Driver training, restricted duties and sacking issues at centre of workers compensation outcome worth $1.3 million
The use of an untrained and unsuitable driver has ultimately cost Linfox $780,000 in compensation to a warehouse worker, but lawyers point out that the figure was augmented by $520,000 from a customer due to it not adhering to the employee’s restricted duties.
HopgoodGanim special counsel Brooke Jacobs and solicitor Abbey Wilkinson were commenting on the extended payout to the worker in the case Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62.
This was a Wrongs Act case in which the $1.3 million payout had already been agreed and the liability weighting between Liquorland parent Wesfarmers and transport provider Linfox was defined at 40 per cent and 60 per cent respectively.
That finding is related to the subsequent Wesfarmers v Linfox Australia Pty Ltd [2015] VSC 63 case, where Linfox’s contribution amount, as sought by Wesfarmers as a self-insurer, was argued.
This case was conducted under the Workers Compensation Act, which opens angles of defence.
In one such angle, Linfox asserted that the worker’s sacking had had contributed to the amount she was paid out due its psychological impact on top of her already chronic pain.
In 2008, the worker and two of her managers were involved in helping unload a Linfox truck, the driver of which was unable to use the electric pallet jack or the automatic tailgate.
One of the loaded roll cages the driver pushed towards the worker came before she was prepared for it and she instinctively grabbed it before it hit her supervisor.
In doing so, she aggravated an earlier workplace injury that doctors had advised meant she should only undertake light duties on her return to work.
Despite the shortcomings at the Liquorland warehouse, the primary cause of the incident was adjudged to be the lack of training for the driver.
The judge notes that Linfox’s later operational actions – including a ‘buddy’ system to assist a driver on their first day, re-training drivers and issuing an internal safety alert – were steps that should have been made before the incident.
The lawyers note Liquorland original 35 per cent liability was increased by 5 per cent “because of the plaintiff exacerbating her condition by completing duties outside of her restrictions”.
“When an employee returns to work on ‘restricted duties’ it is imperative that the restrictions are adhered to,” they say.
“If they are not, it can have an impact on not only the amount of damages that a worker receives, but also the percentage that the employer is held liable in a multiparty claim.”