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
 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".
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.
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
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
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
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
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
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
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).