In this alert Brooke Jacobs, Special Counsel and Abbey Wilkinson, Solicitor, discuss the decision of the Victorian Supreme Court in Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62, which considers the apportionment of liability between an employer and a third party for an injury suffered by the plaintiff as a result of an event and then aggravated when working outside her “restricted duties”.

Key point

When an employee returns to work on “restricted duties” it is imperative that the restrictions are adhered to. 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.
Facts

The plaintiff was employed by Liquorland. Her supervisor directed her to climb into a Linfox truck to help the truck driver (employed by Linfox) unload some roll cages that were full of alcohol cartons. During this process, the truck driver unexpectedly let go of a cage and the plaintiff grabbed it and injured her back.

It was conceded by Linfox that the truck driver was incompetent, inexperienced, did not know how to use the machinery/features of the truck that should be used when unloading roll cages and that he was of no real use in the unloading of the truck.

Liquorland and Linfox disputed their relative degrees of responsibility for the plaintiff’s injuries however the amount of the plaintiff’s damages was agreed prior to trial at $1.3m.

Judgment

Two major issues were considered by the court; the liability of each party (Liquorland and Linfox), and whether the plaintiff later performing work beyond her restricted duties made her injuries worse and therefore increased Liquorland’s level of responsibility.

Linfox argued that Liquorland should be more liable because of their failure to adhere to the plaintiff’s restricted duties (she was performing her pre-injury duties and working longer hours than allowed by her medical certificate post the unloading incident). The plaintiff suffered several exacerbations of the original back injury she suffered in the unloading incident while she was on restricted duties.

Liquorland argued that Linfox should be held to be more responsible because the exacerbations that the worker suffered were the “normal sequelae” of the back injury caused by the unloading incident.

The Victorian Supreme Court found:

The fundamental cause of the unloading incident was the ineptitude of the Linfox truck driver who was not given sufficient training.
The steps (additional training for truck drivers) that were adopted by Linfox after the incident should have been adopted before the incident.
Liquorland should have provided its workers with specific instructions not to assist with unloading Linfox trucks.
The plaintiff’s exacerbations of her back injury were caused by working beyond the restricted duties that she was supposed to be completing.
Liquorland was found to be 40% liable for the plaintiff’s damages because they allowed her assist in unloading the truck and because of the subsequent work they allowed her to complete that was beyond her “restricted duties”. The original apportionment of liability was 35%, however an additional 5% was added because of the plaintiff exacerbating her condition by completing duties outside of her restrictions.
Linfox was found to be 60% liable for the plaintiff’s damages because it was more culpable than Liquorland (because they sent an inexperienced and incompetent truck driver to carry out a difficult task).