Truck driver Terry Damon will receive a total of A$1.7 million (US$1.15 million) of compensation from his employer, a shipper and a consignee, after they collectively caused him to suffer a severe injury to his back, a court has ruled.
“As I was lifting the tyre I felt a pop in the bottom of me back.,” Damon said in evidence.
Damon subsequently had to have surgery and the implantation of electrical nerve-stimulating devices in his back.
Compensation of just under $587,000 has already been paid to Damon.
Background and facts
Trucking company Kokoszko Nominees Pty Ltd employed Damon as a truck driver. Kokoszko was hired by Asixa Logical Outcomes to haul freight from its warehouse in eastern Melbourne to the depot of the consignee Bronzewing Freighters in the small town of Horsham. A straight-line distance of about 205 miles to the northwest-by-west.
Damon was required to pick up the Kokoszko trailer each evening from the Asixa warehouse. He would check the load was secure. He would close the gate and curtains, hook-up the trailer to the tractor and then drive overnight to Bronzewing.
While he did not help with the loading of the trailer at the Asixa warehouse, he would help with the unloading at the Bronzewing depot.
The load hauled was a mixture of palletised and non-palletised freight. From time to time, he would haul large tyres that weighed between 331 pounds to 441 pounds. Sometimes they were even heavier than that.
The tyres were formerly loaded in stacks on a pallet and were unloaded at the Bronzewing depot using a mechanical forklift.
“Unloading the tractor tyres this way involved no manual handling by the worker,” the Victorian Supreme Court said.
Tyres were damaged
It transpired that the edges of the pallet were damaging the tyre bead on the bottom tyre in the stack. A tyre bead is the rim of the tyre and it is usually made of sturdy rubber and steel cable. It fits within a groove on the wheel itself. The pressure from the inside of the tyre keeps the bead in the groove. That keeps the tyre on the wheel and also stops the tyre from sliding.
About six months before Damon’s injury Asixa changed the method of unloading to prevent damage to the tyre bead of the bottom tyre in the stack.
Experts who testified in the case, an ergonomist (an expert in how humans interact with equipment) and an engineer both separately agreed that “the weight of the tyres meant that they should be moved by mechanical means and without requiring any degree of manual handling”.
It was evidently decided that the truck driver would hop onto the trailer and would slide the top tyre off the stack until it would drop to the deck in a vertical position. The Bronzewing forklift driver would come along and use a forklift to pick up and drive away with the tyre.
Deal with it
Damon evidently did not like this methodology as he complained about it to his boss. Unfortunately, he was told “Terry, I’m not there. You are. Deal with it”.
Damon did indeed deal with until the day of the injury on February 8, 2011.
“We kept going down until the second-last one where I had to lift, and, as I was lifting it up, it twisted. I twisted… as I was lifting the tyre I felt a pop in the bottom of me back,” Damon testified.
Safer manual handling
The court accepted expert evidence that that the tyres could have been loaded in several ways that did not damage either the tyre or present a risk of injury to Damon. A forklift with a grabber attachment could have been used or a forklift with long tines and double pallet would have worked too.
Alternatively, a plywood sheet over the pallet to extend the area on which the tyre stack sat would have protected the tyres. Other methods included the ‘chock’ method, cages, or shipper could have loaded the tyres vertically onto the trailer with appropriate restraints.
Employer, shipper and consignee were all liable
The employer (Kokoszko), the shipper (Asixa) and the consignee (Bronzewing) were all held liable for the injury to Damon.
Commenting on the liability of the shipper (Asixa) and the depot operator (Bronzewing), the court noted their “direct inaction in the face of specific complaint. Each of Asixa and Bronzewing have acted in a way that contributes significant causal potency to the injury”.
Asixa’s decision to load tyres without pallets was the “root cause” of the injury and, even though it knew it had a manual handling problem of its own making it “took a view that… it had no responsibility to address the problem”. Bronzewing was liable because it “permitted the worker coming onto the premises to participate in the unloading work it was responsible for undertaking”.
“Asixa and Bronzewing both had knowledge that their actions created or maintained a risk of injury to the worker. The knowledge required a response by them but none was forthcoming,” the court said.
Employer’s liability
Damon’s employer, Kokoszko, was also held liable. Although the employer had no control over how the cargo was loaded or unloaded, it had a duty of care to provide a safe system of work that it simply cannot delegate to other parties.
The court held that there was no safe way to manually unload such heavy tyres. However, the employer could have met its duty of care to Damon by instructing him not to provide any help in manually unloading the tyres. Kokoszko could also have prohibited Damon from manually handling the tyres.
“A prohibition was a relatively simple and straightforward means of discharging this duty,” the court said.
It also ruled that “to do so would not have removed the problem of unloading the tyres, but would have substantially removed the risk of injury to its employee”.
Truck driver was not liable
The companies also sought to hold the truck driver partially responsible for his injury (contributory negligence). This claim was sharply dismissed by the court.
It noted that Damon had in fact complained about the unloading methodology to three separate companies, “all of which owed him a duty to respond in a reasonable way to the risk of injury… and none of them responded to him adequately or at all. In all the circumstances I would fairly characterise his actions as a misjudgement while working to the system devised or tolerated by the employer and Bronzewing, not as a failure to have reasonable regard for his own safety”.
Held by the court
Having considered the evidence and appropriate workplace health and safety law, the court then held that the shipper, Asixa, was liable to pay 35 percent of the compensation. The consignee was liable for 35 percent and the employer was liable for the remaining 30 percent.
