Allen and Transpacific Industries Pty Ltd (Compensation) [2015] AATA 808 (16 October 2015)
Division
GENERAL DIVISION
File Number
2014/4428
Re
Brian Allen
APPLICANT
And
Transpacific Industries Pty Ltd
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 16 October 2015 Place Melbourne The Tribunal affirms the decision under review.
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Miss E A Shanahan, Member
COMPENSATION – claim for aggravation of pre-existing cervical spondylosis due to trauma to the cervical spine – claimed faulty vehicle – expert evidence as to safety of the vehicle – conflicting non-expert mechanical evidence – credit of applicant – applicant maintains fault lays with the truck rather than his perhaps unfamiliarity with seat controls – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 sections 5A, 5B and 14
Cases
Re Liu and Comcare [2004] AATA 617
REASONS FOR DECISION
Miss E A Shanahan, Member
16 October 2015
Mr Allen lodged an application for worker’s compensation on 6 June 2014, the nature of the claim being for damage to C4/5, C5/6 causing pain and numbness in the left arm and pain in the neck. The injury was attributed to a malfunctioning seat in the garbage collection vehicle he was driving on 3 June 2014. The vehicle in question had been a replacement vehicle as his usual very modern rear end loader was being serviced.
On 17 July 2014 a senior case manager of the respondent, Transpacific Industries Pty Ltd (Transpacific) made a determination declining liability for workers’ compensation. Mr Allen sought review of this decision by a reconsideration delegate. Mr Mark Simpson, the reconsideration delegate, on behalf of Transpacific affirmed the determination on 14 August 2014. While he considered all the evidence in detail Mr Simpson’s decision rested primarily on the evidence of independent experts and the mechanical assessment by staff of Transpacific who had found no defects or faulty performance of the seat of the truck Mr Allen drove on 3 June 2014.
Mr Allen made an application to the Administrative Appeals Tribunal on 25 August 2014 for a review of the decision of the reconsideration delegate.
Mr Mark Carey of counsel instructed by Zaparas Lawyers appeared for the applicant and Mr Steven Whybrow of counsel instructed by HBA Legal appeared for Transpacific. The Tribunal was provided with the documentation filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) which were tendered as Exhibit R1. Both parties tendered considerable volumes of documents a list of which is appended to this decision. Evidence before the Tribunal was given by the applicant Mr Brian Allen, Mr A Aliashkevich, neurosurgeon, Dr D Rillstone, general practitioner, Mr R McDonald, consulting engineer, Mr G Khurana, neurosurgeon, Dr S Richardson, mechanical engineer, Mr B Layton, the workshop manager of Transpacific, Mr G Barns, the operations supervisor for Transpacific at their Clayton depot and Mr C Baunton, diesel mechanic employed by Transpacific at their Clayton depot.
BACKGROUND TO THE APPLICATION
Mr Allen claims that on 3 June 2014 he was required to drive a truck…
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- AGLC
- Re Liu and Comcare [2015] AATA 808
- Case
- [2004] AATA 617
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the court were whether Mr Allen's injuries were caused by the incident on 3 June 2014 and whether Transpacific was liable for compensation. Additionally, the court needed to consider whether Mr Allen's pre-existing condition contributed to the injuries he claimed to have sustained.
The court carefully examined the evidence presented by both parties, including Mr Allen's testimony, medical reports, and statements from Transpacific's personnel. The court found that Mr Allen's familiarity with the truck was questionable, as he had only had limited experience with the specific model involved. Moreover, the court noted that the truck had only been at the depot for a short period before the incident. The court also considered the medical evidence, which indicated that Mr Allen had a pre-existing condition that could have contributed to his symptoms. The court concluded that the evidence did not sufficiently support that the incident caused Mr Allen's claimed injuries, or that Transpacific was liable for compensation.
In light of the findings, the court dismissed Mr Allen's application for compensation. The court's decision was based on the insufficient evidence linking the incident to Mr Allen's claimed injuries and the presence of a pre-existing condition that could have contributed to his symptoms.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I asked Mr Layton if it was possible to have a partially open valve-like effect in the air-compression tubing to the seat, to which he responded that the pressure would take a longer time to reach its ideal level and again in response to my question stated they had no means of checking as to whether there was an obstruction in the air-compressor system. According to Mr Layton, the only other report of problems with the Acco truck had occurred in 2015 after its transfer to Morwell when it was reported that the seat in the Acco truck bounced excessively. This was found to be due to the so called shocker or dampener button being turned off and once turned on the problem was solved. This report had occurred in the early hours of the morning by virtue of phone connection between the driver and the workshop and had been corrected by advice given by telephone. Mr Layton advised that all drivers had his telephone number and while he started work at 6:00 am and finished at 6:00pm, he was on call 24 hours a day and readily contactable by all of Transpacific’s drivers.Mr Gary Barns, Operations Supervisor, Clayton Depot Mr Barns has been the operations supervisor dealing with Mr Allen for the past two years and has been employed by Transpacific at their Clayton depot for eight years. He explained that all of Transpacific’s drivers check their truck when they arrive for duty and if anything is amiss the workshop is contacted and the truck inspected. At the end of the work day the driver performs a further check of the vehicle and completes a vehicle report. If there is any defect detected he takes the report to the workshop. On 3 June 2014, Mr Barns said he had been telephoned by Mr Allen who reported that he had hit his head on the roof of the Acco truck on several occasions. Mr Barns’ evidence was that he told Mr Allen to ring the workshop and they would come out to him and inspect the truck or he could bring it into the workshop. Mr Barns denied that he had said suck it up princess in response to Mr Allen, as attested by Mr Allen in his evidence. On his arrival at the Clayton depot Mr Allen walked into Mr Barns’ office and asked for the injury book. Mr Barns notified the workshop that the vehicle may have a defect and also telephoned the branch manager. He did not inspect the vehicle himself as he is not a qualified mechanic. Mr Barns said that Mr Allen’s work performance had always been satisfactory or good but that he appeared to have mood swings. Mr Barns had noted that he was easily upset, referred to Mr Allen as varying from day to day and described by him as good Brian and bad Brian. Mr Allen would ring Mr Barns during his rounds and make comments such as I’ve had enough of this and I’m just over it and then hang up. He would not explain what he meant by these statements. In accordance with company policy Mr Barns had driven Mr Allen to the Interhealth Medical Clinic on 4 June 2014 in order to see the facility preferred doctor. Mr Barns had sat in the waiting room while Mr Allen was examined and was then called into the doctor’s office to be told of any work restrictions that would be in place and to provide information about light duties that might be available.