Three defendants found liable in a common law damages claim for industrial accident – Emploi et RH
The Muller v Klosed Pty Ltd case from 2021 provides a good insight into how Victorian courts assess compensation for personal injury and the calculation of damages for injured workers when there is more than one defendant. In this case, a division of responsibility was determined for the employer as well as for two other companies linked to the safety of the equipment involved in the accident.
HOW WAS THE WORKER INJURED?
Anthony Muller was a 61-year-old truck driver employed by Klosed. Part of his job was to move large steel doors on wheels so he could unload the trailers from the truck.
Every Monday, Mr. Muller drove the truck to a TNT-owned job site, where he fixed the trailers, as well as connecting pipes and lights. He was checking to make sure the trailers were properly mounted.
He would then drive the trailers from Melbourne to Sydney, where the trailers would be opened and unloaded.
One of the rollers would sometimes get stuck, snagging the door and forcing it to be forced open.
In March 2015, Mr Muller was in the process of opening this door when the lock attached to it broke. This caused the door to hit it when it came off the roller. The force of the falling door caused him to land heavily on the ground.
The Court found that the heavy fall caused a disc bulge in Mr. Muller’s lower back.
As a result of the workplace accident, Mr. Muller suffered from a lower back injury, as well as anxiety and depression.
Mr. Muller filed a legal claim for workers’ compensation (WorkCover) which was accepted and provided benefits for lost wages, medical expenses and others. He also brought an action for common law damages against three defendants (Klosed, TNT and Redstar) for negligence causing or contributing to his injuries.
KEY ISSUES IN THE COMMON LAW DAMAGES CLAIM
There were three key issues before Justice Keogh:
- Were Mr. Muller’s injuries caused by negligence?
- Who was responsible for ensuring that the truck’s fittings were in good condition?
- What was fair and reasonable compensation for Mr. Muller’s injuries?
While it initially looked like a simple compensation claim against an employer who didn’t properly maintain their trucks, litigation is rarely that simple.
While Klosed employed Mr. Muller, she did not own the trailers on the back of the truck. These belonged to TNT.
To complicate matters further, TNT had hired a third company, Redstar, to carry out safety inspections, maintenance and repairs on the trailers.
Thus, in response to a claim against them, Klosed argued that any trailer safety issues resulted from the negligence of TNT and/or Redstar, rather than anything they could or should have done that could have prevented M. Müller’s wounds.
TNT admitted negligence but argued that Redstar and Klosed were also responsible for the injuries suffered by Mr Muller.
CAUSE OF INJURY?
During the hearing, there was a dispute between Mr. Muller and the defendants on the cause of the breaking of the lock.
The Court closely analyzed the conflicting evidence regarding the cause of the broken bolt and therefore whether it could have been detected that there was a problem before the bolt broke.
He ultimately concluded that Mr. Muller was a credible witness and accepted his description that when he moved the door the running track was uneven, bumpy and worn, and that this wear had caused the bolt to wear and possibly his breakup.
WHO WAS RESPONSIBLE?
In examining the liability of Klosed, TNT and Redstar for the crash and injuries, the Court looked at the contributions each had and the systems they had in place to keep workers such as Mr Muller safe.
The Court criticized TNT, stating that:
“TNT’s only responses to this risk were fault reporting systems, as well as regular safety inspections and maintenance of the trailers. TNT did not warn Mr. Muller of the risk, or provide instructions or training to enable him to avoid injury if a door fell unexpectedly, which made it more important to adhere to systems for reporting and quickly repairing faulty or jammed doors.”
In reviewing Redstar’s role, the Court found that Redstar was aware of the risk of tying chains, breaking bolts and knocking down barriers. In response to this risk, the Court determined that there was:
“.two particular shortcomings in Redstar’s system for safety inspections. First, a safety inspection simply involved moving the rollers back and forth with the door still in position. This meant that the movement of the rollers was not checked only over a relatively small part of the track, and not under the weight.Secondly, at least some inspections were done by torchlight, either because they were done at night or inside the trailer with the curtains closed.
The Court said deficiencies in the security screening system are likely to explain why Redstar’s very regular inspections failed to detect the problem that caused the door to fall on Mr Muller.
The Court found that Klosed was 10% responsible for the accident, TNT 45% and Redstar the remaining 45%.
What compensation was awarded?
For his loss of enjoyment of life (also called “general damages” or “damages for pain and suffering,” Mr. Muller was awarded $275,000.
In assessing this figure, the Court noted that:
- Mr. Muller had lost the ability to return to a profession he loved;
- he seemed to be in significant pain throughout the hearing;
- he needed lots of painkillers and other non-surgical treatments for persistent lower back and leg pain; and
- prior to the accident, he suffered only mild depression and was otherwise well.
For his inability to continue working following the accident (loss of future income and/or loss of earning capacity), the Court awards him compensation of $190,000. This amount has been agreed between the parties.
In total, the Court awarded Mr. Muller compensation in the amount of $465,000.