Injury caused by lack of training – $320K damages
The employer of a battery delivery driver, whose back was injured when he exited from his truck, has been ordered to pay damages of more than $320,000.
The Supreme Court of Queensland found the injury was caused by the employer’s failure to provide training and failure to ensure the driver followed safe work procedures.
Working with a vulnerable back
38-year-old man in search of employment sought medical attention for lower back pain in 2011 and was told he had a bulging disc at the L4/5 level. Conventional treatment did not help, but exercise using what he referred to as an ‘inversion table’ provided relief. So in November 2011, when he was interviewed for a job as a driver to deliver batteries for motor vehicles and marine vessels, he mentioned his recent back problem, which he believed had been resolved. He was hired and took up the job early in 2012.
From January 2012 to August 2013, the driver suffered intermittent back, buttock and leg pain. He reported it to his manager on more than one occasion and relied on use of his inversion table for relief. His work was often heavy. He was required to handle on average more than 1200 batteries a day. Some of them weighed well over 20 kg, a few up to about 50 kg, and could be loaded by forklift, but there was not always a forklift or even a trolley available for the unloading
Jumping from truck cabin was unsafe
On 21 August 2013, the driver damaged the intervertebral disc at the L4/5 level when he exited from the cabin of his truck. Facing outwards, he raised himself out of the seat and dropped about 0.5 m to the ground. He suffered extreme left-sided pain and was surgically treated with a discectomy. The employer’s workers compensation insurance covered the cost.
Within weeks of the operation, however, he developed right-sided pain at the same level. But in spite of the surgeon’s opinion that the symptom had arisen as a result of the discectomy, WorkCover Queensland refused to fund a revision discectomy on the basis that the driver’s right-sided pain had been caused by his pre-existing degenerative condition.
Was lack of training at the root of the negligence?
In the Supreme Court of Queensland, the driver brought an action in negligence against his employer, both for the lower back injury and for secondary psychological injury. The driver contended that the employer had breached its duty of care to him by failing to provide training in manual handling techniques and a safe way of exiting from the truck, namely by facing the cabin and maintaining three points of contact. The employer alleged a driving instructor had provided training but at the same time argued there had been no foreseeable risk of injury in the manner in which the driver had descended from the cabin.
Expert engineering consultants provided evidence that the handling of batteries involved a risk of musculoskeletal injuries, in relation to which training should have been provided. The delivery truck should also have been equipped with mechanical lifting aids. Descending from the truck by jumping 0.5 m involved a risk of compression loading or jarring of the driver’s spine. Training in safe ways of descending should have been provided, and relevant guidance had been available in documents such as the Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide from 2000 and the Queensland Government Department of Industrial Relations Workplace Health and Safety Hazard Identification Checklist: Road Freight Transport Industry.
Medical specialists held different views
A problem with the medical evidence was that there was no consistency in the language used by the doctors to describe the driver’s descent from the truck. Some referred to him ‘stepping’ from the cabin and others to ‘jumping’. This seemed to affect their understanding of the cause of the ongoing pain.
Justice Ryan formed the opinion that the most likely cause of the right-sided sciatica was changes in the joint arising from the surgery, and the least likely cause was the progression of degenerative change.
Regarding the psychological problems, there was less disagreement. The driver’s ongoing pain and loss of function had given rise to a depressive disorder. However, the employer’s specialist regarded it as fairly mild (resulting in a 4% impairment) and the driver’s specialist as more serious (first assessed as a 15% impairment in 2015 and reduced to 13% by 2018).
Inadequate training at heart of the matter
Justice Ryan found that the employer was in breach of its duty of care to the driver first of all because of its failure to to provide manual handling training. It had taken ‘no precautions at all against the risk of injury inherent in the handling of at least some of the batteries’, he said.
Yet, the driver had not established a causative link between the lack of manual handling training and his injury. It was the descent form the truck that had been shown to cause the damage to his spine at the L4/5 level. A reasonable person in the employer’s position would have consulted the guidance material identified by the expert engineering consultants and realised that the driver was exposed to a significant foreseeable risk of injury. It should have trained him to reverse out of the cabin and ensure three points of contact and, if necessary, reminded him to comply.
The justice was prepared to accept that the driver may not have understood what the training instructor may have said about exiting the truck, but he was not prepared to find that the driver had deliberately disobeyed the instructor.
The driver had been conscientious enough to mention his previous back problem when interviewed for the job, and there was no reason to think he would not have followed clear work instructions given to him. The employer had breached its duty of care for its failure to provide training relating to the safety of the truck as well.
Justice Ryan assessed the damages and gave judgment for the driver in the sum of $320,865.79.
Kelleher v J & A Accessories Pty Ltd [2018] QSC 227 (4 October 2018)
Originally posted on Workplace OHS
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