Written by Peter CarterMarch 27, 2019
With no thought of the physical toll that the heavy work might have on his 45-yr-old frame, Jason Kelleher took up his role with Century Batteries at Labrador in January 2012.
The job demanded he deliver car and boat batteries – some weighing more than 60kg – to Century customers all over the Gold Coast.
Given his diagnosis just months before of a bulging disc in his lower spine, his exposure to heavy lifting was not ideal.
Jason was up front with the battery company about the earlier injury and was offered the job after passing a half-day trial.
The disc condition was apparently a product of his May 2011 road trip to re-locate north from NSW and the arduous tasks of moving residence and settling in.
Although the symptoms had included referred pain to his left buttock and pain radiating down his left leg, the condition substantially resolved by the end of that year without needing any invasive treatment.
As luck would have it, the battery delivery driver’s back condition deteriorated – with increasing back, buttock and sciatic leg pain, which he self-treated with periods attached to an inversion table – over the 20 months he was in the position.
Then in August 2013 he jarred his back by jumping 50cm to exit the truck cab, to the ground.
A discectomy funded by Workcover followed. Within weeks, he developed pain to the right side of his lower back causing neurosurgeon Laurence McEntee to recommend a revision procedure.
Workcover refused funding for the revision and an inevitable workplace injury dispute followed.
His case for negligence and breach of contract against his employer was eventually heard in the Supreme Court over five days in June 2018.
Jason alleged that his lower back injury and a psychological condition had resulted from repetitively lifting the batteries over the entire period and from the August 2013 truck cab exit.
He enlisted safety engineers Phillip Byard and Brendan McDougall to provide expert commentary as to manual handling techniques and truck egress safety.
“Batteries weighing more than 33 kg should not be handled manually,” explained Bayard. “Risks associated with lifting 93 batteries from 1kg to 52kg” each day should have been instructed.
Contrary to the employer’s contentions, Justice Soraya Ryan found that the worker received no on-the-job instruction, training, assistance or warnings about battery handling techniques.
“I find that no such assistance or instruction or trolley (as pleaded) was provided,” she wrote in her 85 page decision.
And had Jason employed a “three points of support technique, he would have been better able to control his rate of descent,” stated McDougall in relation to the truck cab exit “and the potential for injury would have been significantly reduced”.
Century’s contention that it in fact instructed such technique for descending from the driver’s seat in his assigned truck – Neil Armstrong style – was also dismissed by her honour. Neither did it monitor his observance of any supposed safety direction.
On that basis Century went down on the second count as well.
The connection between the workplace events and Jason’s resulting medical condition fell to be decided in a contest between neurosurgeons, Scott Campbell for the plaintiff and Robert Labrom engaged by Workcover Qld who resisted Jason’s claim on behalf of Century.
The latter appeared to have misinterpreted Jason’s answer to his pre-consultation questionnaire that the height from which he exited the cab was “1 – 2 feet” as justification for a description of the action as a “step” rather than a jump.
Campbell concluded Jason’s 13% impairment was 60% of which was attributable to his pre-existing disc protrusion and 40% to the manual handling and truck cab exit to which he concluded Jason’s post-discectomy pain were a product of that surgery.
Labrom – whose qualifications include a Master of Science in Spine Biomechanics – initially concluded by different means that the truck cab exit was responsible for 50% of his current pathology, a finding that he later revised down to 20% in a subsequent report. He also argued that the serious post-discectomy pain Jason experienced was a product of the pre-existing condition.
Her honour devoted 10 pages of her judgment to a discussion of Dr Labrom’s reports and evidence making specific reference to various errors.
“Several aspects of Dr Labrom’s opinion reflected his misunderstanding or misinterpretation of the plaintiff’s history – detracting from the weight of his evidence overall,” she observed.
She also believed the weight of his evidence was diminished by not being prepared to make concessions after reconsidering “the corrected facts on the run during cross-examination”.
One would have expected those findings to have been enough to allow Jason’s case to come home strongly.
Not so. In the absence of evidence that appropriate manual handling techniques would have prevented or moderated the injury, Century could not – the judge reasoned – be held responsible for that aspect of Jason’s impairment.
“Dr Campbell was not asked to comment about whether the aggravation would have happened had particular measures been taken other than in too general a way.”
It was therefore not possible for the judge to conclude “as a matter of direct evidence or of inference, that had a certain precaution been taken, the plaintiff’s injuries [from battery handling] would have been prevented or minimised.”
However a finding in Jason’s favour that the discectomy following the truck cab jump and complications arising from it, were all work related, brought home the win.
That was enough for total damages to be assessed at $414k, including $182k for loss of future earning capacity – significantly discounted due to our protagonist’s pre-existing condition – and just $14k for general damages.
“The plaintiff showed a remarkable capacity to deal with the labour of his workload,” the judge remarked in recording judgement in Jason’s favour.
For a similar case regarding failure to train on safe methods of descending from a truck cab, click here.