List member Jessica McClymont appeared for the Plaintiff in Kelleher v J & A Accessories Pty Ltd [2018] QSC 227.
In 2011 the Plaintiff was found to have damaged his intervertebral disc at the L4/5 level. In January 2012, he was employed by the defendant, which traded as Century Batteries. The plaintiff’s employment required him to deliver batteries to several customers a day, including batteries weighing over 20 kilograms. He suffered intermittent back, buttock and leg pain in the course of his employment which he treated with an inversion table.
On 21 August 2013 the Plaintiff further injured his spine at the L4/5 level exiting from his truck, resulting in the need for a discectomy to relieve it. WorkCover funded this operation. Within weeks, he developed pain in his right side. His surgeon recommended a revision discectomy but WorkCover refused to fund it, on the basis that the right-sided pain was the result of a pre-existing condition. The plaintiff brought a claim in negligence against the defendant seeking damages for personal injury, including lower back injury and secondary psychiatric/psychological injury.
The Defendant had not given the Plaintiff any instruction in how to avoid injury when lifting the batteries. The Defendant therefore breached its duty of care to the plaintiff. However, the Plaintiff had not proven that that this breach of care was causative of his injuries. There was no evidence that, had precautions been taken, the Plaintiff would not have suffered the injury.
The Defendant did not train the Plaintiff in exiting his vehicle, remind him of previous instruction, or monitor his method of exiting the vehicle. Ryan J found that he had been instructed in the reverse method when taking a lesson before getting his truck licence, but may not have understood that this method also applied to exiting the smaller truck that he drove. Given his good employment history and his desire to be sure the employer understood he had previous back problems, Ryan J found the Plaintiff was likely to have followed such an instruction and, if so, was unlikely to have suffered the injury to his back from exiting the truck.
In relation to the right-sided symptoms that emerged after surgery, Ryan J found that that it was likely that they had been caused by the surgery.
However Ryan J also found that the pre-existing degenerative condition continued to deteriorate over time which contributed significantly to the post-surgery symptoms and other pain. In light of this, the award for future economic loss was reduced by 60%.
See judgment here: https://www.sclqld.org.au/caselaw/QSC/2018/227
Case note written by Krystal Harlen