The idiosyncrasies of the concrete industry have been laid bare in the case of a truck driver who sustained an on-the-job thumb injury when manipulating defective equipment in the course of delivering wet product to a construction site.
Karen Reddock – a New Zealander experienced in machinery operation and driving concrete delivery trucks – was inducted by both ST & T and Boral in May 2018 to drive the former’s cement trucks for delivery of Boral’s cement.The contractual arrangement between those two companies allowed Boral’s batching plant manager to give directions to ST & T’s employees for delivery jobs and to stand them down if it considered any truck to be unsafe.
ST & T was responsible for all truck maintenance except in respect of agitators on those in its fleet that had been supplied and installed by Boral.
Reddock’s first 4 m load on the day of her injury in July 2018 was collected from Boral’s Browns Plains plant at about 6:15 am.
On arrival at the Mansfield job she noticed the delivery chute at the rear of her truck was stiff and hard to rotate into place to aim the pour into variously positioned wheelbarrows.
She reported the defect on her return to Boral’s batching plant manager Simon Dignan who – believing he knew what the problem to be – came down from his office to retrieve a grease gun and apply lubricant through the grease nipples on the sleeve that housed the arm to which the delivery chute was attached.
The extent to which this relieved the problem became a matter of controversy.
Dignan pushed the chute back into its transit position and told Reddock he needed her to do another job because they had no other trucks available.
She departed shortly after with a 6 m load for a Brisbane City Council job in Juliette Street, Annerley.
At that jobsite, BCC workers opened the chute for the pour with Reddock hydraulically controlling the height of the discharge point of the chute by a lever in the cab of the truck.
At the end of the pour, she attempted to rotate the chute back into its transit position. After several unsuccessful pushes against the jammed device she felt a slight tweak or twinge in her hand but thought nothing of it.
The chute was eventually returned into place by a site worker, allowing Reddock to leave the job just after 10 am.
The pain in her hand became more noticeable in the course of her third job of the day, a delivery to a site in Chapel Hill where she relied on workers at the site to manipulate the stiffened delivery slide.
It was on return from there that she sought out Dignan to prepare an incident report in relation to the Juliette Street job only to be told she was needed to drop another load.
Not sure whether she should follow that direction, Reddock called her boss Wade Schrodter to report the truck problem and that she had “bugged her hand”.
Schrodter insisted the truck be returned their Wakerley yard for repair. He called Dignan to explain and drove to the plant to collect Reddock for medical treatment.
The cause of the chute’s stiffness was identified the following day at ST & T’s workshop as the delamination of the linings on both semicircular brake shoes that surrounded its swivel arm. Those linings were known to have a limited service life but were only replaced upon failure because they could not be inspected without the brake being fully dismantled.
The worker’s injury compensation claim – against both ST &T and Boral – came before Justice David Jackson in the Supreme Court at Brisbane.
Reddock contended that ST & T’s safety instruction ought to have been that she should stop work immediately in the event of encountering any unsafe situation.
To escape liability, the company relied on an induction document that clearly spelt out machinery deficiencies had to be immediately reported to it and that “if you feel something is unsafe DO NOT PROCEED”.
While the court accepted Schrodter had explained such things to Reddock, it preferred the worker’s evidence that no such induction document was provided to her.
ST & T’s failure to give a “stop work” instruction did not though – in the judge’s view – constitute a breach of duty as such a stringent requirement was impractical.
Where the truck company came unstuck was the “mixed message” created by a further induction warning – also included on the induction document – that “getting along” with the batching plant manager “makes your working environment much more enjoyable”.
The worker could therefore not have been faulted – Justice Jackson concluded – for following Dignan’s direction to do the Juliette Street job notwithstanding the cement delivery chute on her truck was defective.
His Honour ruled that ST & T was negligent for its “failure to give a clear instruction that the plaintiff was to contact it before proceeding further” in the case of safety-suspect equipment.
Boral was likewise at fault for Dignan having sent the worker on another job without having effectively remedied the defective chute mechanism.
Liability for her hand injury and subsequent psychological decompensation was apportioned equally between the two companies.
When it came to damages Justice Jackson noted that while those payable by the employer were limited by the WCRA to what is allowed under the Civil Liability Act including the ISV scale, those payable by Boral were to be assessed under the common law.
The only material difference that arose was care damages being included in the common law assessment but excluded from the WCRA formulation.
General damages calculated by reference to ISV requirements came in – after reducing an ISV of 30 to 22 due to the chance of the worker independently having developed de Quervain’s tenosynovitis and/or a mental disorder – to yield $43,250.
At common law general damages were assessed at $65,000 – the sum submitted by Boral to be appropriate – but discounted for the same factors by 30% to come in at $45,500.
Justice Jackson gave no reasons for settling on $65,000. He paid no attention to any of the four decided cases to which he was referred. The case on which Boral relied was a 2013 where the plaintiff argued the trial judge’s assessment was manifestly inadequate but where the appeal judges found – by looking back a further 10 years – the amount allowed was at the lower end of the range but not erroneous.
It is notorious that the ISV scale artificially deflates general damages awards. How then can it be that the sum assessed for general damages at common law is almost identical to that arrived at under the scale?
Given the dearth of recent common law assessments in this state, one wonders whether awards in other Australian jurisdictions should be considered by the court for comparison.
Reddock’s damages were awarded at $633k as against ST & T and $727k against Boral.