Terry Damon sustained injury while unloading tractor tyres from trailer
An injury caused by unloading tractor tyres from a trailer has seen a truck driver awarded $1.7 million compensation in Victoria’s Supreme Court.
Terry Damon’s employer, Kokoszko Nominees, freight forwarder Asixa Logical Outcomes, and receiver Bronzewing Freighters were all found to have breached their duty of care towards Damon.
Asixa contracted Kokoszko to take freight from its Pakenham warehouse to the Horsham depot of Bronzewing, which was contracted to unload freight from Kokoszko’s truck and transport it onwards to other parties.
On February 8, 2011, Damon suffered an injury to his lower back when assisting a Bronzewing employee to unload large tractor tyres from the truck trailer at the Bronzewing depot.
He has required surgical interventions and the implant of two neuromodulation systems.
In claiming damages from the three defendants the total came to $1.7 million, minus $586,936.14 already received via WorkCover compensation.
EVENTS
Damon’s role involved transporting freight of various sizes from Asixa to Bronzewing.
He did not load the truck, but did assist unloading from the trailer while a Bronzewing employee operated a forklift from the ground.
On the day he was injured, he was tending to a large stack of tyres, lifting at one side and levering it from horizontal to vertical.
“As I was lifting the [second-last] tyre I felt a pop in the bottom of me back”, he explains.
Read about a WA livestock transporter’s injury payout, here
Damon testified that, about six months before his injury, Asixa changed the way it loaded the tractor tyres.
He said previously they were stacked on a pallet, which required no manual handling when unloading.
However, there were issues with the edges of the pallet damaging the bead of the bottom tyre and “as a result of this problem the tractor tyres were no longer loaded for transport on a pallet.”
By removing the pallets from the loading process, “a system [of unloading] that was entirely mechanical and required no manual handling on the part of worker, was no longer possible”.
Experts at the hearing agreed that the weight of the tyres – more than 150kg, possibly up to 200kg and above – meant that they should have been moved mechanically and without any manual handling.
DUTY OF CARE
Both Kokoszko and Bronzewing accepted their duty of care responsibility.
Asixa submitted that it did not owe a duty of care, or, alternatively if it did, then any duty was in no way similar to the duty owed by the employer or the occupier, as, due to contractual arrangements, it “had no ‘direct relationship’ with the worker, who was the employee of an independent contractor”.
However, judge Jacinta Forbes found that Asixa “had a duty to load trucks taking reasonable care that in so doing it avoided exposing the worker to unnecessary risk of injury and it minimised other risks of injury.
“In my view it is reasonably foreseeable that truck drivers transporting freight might be injured by their participation in Asixa’s commercial freight forwarding activity, if reasonable care was not taken by it in the manner of loading the truck that they are to drive.”
It was found that the change in loading method removed the risk of tyre damage but had no regard for the unloading consequences that might result from that change.
Damon testified that he was required by his employer to provide help unloading the freight and he could see no other way of getting the tyres off the stack.
Kokoszko was found to be in breach as, when informed by Damon of the problem, his boss responded: “Terry, I’m not there; you are. Deal with it.”
Bronzewing was also in breach despite flagging the issue and suggesting the tyres be stacked vertically to be unloaded by forklift without damaging the tyres.
“The breach lay by permitting the continued practice of unloading by forklift and manual handling without either making adequate representations to Asixa that its change presented unsafe unloading conditions at its premises and, failing agreement with Asixa, by taking no steps to implement an alternative safe method of unloading,” Forbes says.
Asixa’s liability lay in becoming aware that the method of loading no longer permitted mechanical unloading, thus knowing of a risk of injury created by its actions.
“On becoming aware that its actions created a risk of injury where none existed previously, taking no action was not a reasonable response. I find Asixa was in breach of its duty to the worker,” Forbes says.
Forbes found no contributory negligence on Damon’s part, noting he “did raise his concerns and complained about the manner of unloading with three entities, all of which owed him a duty to respond in a reasonable way to the risk of injury to him that now existed, and none of them responded to him adequately or at all.”
Further, expert evidence found various ways the tyres could be transported, loaded and unloaded without recourse to manual handling of the tyres.
“These alternatives canvassed six options: forklift with grabber attachment, forklift with long tines and a double pallet, a plywood sheet over pallet to extend the surface area on which the tyres sat, the ‘chock’ method, stillage or cages, or vertical stack restrained.”
Forbes apportioned 30 per cent liability to Kokoszko and 35 per cent each to Bronzewing and Asixa.