To print this article, all you need is to be registered or login on Mondaq.com.
The Facts
Injured worker drives truck with defective seat and develops
back pain
A man worked as a truck driver from September 2011 until May
2014.
Periodically, he was assigned a truck with a defective seat. He
drove this truck for six weeks in 2013 and again from early 2014
until 19 May 2014.
On that day, he informed his shift supervisor that his back was
sore and they agreed that from the following shift he would drive a
different truck with a fully functioning seat.
He consulted a GP on 29 May 2014, who noted that he had a ten
day history of back spasms and also that the seat on the truck was
broken.
On 30 May 2014, the GP certified the truck driver for a period
of three and a half weeks off work.
Injured worker switches trucks, but becomes permanently
incapacitated after sneezing
After returning to work, the truck driver resumed driving, but
in a truck with a fully functioning seat.
However, over the next few months, his back was quite sore after
finishing his shifts.
On 22 December 2014 while getting ready for work, he was sitting
on a couch putting on his socks, when he sneezed and felt the
"most horrendous pain" across his lower back and down his
left leg.
He nevertheless went to work that day, but that night could not
put any weight on his left leg. He contacted his supervisor who
sent him to hospital.
The truck driver was ultimately diagnosed with a spinal disc
protrusion, or herniation. He was found to be permanently
incapacitated and has not worked since.
He was just 32 years old at the time.
Injured worker sues employer for negligence
The truck driver sued his employer for negligence.
The employer admitted it owed a duty of care and that the seat
in the driver's truck was defective, meaning it had breached
that duty.
However, the employer denied causation, saying the defective
seat was not the cause of the truck driver's injury.
case a - The case for the injured worker
case b - The case for the employer
My employer has admitted that it was negligent in providing me
with a truck with a defective seat. Had the seat been safe, I would
not have been injured.
The defective seat did not slide all the way forward as it was
supposed to. I had to let the air out of the air suspension
mechanism, to assist me to reach the clutch pedal. Due to the loss
of the seat's air suspension, I could feel every pothole and
bump in the road. Also, because the seat was too far back, I had to
lean forward, in an exaggerated position, to control the steering
wheel.
An engineer specialising in occupational health and safety has
provided evidence that truck drivers are at risk of spinal damage
due to a combination of prolonged sitting and sitting posture,
vibration and shock loading. He also said that as I could not use
the air suspension of the seat, I was exposed to higher forces
being transferred to my body than if the air suspension could be
used while driving the truck.
A spinal surgeon has also given evidence that the disc
herniation I suffered was attributable to driving on rough terrain
with a broken seat, even though I may have already had some
degeneration to my disc.
Since I would not have been injured if the seat had been safe,
the employer is liable for damages.
We have admitted that the seat was defective. However, this
defect was not the cause the worker's injury.
Contrary to what the worker's engineer has said, our expert
occupational physician has shown that there is no statistically
significant association between heavy physical work such as
strenuous movements, awkward occupational postures, repetition,
bending and twisting and the onset of back pain.
In any event, any back pain the worker might have experienced
after driving with the defective seat caused no more particular
harm than a transient and short-term onset of episodic back pain.
The worker even admitted that in December 2014 he told a friend how
good his back was and that he had ridden his dirt bike once or
twice in the period from May to December 2014.
The actual cause of the worker's injury was pre-existing
symptomatic degenerative disease in his lumbar spine. This is
evidenced by episodes in 2003, 2006 and 2011, when he consulted
doctors for back pain following various incidences of lifting heavy
things. Of significance, he had restricted movement for up to ten
days at a time, predating having ever driven the truck with the
defective seat.
Since the seat defect was not the cause of the worker's
injury, we are not liable for damages and the worker's case
must be dismissed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
