The 2021 case of Muller v Klosed Pty Ltd gives a good insight into how Victorian Courts assess personal injury compensation and the calculation of damages for injured workers where there is more than one defendant. In this case, an apportionment of liability was determined for the employer as well as two further companies associated with the safety of 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 involved moving large steel gates on rollers so that he could unload the truck’s trailers.
Every Monday, Mr Muller drove the truck to a yard owned by TNT, where he would attach the trailers, as well as the connecting hoses and lights. He would check to make sure the trailers were properly fitted.
He would then drive the trailers from Melbourne to Sydney, where the trailers would be opened and unloaded.
One of the rollers would occasionally get stuck, snagging the gate and meaning that it had to be forced open.
In March 2015, Mr Muller was in the process of opening that gate when the bolt attached to it broke. This caused the gate to hit him as it came off the roller. The force of the falling gate 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 work injury Mr Muller suffered a low back injury, as well as anxiety and depression.
Mr Muller lodged a statutory workers compensation claim (WorkCover) which was accepted and provided benefits for loss of wages, medical and other expenses. He also pursued a claim for common law damages against three defendants (Klosed, TNT and Redstar) for negligence which caused or contributed to his injuries.
Key issues in the common law damages claim
There were three key questions before Judge Keogh:
- Were Mr Muller’s injuries caused by negligence?
- Who was responsible for ensuring that the truck’s fittings were in good order?
- What was fair and reasonable compensation for Mr Muller’s injuries?
While this looked initially like a simple claim for compensation against an employer who did not properly maintain their trucks, litigation is rarely so straightforward.
While Klosed employed Mr Muller, it did not own the trailers at the back of the truck. These were owned by TNT.
To complicate things a little further, TNT had engaged a third company, Redstar, to carry out safety inspections, servicing and repairs on the trailers.
So, in response to a claim against them, Klosed argued that any problem with the safety of the trailers was as a result of the negligence of TNT and/or Redstar, rather than anything that they could or should have done which might have prevented Mr Muller’s injuries.
TNT admitted that they were negligent, but argued that Redstar and Klosed were also responsible for the injuries suffered by Mr Muller.
Cause of the injury?
At the hearing, there was a contest between Mr Muller and the defendants about what had caused the bolt to break.
The Court closely analysed the competing evidence about the cause of the broken bolt and, therefore, whether it could have been detected that there was a problem before the bolt broke.
It ultimately found that Mr Muller was a credible witness and accepted his description that when he was moving the gate, the roller track was uneven, bumpy and worn, and that this wear and tear had caused the bolt to wear and eventually break.
Who was responsible?
In examining the liability of Klosed, TNT and Redstar for the accident and injuries, the Court looked at the contributions of each, and the systems which they had in place to ensure the safety of workers such as Mr Muller.
The Court was critical of TNT, stating that:
“The only responses by TNT to that risk were the systems for reporting defects, and the regular safety inspections and servicing of trailers. TNT did not warn Mr Muller of the risk, or provide any instruction or training to allow him to avoid injury if a gate fell unexpectedly, which made it more important that there was compliance with systems for reporting and promptly repairing defective or sticking gates.”
In examining the role of Redstar, the Court found that Redstar was aware of the risk of attaching chains, bolts failing and gates falling. In response to that risk, the Court determined that there were:
“…two particular deficiencies in Redstar’s system for safety inspections. First, a safety inspection simply involved moving the rollers back and forth with the gate still in position. This meant movement of the rollers was only checked over a relatively small part of the track, and not under weight. Second, at least some inspections were by torchlight, either because they were conducted at night, or inside the trailer with the curtains closed.”
The Court stated that the deficiencies in the system of safety checks probably explain why Redstar’s very regular inspections did not lead to detection of the problem which caused the gate to fall on Mr Muller.
The Court concluded that Klosed was 10% responsible for the accident, TNT bore responsibility for 45% and Redstar the remaining 45%.
How much compensation was awarded?
For his loss of enjoyment of life (also called “general damages” or “pain and suffering damages”, Mr Muller was awarded $275,000.
In assessing this figure, the Court noted that:
- Mr Muller had lost the capacity to return to a profession that he loved;
- he appeared to have significant pain for the duration of the hearing;
- he required extensive pain medication and other non-surgical treatment for ongoing lower back and leg pain; and
- before the accident, he had only mild depression and was otherwise well.
For his inability to continue to work following the accident (loss of future earnings and/or loss of earning capacity), the Court awarded compensation in the amount of $190,000. This amount was agreed between the parties.
In total, the Court awarded compensation to Mr Muller in the amount of $465,000.