Brisbane Truck Driver Awarded $1,052,000 Damages
Mr Kean Austin, represented by The Personal Injury Lawyers (formerly McCowans Lawyers), was awarded damages of $1,052,170.50 in the Brisbane Supreme Court. Matters in issue at the trial, other than the quantum of the Plaintiff's claim, were liability, contributory negligence and causation.
Liability was eventually conceded by the Defendant on the final day of trial. This occurred after evidence was placed before the Court of poor loading systems, defective equipment and flexing trailers used in transporting milk products, resulting in loads dislodging during transit, as well as the employer, Parmalat, being well aware of the problem of falling loads prior to the Plaintiff's injury.
In its decision, the Court dismissed the Defendant's claim of contributory negligence against the Plaintiff, finding that the Plaintiff had not contributed to his work injury occurring. The Court also accepted the Plaintiff's evidence that the head injury sustained in the event had resulted in his developing a partial form of epilepsy, which was disputed by the Defendant at trial.
The incident & injury
The Plaintiff was struck in the head by one or more milk crates full of containers of cream, weighing approximately 18 kgs each, that had come loose from their restraints and fell out of the truck onto the Plaintiff as he was opening the trailer door for unloading. Witness evidence at the trial indicated that there were around 40 milk crates that fell from the truck.
The Plaintiff was knocked unconscious for an unknown period of time following the incident. When he came to, he managed to stagger into the Parmalat warehouse before collapsing. He was taken to hospital following the accident where his head injury was sutured, and he was then discharged home.
Within a few weeks of the work accident, the Plaintiff and his wife noticed he was suffering difficulties with mood swings, memory dysfunction, headaches, tiredness, irritability and periods where he would go into a blankness or type of absence. The Plaintiff was diagnosed with suffering a form of epilepsy where he would have short periods of not being present which were described as blackouts or absences. As a consequence of this, the Plaintiff was no longer able to hold a drivers’ licence and therefore could not return to his work as a truck driver.
The Plaintiff sued his employer, Parmalat, in negligence and for breach of the employment contract. The Plaintiff argued that the milk crates had fallen from the truck because the trailer in which they were being transported was old and defective, and the warping of the trailer sides over time caused flexing during transit, making restraint devices unreliable. Further, the Plaintiff argued that the restraint devices provided by Parmalat to secure loads were, for the most part, unreliable, defective and in need of replacement.
Evidence given at the trial showed that the trailer in question had been sold by Parmalat almost immediately following the work accident of the Plaintiff. An inspection report of the trailer just prior to sale showed evidence of the trailer being old, rusted, having cracked and uneven flooring and wall rot in the ply walls, and unserviceable doors. The main bearers were noted to show signs of severe corrosion. Witness testimony provided by an employee, and former employee of Parmalat, confirmed the Plaintiff’s evidence of poor loading systems, defective equipment and flexing trailers used in transporting milk products. It also confirmed the Plaintiff’s evidence that the employer was aware of loads falling from trailers which were a regular occurrence.
The Plaintiff provided expert evidence that more reliable restraint devices were available to the employer and the Plaintiff argued that the employer was aware of those devices. The Defendant contended initially that these restraint devices were not in existence at the time of the work accident occurring, however, later conceded that they were in fact in existence and the employer had been aware of them for some time, having instigated a trial of these restraints some time before the work accident.
After all of the evidence had been adduced at trial and the cases for the Plaintiff and Defendant had closed, the Defendant conceded liability for the accident occurring in it's closing submissions. However, the Defendant continued to maintain a claim of contributory negligence against the Plaintiff on the basis that the Plaintiff had not followed safety procedures known to him when opening the doors of the trailer.
The Defendant argued that, at the time of the accident, the Plaintiff had opened both doors of the trailer at once and failed to use the doors as a shield when opening the trailer as he had been instructed to do, and therefore had placed himself in the path of the falling milk crates.
The Plaintiff gave evidence that he was an experienced truck driver and was well aware of the dangers when unloading trailers and had always adhered to safe work practices when opening trailer doors after transit. He testified that, at the time of the accident, he had only opened one door of the trailer when the spill occurred, but believed the other trailer door had been pushed open by the force of the falling milk crates which weighed approximately 540kg. In support of this argument, the Plaintiff pointed to a notation in the inspection report of the trailer admitted into evidence, that the trailer doors were “unserviceable” at the time of the work accident occurring.
Evidence was given by an employee of the Defendant who cleaned up the fallen milk crates and broken cream bottles following the accident, that from his recollection, both trailer doors were open when he came upon the truck with the spill on the ground next to it. This raised the question as to who had opened the second door of the truck.
Her Honour Justice Dalton accepted the Plaintiff’s version of events that he had only opened one door of the trailer when the accident occurred. She considered that, on the balance of probabilities, it was the falling load that had forced open the other trailer door. In making her decision, Her Honour referred to the doors of the trailer being reported as “unserviceable” at the time of the work accident. She also considered that the other reported defects in the trailer (rotting floors, rusted bearers etc) could also have contributed to the door giving way upon the load hitting it. Other scenarios that Her Honour found were open to her on the issue were that another employee of Parmalat could have come along after the accident and opened the second door of the trailer, or, the evidence of a witness who attended on the accident scene sometime after the event, that both trailer doors were found open, was inaccurate given the time lapse from the date of the accident to the trial when he was first asked to recall this information.
Her Honour found that the Defendant had not proved a case for contributory negligence on the part of the Plaintiff. She preferred the evidence and submissions of the Plaintiff in this regard and found there was no negligence by the Plaintiff that contributed to his work accident and injuries occurring.
One of the main issues in the case was causation and the extent of the injury sustained. The Defendant put forward a case that the Plaintiff had not in fact suffered epilepsy as a result of the work accident, but was either feigning epilepsy, did not suffer epilepsy, was unconsciously mimicking epilepsy, or suffered a genetic form of epilepsy that was not caused by the work accident. The Plaintiff argued that the head injury suffered in the work accident had resulted in the Plaintiff developing a non-specific type of epilepsy.
Conflicting evidence was given by the treating neurologists and neuro-psychologist, and medico-legal evidence was submitted from a neurologist, neurosurgeon and two psychiatrists. Both treating neurologists gave evidence that it was their opinions that the Plaintiff did suffer a form of epilepsy, however there was some conjecture as to whether the epilepsy had been caused by the work accident.
Minor injuries can show up months or even years after their events
One of the treating Neurologists, Professor Eadie, asserted that the Plaintiff had coincidentally developed a genetic form of epilepsy within the months following the accident. He based this on the presence of myoclonic jerks. He gave evidence that this was indicative of juvenile myoclonic epilepsy, a genetic condition. However, under cross-examination he gave evidence conceding that a minor head injury can result in epilepsy, which can start to occur months or even years after the event.
Professor Eadie gave evidence that he had been informed by the Plaintiff by a series of leading questions that the Plaintiff did suffer from occasional jerks, and this information had resulted in Professor Eadie diagnosing the Plaintiff with juvenile myoclonic epilepsy. The Plaintiff’s de facto partner gave evidence that she had never seen the Plaintiff suffer any jerking at any time, and had only witnessed him displaying a type of staring into space when he suffered absences. The absence of jerking was supported by the evidence of the Plaintiff’s mother, who testified that she had never seen the Plaintiff suffer any jerks, and he had lived with her for most of his life and she still saw him on a regular basis.
The Plaintiff argued that the reporting of jerks by Professor Eadie was the result of a communication problem and the leading questions of Professor Eadie to the Plaintiff at the time of his initial review of the Plaintiff, and the Plaintiff did not in fact suffer myoclonic jerks or juvenile myoclonic epilepsy. Treating Neurologist Dr Pascoe, who first diagnosed the Plaintiff with epilepsy, gave evidence that she believed the Plaintiff’s epilepsy was the result of the head injury at work and was not a genetic condition as submitted by Professor Eadie.
Dr Olrich, Neurologist, who gave evidence for the Defendant, testified that it was his opinion the Plaintiff did not actually suffer epilepsy at all. However, he did concede during testimony and upon questioning by Her Honour that even a minor head injury can result in a person developing epilepsy. Dr Campbell, Neurosurgeon, who gave evidence for the Plaintiff also testified that the head injury suffered in the work accident could cause epilepsy.
Her Honour Justice Dalton, after studying the medical evidence and the evidence of the Plaintiff, his partner and mother in detail, accepted that the Plaintiff had developed an epileptic condition following the work accident, but she did not accept Professor Eadie’s diagnosis of juvenile myoclonic epilepsy. She accepted that, on the balance of probabilities, the Plaintiff suffered from a form of epilepsy which had developed as a consequence of the head injury sustained by the Plaintiff in the work accident.
Assessment of quantum
When considering the extent of injuries sustained by the Plaintiff in the work accident, Her Honour did not accept that the Plaintiff suffered from a diagnosable psychiatric disorder as a result of the accident, preferring the evidence of Psychiatrist Dr Prabal Kar on this issue. Her Honour also did not accept that he suffered cognitive deficits as a consequence of his head injury. Consequently, Her Honour’s assessment of quantum was solely on the basis of the Plaintiff suffering epilepsy (partial epilepsy /petit mal siezures), developed as a result of the head injury in the work accident.
Of interest in Her Honour’s assessment of quantum is that she considered that although the Plaintiff would not be able to return to work as a truck driver and would suffer restrictions in his employment due to his epilepsy, he did have a residual earning capacity. She assessed this to be in the order of $300 per week, allowing the Plaintiff a loss of $1,000 per week into the future to age 65 years. She reduced this by 20% for contingencies due to the Plaintiff suffering other medical conditions (neck and back injuries) that may impact upon his employment, and a history of the Plaintiff taking approximately one year off work in the period just prior to his work accident occurring, indicating that he may have also done this at times in the future. Her Honour also reduced past economic loss by 10% for similar contingencies.
A summary of the quantum awarded is as follows:
|Past Economic Loss||$273,929.00|
|Past superannuation loss||$24,653.00|
|Fox v Wood component||$13,519.76|
|Future Economic Loss||$576,960.00|
|Future loss of superannuation||$51,926.40|
|Past special damage||$20,403.19|
|Future special damages||$7,820.00|
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