was no medical evidence to support the altered gait theory and that McManus, who would have been better placed to assess whether Quilligan’s gait had in fact been altered, was not called to give evidence.

The defendants next submitted that there was no basis for connecting the 5 August blister to osteomyelitis. Quilligan claimed that the 5 August blister was illustrative of an abrasion through which an infection entered his foot and spread undetected until it caused osteomyelitis. In doing so he relied upon the podiatrist’s notes suggesting ‘odour’ on 29 August, her use of flaminal forte and betadine from August onward and Dr Rillstone’s antibiotic prescription on 1 September. The defendants disputed the contention that these facts were illustrative of infection attributable to the 5 August blister. With regard to the odour, there was no evidence connecting that observation on 29 August to the 5 August blister. Furthermore, a degree of odour is not in itself conclusive evidence of an infection. As stated by Lording, feet smell, often for reasons other than infection. In regard to the use of flaminal forte and betadine, Vandestadt’s evidence was that these were used as topical wounds dressings to prevent rather than treat infection. Their use cannot be the foundation of a finding that Quilligan’s first right toe was infected. With regard to Rillstone’s Amoxil prescription, neither Rillstone himself nor Quilligan could recall for what reason the antibiotic was prescribed. Although the GP’s notes stated that the prescription was for ‘infection’, this could have been for any number of reasons given Quilligan’s health conditions. Further, Vandestadt stated that a podiatrist’s note would have recorded if Quilligan required any prescription in relation to his feet, and there was no such note.

The defendants reiterated their submission that the ingrown toenail was unrelated to the blister and thus the incident. If the Court found that there was an infection of Quilligan’s first right toe in or around August 2016, then it was attributable to his ongoing problems with ingrown toenails which pierced his skin.

The defendants argued that even if there had been an infection in August 2016 caused by the 5 August blister, Lording gave evidence that it could not have laid dormant for nine months. This would be entirely inconsistent with the behaviour of a diabetic foot. Vandestadt’s evidence was that, when she recommenced seeing Quilligan in early 2017, she did not observe any issue with the right toe and that his hospital admission was unrelated it. Rather, Quilligan’s admission to hospital was connected with the presence of a wound on the plantar aspect of his right foot. Lording’s evidence, and the defendants’ submissions, were that this wound caused the osteomyelitis.

The defendants argued that the Court could better reject Quilligan’s contention in light of the alternative and more probable explanation for his injury – the plantar wound, which presented as a blister in early 2017. Vandestadt’s notes from 10 February until Quilligan’s hospital admission in March chronicle a deterioration in his condition suggestive of acute osteomyelitis. The temporal proximity of the open wound noticed on the plantar aspect with Quilligan’s rapid deterioration was said to be far more characteristic of a rapid-onset infection than one that had lain dormant for some months.

Vandestadt’s clinical notes of 10 February 2017 referred to two potential causes of the plantar wound, the first being Quilligan obtaining new pairs of orthopaedic shoes in December 2016, and the second being the prior discovery by her colleague McManus of a 5 cent coin in Quilligan’s right shoe, which had been there for approximately 5-6 weeks. Following this, Quilligan’s condition gradually deteriorated until, on 10 March, Quilligan attended Berwick Podiatry in a state of extreme pain and was sent by Vandestadt to Monash Health. The following day an MRI was undertaken which, as mentioned, showed that the wound provided a ‘direct pathway’ from the plantar lesion to the bones and joints to which the infection spread.

The defendants argued, based in part on Lording’s evidence, that the plantar wound caused the infection and they refuted any suggestion that the plantar wound could be connected to the 5 August blister. Blombery conceded that Quilligan’s deterioration in early 2017 was consistent with acute osteomyelitis, of which the plantar wound was ‘more likely’ to be the cause. Vandestadt also conceded that the plantar wound was just as likely to have caused the osteomyelitis as the incident. She was also unable to say whether the trauma caused by the incident was more likely to have caused plantar wound than Quilligan’s new shoes.

Analysis

The question is whether the incident caused the osteomyelitis that led to the amputation of Quilligan’s lower right leg. I find that Quilligan has not established that the incident caused the osteomyelitis.

Quilligan submitted that the osteomyelitis was caused by an infection which in turn came from a blister in the first right toenail, caused by a micro-abrasion following the incident. Blombery supported this conclusion. But his evidence was that the osteomyelitis detected in March 2017 was equally consistent with an acute osteomyelitis, characterised by a rapid onset of symptoms.[233]
[233]T 454-455.

Blombery’s opinion was reliant on the history obtained from Quilligan about his attendance at his GP and podiatrist in the days after the incident, but that history was inconsistent with their records. His opinion was reliant on the existence of a micro-abrasion which was missed by the podiatrist and GP in their thorough inspection of Quilligan’s foot.

I therefore find that Blombery’s evidence does not prove Quilligan’s causal theory as it was premised on an incorrect clinical history of Quilligan after the incident, and was punctuated with the concession that the osteomyelitis could have been acute and thus caused by something far later than the 5 August blister. I consider his evidence to be less compelling than Lording’s evidence, particularly in light of the significant temporal gap from the 5 August blister and the onset of osteomyelitis.

I do however reject the criticism that Blombery did not fulfil his obligations as an independent expert witness.

Lording’s opinion was that there was no medical evidence to support the claim that the incident caused any open lesion and that it was impossible for an infection to have been dormant in Quilligan’s foot tissue for as long as Blombery suggested. He considered that there was no connection between the incident and the blister or the blister and the infection. He provided a more persuasive explanation for the osteomyelitis than Blombery’s, namely that the plantar wound to Quilligan’s mid-right foot was the cause of it. I accept Lording’s evidence that the plantar wound was more likely than not to have caused the osteomyelitis, on the basis that it provided a ‘direct pathway’ from the skin to the bone through which infection could enter, and its close temporal proximity to the acute onset of Quilligan’s osteomyelitis.

I accept Lording’s evidence. I consider that Rillstone was acting on an incorrect understanding of the date and details of the incident. That he assumed that the incident occurred in December 2016 rather than June 2016 is critical. Therefore, in the face of Lording’s contrasting and expert opinion, I do not accept Rillstone’s.

The medical evidence on which Quilligan relied appeared to assume that there had been some abrasion or crushing of part of his right foot. But the evidence does not support such findings. Indeed, he made no complaint to his doctors about his right foot after the incident and no trauma was identified or recorded by those who carefully examined his feet.

The treating podiatrist, McManus, was not called to give evidence. Vandestadt could not give evidence about what she had not observed so could not give evidence, about what McManus observed. However, I do reject the submissions that Vandestadt’s evidence was intended to assist Quilligan.

I do not consider that Vandestadt’s altered gait theory provided evidence of a causal connection between the incident and the osteomyelitis. I accept the defendants’ submissions that her theory was speculative and not based on any evidence or clinical assessment. No evidence was tendered beyond her opinion to establish that Quilligan’s gait was in fact altered and that that gait did in fact cause a blister.

Quilligan justified the lack of reporting of injury to his first right toe because of his limited eye sight and his failure to notice any micro-abrasion. While this may have been the case initially, it is significant that, according to clinical records, Quilligan did not once raise the incident with any of his treating medical practitioners, even when it became clear in early 2017 that something had caused injury his right foot.

I consider it appropriate that in accordance with the principle in Jones v Dunkel[234], that I should draw an adverse inference that McManus’s evidence and that of Saunders, the surgeon, would not have assisted Quilligan. No explanation was offered to explain the failure to call them. McManus would have been best able to give evidence on the state of Quilligan’s first right toe and right foot and the presence of any altered gait from immediately after the incident. Saunder’s evidence was likely to have assisted on the question of the development of the osteomyelitis. The August 5 blister was critical to the plaintiff’s causal theory and the very person who detected and treated that blister was not called.
[234](1959) 101 CLR 298.

Quilligan has not established that any of the first, third or fourth defendants’ breaches of their duties of care were either a cause of, or a necessary precondition to his osteomyelitis. When the plantar wound to his right foot is considered, I cannot find on the balance of probabilities, that the incident caused the osteomyelitis. The evidence rather suggests that the plantar wound caused it. The breaches of duty by the first, third and fourth defendants were not causative of Quilligan’s osteomyelitis.

There was no evidence of infection in Quilligan’s right foot in the weeks and months after the incident. There is no evidence that he suffered a micro-abrasion to his right foot as a result of the incident. I have taken into account the fact that Quilligan may have not seen any micro-abrasion, but his feet were examined by Rillstone and McManus after the incident and they did not notice any micro-abrasion.

I find that there is no evidence that the trauma of the incident caused the blister and the ingrown toenail. Lording’s evidence that a fully formed blister caused by an incident in June would not survive to August particularly highlights the gap in Quilligan’s causal chain.

In the absence of any evidence of any abrasion or observable impact to Quilligan’s foot as a result of the incident, I find that there was no connection between the blister found on 5 August 2016 and the subsequent osteomyelitis that led to the amputation of his lower right leg. The plantar wound was not a secondary infection caused by an earlier one.

I consider that Quilligan after he was diagnosed with osteomyelitis in March 2017 has retrospectively magnified the significance of the incident.

However, I do not consider that the shower incident has been established as a cause of Quilligan’s osteomyelitis. His statement concerning that incident was made after days of cross-examination about his exceedingly complex medical history. It is likely that Quilligan was simply mistaken about the date of such an incident.

Conclusion on Serious Injury Application

As mentioned previously, in order to obtain a serious injury certificate, Quilligan was required to prove that he suffered a serious injury, and that the injury was ‘work-related.

In view of my findings on causation, namely that the workplace incident was not the mechanism for infection that led to the amputation of Quilligan’s lower right leg, it necessarily follows that that injury cannot be categorised as ‘work-related’. I also consider that any ‘work-related’ injury caused by the incident was not serious, but rather involved a minor impact to Quilligan’s right first toe. His application for a Serious Injury Certificate is therefore refused. However, this refusal is of little consequence as, in view of my findings in respect of his negligence claim, Quilligan is not or would not have been entitled to damages in any event.

Remaining issues

Because of my conclusion that Mr Quilligan’s claims cannot succeed, it is not appropriate that I express conclusions about the issues that otherwise would have arisen of damages, contributory negligence and contribution.

Conclusion

The proceeding, including paragraph one of the plaintiff’s summons of 2 July 2018, must be dismissed.

[2018] VSC 784

14 December 2018