Collapsing seat or rough ride or pre-existing injury as the cause of the back injury

Clarricoats v JJ Richards & Sons Pty Ltd [2017] QSC 214

McMeekin J

The plaintiff allegedly suffered personal injuries during the course of his employment with the defendant, JJ Richards in January 2013. The plaintiff alleged that he suffered a prolapsed disc as a result of the shock absorber of the driver’s seat breaking away from its mounting bracket while the plaintiff was driving his employer’s truck.

At the time of the injury, the plaintiff was 24 years of age. In dispute were liability and the quantum of damages. Relevantly, the plaintiff had complained of back pain in December 2012, also stemming from the seat of the truck.

Liability

The plaintiff submitted that the defendant breached its duty of care in instructing the plaintiff to drive the truck with the defective seat and that his back injury occurred in the course of that drive. The defendant contended that it was reasonable for it to instruct the plaintiff to drive the truck based on the information it had and that the injury was sustained when the seat collapsed as opposed to during the course of the drive.

Relevantly, as to credit, his Honour was not prepared to act on the plaintiff’s account due to inconsistencies and discrepancies in the evidence. Particularly, his Honour found the differences between the plaintiff’s evidence as to the onset of his symptoms and pre-trial statements and pleadings of high significance.

On the factual issues, his Honour stated:

[58] The probabilities seem to me to favour him suffering pain initially. He had a pre-existing symptomatic condition; it is not in issue that the seat did collapse; and it would not be surprising if there was a sharp forceful impact on the lower back if the seat suddenly descended (it being agreed on the pleadings that there was heavy contact between the seat and the frame of the truck, so from the defendant’s perspective an acceptance of the likelihood of the event). Those aspects reinforce his early and consistent reporting of coincident pain.

McMeekin J accepted that the plaintiff was thrown about within the vehicle and that it was possible that the plaintiff suffered symptoms during the drive. However, his Honour was cautious in relation to the causation of injury:

[89] … Even if symptoms of lower back pain, and pain into the leg to some extent, did occur during the drive no inference can be necessarily drawn as to the causation of injury. While such onset would be consistent with an injury to a disc in the spine occurring during the drive, it would also be consistent with an injury being sustained to a disc in the collapse of the seat

Breach of duty

As to whether the defendant breached its duty of care to the plaintiff, McMeekin J stated:

[95] The starting point is that, as rough and irregular as the road might be, there is no suggestion that the forces that came onto the driver of the Scania truck when traversing the public highway between Moranbah and Clermont, with the driver’s seat shock absorber intact, involved a foreseeable risk of injury to the driver’s spine. The crucial distinction then is between the forces that are applied to the driver when driving over irregularities in the road surface with the seat intact and those applied when the seat is without the shock absorber.

[97] That the likely forces exceed those that would usually pertain is, I think, obvious. The suspension is there for a reason. And I have accepted Mr Clarricoats’ claim that he was thrown about, at least more so than was customary. This however does not show that the forces involved were at such a level that they were likely to cause significant injury.

Further, his Honour accepted that there was a foreseeable risk of injury, informed by the workshop manager’s concession that he would not have instructed the plaintiff to drive the truck with knowledge of the plaintiff’s back pain. Going on to determine the probability and seriousness of the potential injury, McMeekin J stated:

[110] I take the law to be that absent some special knowledge of an inherent weakness or special vulnerability an employer is under no obligation to make enquiry of an employee as to whether he has such a weakness nor is the employer in breach of the duty of care owed if he exposes the employee to risks resulting from his inherent weakness…

..

[112] In my view the employer was not on notice of any special vulnerability and had no duty to enquire further. One complaint of discomfort four weeks before hardly amounts to notice of a vulnerability to injury over and above that common to us all.

For the above reasons, his Honour was not persuaded that the instruction given by the defendant to the plaintiff was in breach of duty.

Notwithstanding this conclusion, his Honour went on to consider causation, contributory negligence and the quantum of damages. Based on the evidence before his Honour, McMeekin J concluded that it was more than likely that the plaintiff’s injury occurred as a result of the sudden bottoming out of the seat as opposed to the actual journey.

Further, based on his Honour’s earlier finding, the plaintiff nor the defendant could have done anything further to avoid the injury, therefore no contributory negligence could arise.

If his Honour had found for the plaintiff, damages as assessed would have amounted to $366,586.82. His Honour took into account the surveillance evidencing far greater movement and function than claimed, his pre-existing condition, and failure to apply himself to rehabilitation or apply for work.

David Cormack – Brisbane Barrister & Mediator

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