Solomona v No 1 Riverside Quay Pty Ltd
[2016] QDC 289
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- Unreported Judgment
- Solomona v No 1 Riverside Quay Pty Ltd[2016] QDC 289
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Solomona v No 1 Riverside Quay Pty Ltd[2016] QDC 289
Solomona v No 1 Riverside Quay Pty Ltd[2016] QDC 289
DISTRICT COURT OF QUEENSLAND
CITATION: | Solomona v No 1 Riverside Quay Pty Ltd [2016] QDC 289 |
PARTIES: | SORAYA KARINE SABINA SOLOMONA (plaintiff) v NO 1 RIVERSIDE QUAY PTY LTD (ACN 006 639 07) (defendant) |
FILE NO/S: | 27/14 (Southport Registry) |
DIVISION: | Civil |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court at Southport |
DELIVERED ON: | 18 November 2016 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 25, 26 and 27 October 2016 |
JUDGE: | Dorney QC DCJ |
JUDGMENT & ORDER: |
|
CATCHWORDS: | Employment – injury to employee – whether duty of care statutorily breached |
LEGISLATION CITED: | Workers’ Compensation and Rehabilitation Act 2003 Part 8 of Chapter 5, ss 305B, 305C, 305D, 305E, 306, 306O, 306N, 306J Workers’ Compensation and Rehabilitation Regulation 2003 sch 8, Part 2, Division 1, s 2, sch 8, Part 2, Division 2, s 8, sch 9 Workplace Health and Safety Act 1995 s 37A |
TEXTS CITED: | Glass, McHugh and Douglas, The Liability of Employers, 2nd ed, The Law book Company Ltd, 1979. |
CASES CITED: | Benic v New South Wales [2010] NSWSC 1039 Camden v McKenzie [2008] 1 Qd R 39 Derrick v Cheung [2001] HCA 48 Erickson v Bagley [2015] VSCA 220 Fox v State of Queensland [2016] QDC 146 Gratrax Pty Ltd v TD & C Pty Ltd [2013] QCA 385 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Medlin v State Government Insurance Commission (1995) 182 CLR 1 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 State of NSW v Mikhael [2012] NSWCA 338 Stitz v Manpower Services & Anor [2011] QSC 268 Stokes v House With No Steps [2016] QSC 79 Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 Tabet v Gett (2010) 240 CLR 537 Vairy v Wyong Shire Council (2005) 223 CLR 422 Vincent v Woolworths Ltd [2016] NSWCA 40 Wilkinson v Law Courts Ltd [2001] NSWCA 196 |
COUNSEL: | R D Green for the Plaintiff K S Howe for the Defendant |
SOLICITORS: | CMC Lawyers for the Plaintiff Jensen McConaghy for the Defendant |
Introduction
- [1]Should an employer be held legally liable for a back injury suffered by its employee in circumstances where the employee, in the process of lifting baskets containing ice cream products (within a thigh high, flat top ice cream freezer with sliding panels for easy access by the general public) located in a customer area of a service station, meets resistance to lifting because an edge of such a basket had become frozen (to some extent), when a general Targeted Replenishment card had been provided to all employees which, indirectly, drew attention to avoiding “sudden or jerky movements”? That is an over simplification of the full circumstances involved; but it does raise, starkly, the issue of where the boundary line is to be drawn between taking reasonable care for an employee’s safety and safeguarding the employee “completely from all perils”: see Muir JA in Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 at [31].
Background
- [2]The plaintiff, Soraya Karine Sabina Solomona, was aged 33 years at the time of the relevant incident on 1 November 2010, having been born on 2 January 1977. There was a second “work” incident involving the plaintiff’s back on 9 April 2012 – but it has not been sued upon (though is relied upon as an aggravation of the earlier injury). On the date of the incident she was employed by the defendant, No 1 Riverside Quay Pty Ltd, as a customer service representative. As described by her, at the BP Service Station at Labrador where she was working, she was required – as expressed in her own words – to clean petrol bowsers and serve customers in circumstances where “everyone” needed “to do everything”. Specifically with reference to her role in the convenience store of the service station, among her duties were to refill the shelves and change the products. She had earlier been employed by the defendant in New South Wales in the same role before she relocated with her family to Queensland.
- [3]The task that she was directed to undertake on the day of the incident was to complete a “planogram”. As explained by Mr Graham Pickrell, a store manager of BP who knew the plaintiff, a planogram “is the same as, basically, stock replenishment” (namely, “moving stock from one spot to another or taking out lines if they have been discontinued and new lines have got to go in. New stocks come in and need to be presented”). Specifically with respect to the implementation of a planogram, the “plan” would be sent down from head office which “might be moving certain lines to a different basket because all your baskets are in a certain order” but it “could also be taking a certain line out because it’s been discounted by Streets or Peters, and you’d be putting a new line in”. And there was evidence that a planogram applied to “every category” of product.
- [4]At trial, as part of a bundle of documents tendered by consent (which became Exhibit 3), there were 5 photographs of an ice cream freezer. Those photographs were acknowledged by the plaintiff to be of the “same type” of freezer, though, when asked about its difference in any way, she was unable to state anything but the “colour”. Mr Pickrell described the photographs as showing the “type” of freezer in place at the time. He added that sometimes the freezers were Streets and sometimes they were Peters, noting that “they’re exactly the same; and they might change the size depending what store it is”.
Disputed (and other) matters
- [5]The plaintiff adamantly denied that she had done a planogram before. But I reject that in light of the evidence given by a co-worker called on her behalf, Ms Jean-Marie Oats (for reasons that I elaborate on later). According to Ms Oats, she and the plaintiff used to work together at the BP Labrador and they both had the same role insofar as these products were concerned. After acknowledging that implementing a planogram is similar in terms to the activity of the replenishment of stock (with both involving lifting the ice cream baskets and rearranging such), she agreed that it was “part and parcel” of the duties that she did. She expressly stated that the plaintiff “had done this sort of job before with the ice cream freezer”, referring specifically to both the replenishment of stock and the implementation of a planogram. In re-examination, Ms Oats’ evidence in this respect did not change.
- [6]It was not in dispute that the ice cream freezer was in the general customer area, accessible by such customers. There was no evidence contrary to that given by Ms Oats (who gave the most detailed evidence concerning staff involvement with the ice cream freezers) that “as a matter of common sense” she did a “visual check to see if there is a build up of ice, or shake it” and that others would do that, both before and after this incident, agreeing that it was “a fairly routine task”. She stated that this was in contrast to the main freezer where “pies and things” were stored, since it did not have “ice build up like the other one”.
- [7]As for the location of the ice on the ice cream basket on the day of the incident, after some consideration of the various photographs in Exhibit 3, the plaintiff settled on Photograph 4 and made a mark on it. In that photograph the marked area was to the right and identified a part of a basket at the right edge of the freezer. As described by the plaintiff, the ice was “(under) the little white thing. It was stuck to the freezer”, with the plaintiff indicating that the part of the basket which was stuck was the “little bit, on the side of the freezer”. In general terms concerning the task asked of her, the plaintiff stated that she “didn’t think” she “would have any problem doing” it. She stated that she looked to see if it was “okay” - conceding that “okay” meant that there was no impediment or any difficulty with lifting - adding that it was to “maybe assess the weight”. The plaintiff further stated that it “looked fine” to her. She had earlier stated that, when she started to pull the basket, it “resist(ed)” and, when asked if she knew why, she stated further that she had a “quick look” and “under there was some ice”. She then stated that she “tried to keep pulling a little bit to see if it gets loose” and, when then asked whether “that” did anything to her back, she replied that “(t)hat’s when I hurt that first”, though she then added that she “didn’t see it so I kind of pulled and didn’t expect the basket to resist”. As her evidence in whole indicated, she saw the ice after the first resistance but continued pulling, apparently despite the initial pain. In answer to the question proposing that she would “know that as a matter of common sense” there can be a “build up of ice”, the plaintiff responded that “(i)t could be, but I didn’t think of that. I don’t know.” She admitted that she had seen a build up of ice earlier in her life in her “mum’s freezer”.
- [8]Ms Oats, after acknowledging there was not any specific instruction or direction or training “in relation to how that was to be done” for “that particular job”, recalled that there was an attempt after the incident to make such a “step-by-step process” but that it was “just very difficult” because the attempted process caused “strain on the back”. But Ms Oats, when questioned about whether, in the end, there was any change of method after the incident from that applying before, stated that there was “no change of method. No”. Describing the procedure generally, Ms Oats stated that the ice built up at the bottom of the freezer, then ice creams “sort of” stuck to it and it “built up around the baskets as well at the top”, such that “sometimes you’ve really got to shake them to get them out to break the ice off”.
Plaintiff’s credibility
- [9]While I do accept that there was, as described by the plaintiff, a “little bit” of ice which “stuck” the basket to the side of the freezer in some way, I have found the plaintiff to be less than forthcoming in many areas of her evidence, particularly where there otherwise seemed to be no reason why she would adamantly contest as significantly different something which appeared to me to be obviously not. Thus, the conclusions that I reach are based upon a consideration of where the probabilities lie in an objective analysis of all of the evidence: see Camden v McKenzie [2008] 1 Qd R 39 at 48-49 [34]-[35]. An example of that was her persistence in attempting to distinguish between the tasks to be carried out when replenishment of stock (including ice creams) was required and when a planogram needed to be implemented (including ice creams). Although they were slightly different tasks, that difference only arose because the planogram required the ice creams (and such like) to be placed in specific baskets in specific areas of the freezer. There really was no other difference. In both: individual ice creams (and the like) needed to be moved; it was necessary to remove the baskets in order to “top up” those baskets from the boxes containing the additional supplementing items below them; it was necessary to pull back the covering lid of the freezer before beginning any task in the freezer itself; and, adopting Ms Oats’ evidence, there was ice to be seen in the freezer itself.
- [10]What the plaintiff appeared to project was a statement of her position based upon what she viewed as a significant difference between implementing a planogram for ice cream stock and replenishing ice cream stock. It is also concerning that she originally denied that she was required to do either prior to the relevant incident, whereas later on, in cross-examination, she conceded that she “did not remember” whether she had completed a planogram change of products or had conducted product replacement prior to the incident. This was in contrast to her original adamant denials and, clearly, to what she had conveyed to Mr Fogg (the expert engineer called by the plaintiff). The plaintiff’s written submissions, repeated orally, sought to explain any difficulties as due to the plaintiff being a person for whom English was not her first language. But I did not detect any real problem the plaintiff had with expressing herself in an understandable way in English. Furthermore, I do not accept that she should “not…be held to the same requirements of accuracy in relation to reporting that might otherwise apply”. She appeared to me to be fully comprehending of what were the material aspects of her case and how she wished to present them in evidence, particularly before she was confronted with explaining them in cross-examination.
- [11]I also found her answers concerning the “change” of shift hours perplexing. She appeared to relate it to some deliberate strategy on the part of the defendant, although it was not explained by her why the defendant would take that as some kind of perverse step, rather than simply making a change which involved a reduction of hours offered to her. This is particularly so where she had previously requested more flexible working arrangements by her letter dated 22 July 2012. Despite that, I do not find that the difference between her evidence and that of Mr Michael Wheeler, a relief store manager as at the date of the incident, to be of adverse significance for her. His evidence concerned the writing of the resignation letter by the plaintiff, dated 26 October 2012, which was typed up by him. Mr Wheeler asserted that the information contained in the letter was directly provided by the plaintiff (namely, that the plaintiff wanted to travel overseas with her husband for an extended period of time). The plaintiff, for her part, stated that she complained about the lack of work available to her and had requested further hours and that the failure by the defendant to grant her those hours, which created conflicts between her work and her ability to care for her children, was the real reason behind her resignation. The plaintiff’s evidence was to the effect that Mr Wheeler had expressed the view that, for long term good relationship purposes of employment, the plaintiff should not agitate that particular matter. Although Mr Hanlon provided evidence that he was approached by the plaintiff who advised him that she (the plaintiff) had resigned as she was going overseas – and in which there was no discussion about any loss of shifts – the conversation, in my view, was fleeting and does not in any way undermine the conclusion that I have reached. I do find it helpful that in the last of the expert medical examinations (by Dr Steadman on 17 September 2014) she stated she resigned because “her hours were being reduced”. In judging the credibility of Mr Wheeler, I have considerable doubts about the accuracy of his recollection if only because of his new found memory concerning the place where the plaintiff had said that she was travelling. In the end, I do not base my decision on the plaintiff’s credibility on those circumstances surrounding the reasons for her resignation.
- [12]Nevertheless, what also concerned me about the plaintiff was her very belated disclosure of her business operations concerning Coco & Co. She only disclosed this, initially, during cross-examination, even though she had a then current Australian Business Number (“ABN”): see Exhibit 19. This is despite the fact that at the beginning of trial the usual certificate under r 226 of the Uniform Civil Procedure Rules 1999 (“UCPR”) was filed on her behalf. While the evidence finally, after many reappearances by the plaintiff, showed that the business was unproductive in financial terms, the concerning aspects in particular for me were not only that documents were first disclosed during the trial but also that it was contrary to the initial evidence she gave to the effect that any interest she had in it in terms of advertising or publicity had dissipated (and was contrary to later evidence demonstrating that she continued her selling efforts right up to the end of 2015 and the beginning of 2016 and that up to “a month ago or two months” before trial there was still an automatic debit to pay for her website through Big Cartel). She had also attended markets in an attempt to generate income for the business, as well as offering product online and via a store on the Gold Coast.
- [13]Accordingly, on such issues as her differences in recollection as against Ms Oats about implementing a planogram or undertaking replenishment of stock, where it is contradicted by the evidence of Ms Oats, I reject the plaintiff’s evidence on such a matter. I am also concerned about whether the plaintiff “would” have followed any instruction or warning that was directed exclusively to planograms (or even to both those and replenishments). My conclusion is that, on balance, it would have made no difference. If it is open to look at other than prior or contemporaneous events, then I am fortified in this by her apparent lack of attention to the instruction and training she had been given, and acknowledged, prior to the second (later) incident which involved opening the door of the other freezer but in which, as “it was stuck”, she “hurt (her) back again”, although not fully examined in evidence. That is, there was no attempt by her to provide an initial force and, if finding it was stuck, seek assistance. The plaintiff simply described it as a “normal” task or duty for which she had been “given instruction and training”. Whether that later incident bears on any legal liability will be discussed later.
Training manuals and written work procedures
- [14]The plaintiff’s evidence was to the effect that she had been supplied with a Learner Handbook (part of the Trial Bundle, Exhibit 3) which related to handling hazards and that one of those hazards was sudden or jerky movements. She had also undertaken step-by-step training when she commenced work with the defendant.
- [15]She further admitted that she undertook an orientation program and training in January 2010 before she started and that she did a further (8 hour) online course (being an iLink course on working safety which covered the lifting and the handling of items). She also acknowledged that there were “activity cards” at the workplace and that such cards made it clear that, even with replenishment of stock, employees were to follow safe handling practices. The Targeted Replenishment card acknowledged by her became Exhibit 13. Though the plaintiff argued that the implementation of a planogram was “not an activity of replenishment”, it is clear from her acknowledgement in further cross-examination on that issue that, although she persisted with that denial, the actual tasks involved were strikingly similar, if not identical – which I find as a relevant fact.
- [16]The Learner Handbook, in dealing with what were described as “General Manual Handling Hazards”, referred specifically to the “manual handling hazard” of “sudden or jerky movements”: at p 12. The identified “awareness” for the employee for that hazard was to note that the “postural (back) muscles are usually slower in their response than other muscles, so sudden or jerky movements can place unexpected strain on your back and lead to injury”. On the same page, under the title “Hazards in the WorkCover Environment”, reference is made to hazards in the work environment including “Climate or Temperature conditions”, stating that when “working in cold temperatures such as a chiller (cool room) and freezer, the risk of injury is increased”. Although that associated entry is not directly applicable to the freezer in question, the introduction made specific reference to such hazards as including “Climate or Temperature” conditions.
- [17]The Targeted Replenishment card (Exhibit 13) stated that the employee should “(a)lways follow manual handling procedures”.
- [18]The evidence of Mr Pickrell showed that he saw no difference between the safety principles in the task for replenishment of stock and for implementing a planogram. Further, Mr Pickrell, when shown Exhibit 13, stated that it was a document which was hung on that part of the wall at the Labrador BP “below the rosters, so probably about 4 or 5 feet from the console area”. In cross-examination, Mr Pickrell, accepting that there was no specific instruction or directions about baskets in the ice cream freezer being stuck with ice, stated that he was aware that they iced up “at the end” where the “doors” stayed open a fraction and that the baskets “could” get stuck “to the edge”, although that had not happened to him.
- [19]As for ensuring compliance with correct procedures, Mr Pickrell stated that, in addition to initial training, the defendant continued to monitor employees via CCTV to ensure compliance with the correct procedures and that additional manual handling training was also provided. As to such CCTV footage, Mr John Hanlon, who was the retail area manager for BP Queensland on the Gold Coast and knew the plaintiff, gave evidence that he would both attend BP sites and review CCTV footage to ensure employees were working safely, such reviews being on a quarterly basis. In addition, he stated that he observed the plaintiff in person doing her work on his sometimes weekly, sometimes fortnightly, visits to the BP Labrador, seeing nothing untoward.
- [20]There was no evidence that the defendant was aware of any prior incidents or complaints of the same, or a similar type, or of injury from icing up. Mr Pickrell, in particular, stated that he was personally unaware, insofar at least as it involved BP Labrador. He also stated that if there was such an incident at another store, there would be a safety alert to “take care because this has happened to a certain person”.
- [21]With respect to work training, instructions and warnings, I accept that the evidence of the defendant’s witnesses truly reflected that which was done – which, in any event, differs little if at all from the plaintiff’s evidence of that which she was informed about. The plaintiff’s differences, both in evidence and argument, were with respect to how specific aspects concerning ice ought to have been highlighted for the “routine” task involved with actually implementing the planogram.
Expert engineering evidence
- [22]On the issue of liability, the only engineering expert called was Mr Robert Fogg. He prepared a report under the title of Total Risk Solutions dated 30 September 2013, revising that slightly by a letter dated 19 September 2016 identifying an error and indicating a substituted paragraph. Mr Fogg’s qualifications as an expert were not challenged. He was a qualified engineer with a Bachelor of Engineering and post-graduate qualifications of a Master of Ergonomics and a Master of Occupational Health and Safety. He was a member of the Safety Institute of Australia and a member of the Human Factors and Ergonomics Society of Australia.
- [23]In cross-examination, Mr Fogg conceded: that he did not inspect the workplace; that his report was solely based on an interview of self-reporting by the plaintiff; that he saw neither photographs of the actual ice cream freezer nor photographs that were obtained and became part of Exhibit 3; and that he did not have any dimensions or measurements of any ice cream freezer.
- [24]Although Mr Fogg stated in his report that there were four factors that contributed to the plaintiff’s injury and that there were three reasonable, practicable and cost effective preventive measures that could have been implemented “which would not have involved excessive expense in either their development or implementation”, he conceded in cross-examination that the factor which increased the risk of injury - given that the bending forward was reasonable “providing the display tray was free and not frozen to the support frame” - was that the employee “was subjected to an unexpected and sudden jolt/stop to her back”. But he also acknowledged that, in particular, ice cream freezers are designed so customers can access the baskets of ice creams to select an ice cream and that the changing of the product around, given the weight and the ergonomics, was a “fairly routine task”. He further conceded that it was plain in everyday life - with one example being an esky with ice and other items in it - that items could become stuck and that “a common sense way” to deal with the issue was to do a visual check of, in this case, the basket, specifically acknowledging that that “would appear to be a reasonable approach. Yes”.
- [25]Mr Fogg’s report purported to identify, in particular, the necessary direction and instruction (to be given to employees) of a safe work procedure for manual tasks that are required to be performed “during works associated with product change over in the low level ice cream display freezer”. In cross-examination, Mr Fogg admitted that he was only given “limited documentation” before preparing the report and that he “primarily” relied upon the plaintiff describing her training to him. In particular, he conceded that the few pages referable to that which he had been given were not in his report. To the extent to which he relied on the plaintiff’s description, he stated that she clearly stated to him “that for this product change over, there was no safe work procedure in place”. Although his report appeared to be focussed on an employee using the planogram (by the constant use of “product change over”), he never explained how it differed, in safety terms, from product replenishment.
- [26]After acknowledging that one of the points made in his report was the necessary avoidance of “sudden jerky movements” and that the solution for that was to “preform all movements smoothly and in a controlled, balanced, comfortable position” with minimal repetitive bending, twisting and overreaching movements (including, in Section 3.4 of his report, a table identifying that “risk” in similar terms to page 12 of the defendant’s Learner Handbook), he agreed that the encountering of ice could result in a jerking movement, going on to state that he “never saw” any training document or any instruction for a solution to any sudden or jerky movements, although he accepted that that was one of the things there should have been training or a direction about. In particular, he agreed that he had not been shown any activity cards or target replenishment cards.
- [27]In re-examination, Mr Fogg stated that if an employee such as the plaintiff had been given training, or instruction, in not doing sudden or jerky movements, “it would have assisted”, adding that “it would have been, perhaps, simpler (for that employee) to provide an initial force to the basket without pulling quickly, and then if finding it was stuck - seek assistance to remove it”.
- [28]Although he had stated in his report that the recommended maximum weight for a female worker was 7 kilograms for the task undertaken and that the “loaded” tray (about which there was no evidence at trial) was estimated by him to be approximately 3 to 4 kilograms, he opined that the level of force “subjected on the back” was “significantly higher” than that base weight. But, in (later permitted) cross-examination, he conceded that it was a “guestimate” about the force involved in the incident, especially without knowing precisely what amount of ice was involved. In further re-examination, he agreed that it is “the preparedness for the resistance which is the critical point”, though he did not change his concession about the lack of knowledge of the forces in play. No specialist medical practitioner was questioned in detail about the forces involved. Both Dr Maniam and Dr Buckley did concede that the incident was “trivial” or “fairly trivial”, whereas Dr Teychenné did not “think” that he would agree that it was “fairly trivial”. Dr Steadman described the “mechanism of the injury” as “fairly minor”. And the plaintiff was “not too sure” how much stock there was in the basket and answered, in examination-in-chief, the question whether she was “expecting a heavy weight” negatively.
Liability (principles and application)
- [29]Although the plaintiff had pleaded a breach of statutory duty, following the filing of a further amended defence by leave on the first day of trial which pleaded s 37A of the Workplace Health and Safety Act 1995 (a provision taking effect on and from 1 July 2010), that basis of liability was abandoned by the plaintiff.
- [30]That left causes of action based on negligence and, or alternatively, breach of contract of employment.
- [31]Since Part 8 of Chapter 5 of Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) was effective as at 1 November 2010, the relevant civil liability of this case is to be determined under that Part. “Duty of care” is relevantly defined by s 305 as meaning “a duty to take reasonable care or to exercise reasonable skill (or both duties)”. As argued, for this case the first of these is applicable. See, also, s 305 for the definition of “duty” as it applies to both causes of action in issue here.
- [32]Because of the way in which this proceeding was conducted, despite the ambit of the particulars in paragraph 3 of the statement of claim (as to duty) and the particulars in paragraph 6 (as to breach), from a survey of the expert evidence led this case concerns primarily a failure to warn and, or alternatively, instruct. As to that, as noted by Dixon CJ in O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 (at 229):
“The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the (employee) by providing proper and adequate means of carrying out (the employee’s) work without unnecessary risk, by warning (the employee) of unusual or unexpected risks, and by instructing (the employee) in the performance of (the employee’s) work where instructions might reasonably be thought to be required to secure (the employee) from danger of injury”.
- [33]As reiterated recently in South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, before such modification as there is of common law principles with respect to duty, breach of duty and causation, the general obligation was one “to ensure safety at work: it is an obligation to take reasonable care to avoid exposing a worker to unnecessary risk of injury” with the “scope of that obligation” to “vary depending upon the nature of the working environment”: at [117] per Basten JA, with whom Macfarlan and Simpson JJA agreed. It provides the background to understanding the statutory provisions.
- [34]Further, apart from any consideration of the statutory overlay to the common law principles, an employer is entitled to expect that an employee will exercise care in carrying out “straightforward” activities: per Macfarlan JA, with whom McColl and Ward JJA agreed, in Vincent v Woolworths Ltd [2016] NSWCA 40 at [49], referring to a passage in Glass, McHugh and Douglas, The Liability of Employers, 2nd ed, The Law book Company Ltd, 1979 at p 23 to the effect that:
Simple uncomplicated operations such as the method of using his tools of trade by a tradesmen could not reasonably require the provision of a system by the employer. Nor will there be much scope for alleging the necessity for a system in the case of casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised.
- [35]Under s 305B(1) the WCRA, a person does not breach a duty to take precautions against risk of injury to a worker unless:
- (a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
- (b)the risk was not insignificant; and
- (c)in the circumstances, a reasonable person in the position of the person would have taken precautions [to which s 305B(2) is relevant].
- [36]As Fox v State of Queensland [2016] QDC 146 points out, each of these elements is to be judged from the viewpoint of the employer, in the circumstances that were known, or ought to have been known, to the employer at the time of the alleged injury: at [71]. The analysis must be undertaken prospectively; not retrospectively with the wisdom of hindsight: also at [71], citing relevant authority including Vairy v Wyong Shire Council (2005) 223 CLR 422.
- [37]As Fox also points out, the identification of the risk of injury is central to the assessment of liability because that informs what the reasonable response to the risk would be: at [72], citing Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at 351 [59]. As further analysed, the risk must be defined by taking into account the particular harm that has materialised and the circumstances in which that harm occurred, with it not being confined to the precise set of circumstances in which the plaintiff was injured: also at [72].
- [38]As indicated by the Victoria Court of Appeal in Erickson v Bagley [2015] VSCA 220, “what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred”: at [33] per Kaye JA, with whom Kyrou JA agreed.
- [39]Using that template here results in the relevant risk of injury being defined as one that a customer service employee could sustain an injury in the course of moving items contained within the freezer, including baskets containing ice cream, by reason of an impediment (including ice) preventing the item, such as a basket, from being moved without such force being required which would place undue stress on the actor involved, where the employee might have to bend at the waist while so doing.
- [40]With respect to the New South Wales analogy of s 305B(1)(a), it was held in Benic v New South Wales [2010] NSWSC 1039 that:
…the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant’s position and the obviousness or the likelihood of the event happening when using common sense: at [92] per Garling J.
- [41]In this case, there is nothing that establishes that the defendant knew of the risk of injury, even though it “knew” of the presence of ice in the freezer and it attaching to the edge, because nothing untoward had ever happened. But ought it to have known? Given the knowledge that Ms Oats had of ice unsurprisingly observed in this freezer to which the public has access from the top for a summer time treat such as an ice cream, although the prospect from time to time of the basket having ice on its supports was itself foreseeable (as acknowledged by Mr Pickrell), addressing that would only require a simple testing of whether the object could be easily moved and, if not, the taking of appropriate steps such as getting assistance or safely removing the impeding ice. Thus, although the presence of ice might be foreseeable in that sense, the “risk of injury to the worker” for this straightforward task has not been proved on the balance of probabilities as one which ought to have been so known, particularly where there was a common sense way of dealing with it (as described by Mr Fogg).
- [42]But if it is necessary to have recourse to s 305B(1)(b) and the determination of whether the risk was “not insignificant”, relevant appellate authority does suggest that this requirement does modify the common law. Any resultant modification is “designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable” and, as such, is a more demanding test for a plaintiff, although “not by very much”: see Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 at [181]-[184]. As remarked in Erikson, the statute has sought to ensure that liability is “not imposed on a defendant too readily”: at [36], citing noted authority.
- [43]Again, there is not to be retrospective reasoning as to the nature of the harm sustained: see the remarks of Gummow ACJ in Tabet v Gett (2010) 240 CLR 537 at 563 [61]. As Fox has noted, although the fact that there was no evidence of previous complaints about, or injuries sustained as a result of, such ice, that does not necessitate a conclusion that the risk of injury is slight: at [85]. But when that fact is considered together with the fact that this implementation of the planogram was a routine task, I conclude that the degree of probability of risk of harm by way of any appreciable personal injury was sufficiently low as to be “insignificant” within the terms of the provision. Because I have not accepted his expert evidence, it is unnecessary to explore Dr Buckley’s opinion that a person (such as the plaintiff) “who already has degenerative disc disease would be at a higher risk of having a rupture as a result of an incident like lifting the ice cream basket”. No cogent examination of the nature of any “higher risk” was undertaken in any event.
- [44]The third limb of s 305B(1) deals with the precautions that would have been taken by a reasonable employer.
- [45]Given that each of these limbs is cumulative, even if that identified risk of injury was foreseeable and even if it was not insignificant, given the nature of the expert evidence in this case, what else would have been required in terms of training, instruction and warning?
- [46]The avoidance of sudden and, or alternatively, jerky movement was something that had been identified from a risk assessment perspective by the defendant as a relevant matter to be considered when “replenishing” items in circumstances where such items included ice creams in ice cream freezers.
- [47]Considering the specific training, instruction and warning given by the defendant to the plaintiff with respect to the replenishing of items (which involved essentially the same tasks of lifting, removing and replacing, even if a slightly more planned way), I find that nothing more was necessary for the defendant to do either in some further “replenishment” risk assessment or in terms of additional training, instruction and warning. This is particularly so where Mr Fogg explicitly, if not implicitly, accepted that the things contained in the Targeted Replenishment Aid document (with its internal reference back to the Learner Handbook) were the very type of things which would constitute the relevant instruction and warning and about which the plaintiff had been trained, being the very thing, amongst others, that he had stated ought to be part of the “workplace risk assessment”: see p 13 of his report.
- [48]Section 305B(2) specifically requires the following considerations (some of which have been already adverted to) in deciding the matters in s 305B(1)(c), being:
- (a)the probability that the injury would occur if care were not taken;
- (b)the likely seriousness of the injury; and
- (c)the burden of taking precautions to avoid the burden of injury.
- (a)
- [49]Thus, if it were necessary to consider what a reasonable person in the position of the defendant would have done, then those particular considerations would have led to doing nothing more than what the defendant in fact did by the training, instruction and warning that it gave, the more so where there were no prior incidents, complaints, or injuries. As earlier observed, the likely seriousness of the injury, on such limited evidence as was led at trial, was not significant. Although the burden of taking precautions in these circumstances was not much, relevant material precautions were taken. And any probability that the injury would occur if care were not taken was low. Where there was no convincing evidence presented by the plaintiff about the level of force imposed on the employee’s spine, it would present a significant problem for the plaintiff because it is relevant to the assessment of whether a reasonable employer should respond to the risk relied on: see McMeekin J in Stitz v Manpower Services & Anor [2011] QSC 268 at [55]. It also goes to the decision – discussed next – whether the taking of the alleged action “would have prevented or minimised the injuries…sustained”: at [56], citing Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11.
- [50]Should it be necessary to turn to s 305C of the WCRA, s 305C(a) deals with the burden of taking precautions. It has been proved that the defendant had designed and put into effect considerable training, instruction and warning. As observed by Heydon JA (as he then was) in Wilkinson v Law Courts Ltd [2001] NSWCA 196, “…if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed”: at [33]. As for s 305C(b), want of care is not demonstrated merely by positing, with the benefit of hindsight, that some measure could have been taken which would have avoided the injury: see Derrick v Cheung [2001] HCA 48 at [13]. Necessarily, such a measure in this case would face the problem addressed below about actual efficacy. And as for s 305C(c), although the subject of some interest afterwards, no other specifically directed system of implementing the planogram procedure was able to be successfully devised by the defendant. And, even if it had, that provision would have neutered its role, especially where there was not any evidence to prove it to have been reasonably practicable at the time of the incident.
- [51]Should the general principles under s 305D of the WCRA concerning causation be applicable, it is noted that s 305E states that, in deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Because s 305D(1)(a) states that the element of factual causation is that “the breach of duty was a necessary condition of the occurrence of that injury” and because, as noted in Stokes v House With No Steps [2016] QSC 79 the High Court has “twice stated” that this means that, in the case of omission, the question of causation in fact is whether the harm “would” have occurred but for the omission (at [128]), the plaintiff is “required to establish some underpinning factual circumstance that either of itself, or by inferential reasoning, enable(s) the court to find that ‘but for’ the negligent omission, the harm…would not have happened”: see Beazley JA in State of NSW v Mikhael [2012] NSWCA 338 at [96]. As earlier observed, on balance, I do not accept that, even if a separate and specific freezer-orientated Activity Card (for instance) were to have been made available, it has been, on balance, proved that it would have prevented or minimised this minor injury being sustained to an ordinary worker or that the plaintiff “would” have effectively followed it [see s 305D(3)(a) of the WCRA]. If s 305D(3)(a) is to be limited to prior or contemporaneous events only, despite the expansive expression “in light of all the relevant circumstances”, I would still conclude that the plaintiff did not prove, on balance, that she “would have” followed any such instruction or warning, particularly if it was in the same terms as the Targeted Replenishment card (or even if it did refer to seeking assistance if any item was found to be stuck while implementing the task, be it a planogram or replenishment task). There would be no issue in this case with the “scope of liability” element being present (if all other aspects are proved).
Quantum
- (A)Background
- [52]As I have already indicated, the plaintiff was 33 years of age on 1 November 2010. She is presently 39 years and 9 months.
- [53]I accept, as set out in the written Outline of Submissions of the defendant, that the plaintiff:
- moved to Australia in 2005;
- had previously worked for the defendant in New South Wales at the BP Service station located at Rosehill;
- moved to the Gold Coast in Queensland in 2009;
- successfully applied for work with the defendant after moving to the Gold Coast;
- sustained injury in the incident on 1 November 2010 at the BP Service Station at Labrador;
- subsequent to her employment with the defendant, completed a diploma in graphic design; and
- only during cross-examination did she reveal the establishment of her design business.
- (B)Medical evidence
- [54]The report of Dr Langley, who is now deceased, is of little utility in this case. His report, dated 11 March 2011, resulted from an examination of the plaintiff on 10 March 2011. As he noted in the report, this was approximately four months after the incident. As he also noted, his examination was undertaken at a stage where it was “too early to assess her permanent impairment”, noting that her condition had “not yet reached a static stage”. He also observed that there was “no evidence of radiculopathy”.
- [55]Dr Vijay Maniman, an orthopaedic surgeon specialising in shoulder and knee arthroscopic surgery, gave a report dated 13 November 2013. He acknowledged, in cross-examination, that he was not aware that the plaintiff had injured her lower back again in another incident in April 2012, even though he had examined her on 16 September 2013 for his opinion. In addition, he did not know that the plaintiff had been certified as being fit for normal duties both after the first incident (much less after the second incident). Lastly, he had not been told that the plaintiff had attended “boot camp” with her personal trainer, Mr Joel Bradford. When asked to assume, as background information, the kind of activities the plaintiff was capable of undertaking during “boot camp”, he stated that there had been a “significant” improvement in her condition on that assumption. I have therefore concluded that his report (which actually comprises two documents of the same date) is of little use in this particular case.
- [56]Dr Paul Teychenné, a neurologist, gave a report dated 17 September 2013. His report, and evidence, concerned me not only because he worked on the assumption that the plaintiff was only on partial duties between the date of the incident and her date of resignation, but also because he referred to the plaintiff as having “significant right lumbo-sacral radiculopathy” in circumstances where I accept the substantial criticism made of that conclusion by Associate Professor Peter Steadman, a consultant orthopaedic surgeon. As Dr Steadman’s evidence given at trial indicated (which I accept, as considered in some detail next), Dr Teychenné “found features in no less than four nerve roots of which, when one considers the MRI, it starts to, sort of, raise some questions about what’s causing that”. This was in circumstances where it was Dr Steadman’s view that neither the MRI nor the CT scan showed features of compression which would account for the compression of four nerves and where, moreover, when Dr Steadman examined the plaintiff, he found no evidence of radiculopathy that would prompt him to consider that the plaintiff was in that category. When questioned further, Dr Steadman opined that radiculopathy “doesn’t go away”, adding that “it just doesn’t quite, clinically and anatomically, all quite add up, particularly where ‘symptoms don’t translate into nerve features’”.
- [57]That analysis of the lack of utility of those three reports leads me to identify those remaining reports that are still determined to be relevantly useful in deciding what is the proper diagnosis and prognosis of the plaintiff. The first is, obviously, Dr Steadman whose report is dated 9 October 2014 and the second is Dr Stephen Buckley, a consultant physician in rehabilitation medicine, whose report is dated 26 October 2013, after an examination on 16 September 2013. In approaching Dr Buckley’s opinions first, it is to be noted that he accepted that the activities undertaken at “boot camp” were indicative of a significant improvement in the plaintiff’s back condition. He further accepted that, if the plaintiff assumed normal duties sometime after her return to work and was requesting further hours of work, both were indicative of a “significant” improvement in her back condition. His evidence, nevertheless, was that, from the CT scan conducted on 4 November 2010, the first incident (namely, on 1 November 2010) was responsible for two ruptured annuli fibroses and that the second incident (namely, on 9 April 2012 – although his report noted it as happening on 12 November 2011) was “probably responsible” for the further extrusion of nucleus pulposis material from one or other of the ruptured discs. He does not appear to have personally seen the MRI results (mentioned next).
- [58]In contrast, Dr Steadman, who not only viewed the CT scan of November 2010 but also the MRI of the lumbar spine of 26 September 2013, was of the view that the mechanism of the injury combined with the radiology “would not be supportive of any work related injury as the ongoing cause of the complaint” as, “notionally, had the injury described not occurred, she would nevertheless be suffering from back pain of degenerative origins”. When that matter was explored with him both in examination-in-chief and in cross-examination, his answers provided a logical and principled approach to an examination of the radiology and as to how the mechanism of the injury occurred. He also gave a convincing explanation of what the “modern” interpretation of what was previously described as a “tear” in the annulus fibrosus is now accepted, stating that it is now generally believed that this is “an overcalling” of the diagnosis, such that it has undergone a change of name to be presently called “a high signal area” because “we don’t necessarily understand what (the term) means”. He explained that the word “tear” in that context is “terribly emotive” because it “sort of implies that there is an injury”. As he then went on to note, “because we see these findings in people who either don’t have an injury or don’t have pain on – on their scans, ultimately, there’s been a move in the last, sort of, two and a half to three years to change that wording from a tear to a high signal area because of this disconnection”.
- [59]Dr Steadman, in explaining his diagnosis and dealing with the extrusion of discal material into the surrounding tissues, stated that the annulus fibrosus is made up of 130 layers “that are all going in different directions slightly and collagen slightly angled in different directions”. He stated that with degeneration each of these layers tear and then, progressively, “that can create a little hole, usually in the post trilateral corner, and then the disc material can extrude out”. As he explained, that is the pathophysiology of the process such that the inflammation to the surrounding tissue sometimes involves aggravation of the nerve roots causing pain or other neurological impairment or radiculopathy. When pressed, in cross-examination, with the absence of symptomatology prior to the incident and its presence immediately after it, he accepted that she could have suffered some injury at the time but that the difficulty was in determining for how long. His final conclusion was that, even though examinations by individual medical practitioners might show that patients can have different degrees of pain on different days, he did not accept that the severity of the mechanism of the injury was substantial enough to alter the course of the disease when the diagnosis was that of degeneration, accepting that the plaintiff hurt herself at work, had an injury but that then, eventually, with time, the significance of that injury, assessed against the underlying problem and by reference to clinical practice and similar scans, meant that the better understanding was that her present pain resulted from the degenerative disorder and that, therefore, her condition would be assessed as DRE Lumbar Category 1 with 0% whole person impairment based upon AMA5 Chapter 15, Table 15-3. I also find that the personal observations of the personal trainer, Mr Bradford, conform to the opinions expressed by Dr Steadman as to real limitations on the plaintiff’s capacity after the “significant” improvements he had seen as a result of those exercises that she could now do such that she “keeps up with – with a lot of the top group there”, though there are “some exercises that she can’t” do.
- (C)General damages
- [60]This assessment is governed by the WCRA and the Worker’s Compensation and Rehabilitation Regulation 2003 (“WCRR”). As defined in s 306 of the WCRA, “general damages” means damages for all or any of pain and suffering and loss of amenities of life.
- [61]Section 306O of the WCRA states that, if general damages are to be awarded, the court must assess an injury scale value (“ISV”) in the way designated. In particular, the court must consider the range of ISVs stated in Schedule 9 of the WCRR for the injury, noting s 2 in Schedule, 8 Part 2, Division 1 of the WCRR. Schedule 9 itself contains different categories and corresponding ISV scales, while s 8 in Schedule 8, Part 2, Division 2 states that the court must have regard to the provisions of the relevant item when assessing an ISV.
- [62]I accept the defendant’s submission that the plaintiff’s injury falls to be assessed, pursuant to Schedule 9, under Item 93 as a “minor…lumbar spine injury.” So, having regard to the provisions contained within Item 93, the ISV is 2. This corresponds to $2,360.00.
- [63]Section 306N(1) of the WCRA states that a court cannot order the payment of interest on an award for general damages.
- (D)Loss of earnings (past economic loss)
- [64]In s 306 of the WCRA, the definition of “loss of earnings” states that, for past economic loss, it means “loss due to loss of earnings or the deprivation or impairment of earning capacity”.
- [65]It is not in dispute that, as at the date of the incident, the plaintiff’s average weekly earnings were approximately $550.00 nett per week.
- [66]The plaintiff was off work for the two weeks for which she was certified unfit for duties (namely, from 2 November 2010 to 14 November 2010), being, then, medically certified as being fit for work on suitable duties from 15 November 2010 to 18 May 2011, returning to her normal duties at work from 19 May 2011, after relevant medical certification.
- [67]The plaintiff had reported to her GP that she felt fit to resume normal duties at work. Additionally, neither Mr Pickrell nor Mr Hanlon was of the view that the plaintiff was not capable of undertaking her normal duties required of the role after being so certified.
- [68]It is also not in dispute that the plaintiff’s suffering of a subsequent injury to her lower back on 9 April 2012 resulted in her being medically certified as being fit to resume her normal duties only on and from 9 May 2012.
- [69]The medical records of the plaintiff’s GP do not indicate any further attendances regarding any lower back injury and, with respect to subsequent absences from work, they were stated to be for reasons unrelated to any lower back injury.
- [70]In terms of the plaintiff’s capacity to undertake work, she did in fact complain about the lack of work being made available to her and requested additional shifts.
- [71]There is nothing in the evidence led at trial which showed that for the 2011–2012 financial year the plaintiff suffered any calculable loss of income.
- [72]I have already accepted that the plaintiff’s business under the name of Coco & Co generated no income for her.
- [73]As already adverted to, I find that the reasons given by the plaintiff for the termination of her employment were for reasons which were not related to any lower back injury. This is reinforced by the following evidence:
- on 7 July 2011, Dr Gregory Day, an orthopaedic surgeon, re-examined the plaintiff and reported that she had returned to work full-time with approximately 30 hours per week of work and that she had asked her employer, since she had two children aged 3 and 8 at home, to work part-time for the next few months so that she could spend more time with her children (which, although it seemed to be disputed by the plaintiff, conforms with the evidence that I have accepted generally concerning the plaintiff);
- in her own evidence, the plaintiff complained that her reduced hours were such that she was unable to maintain a proper income in the time immediately before her resignation;
- according to the plaintiff, prior to that resignation, she had asked her employer to keep her position open for her; and
- while I have accepted that the plaintiff’s typewritten letter of resignation was in terms which were suggested by a representative of the defendant, and accepted by her, the reasons for the resignation were not to do with any injury which precluded her from working.
- [74]Bearing that background in mind, considering that when the plaintiff returned to work with the defendant she was paid as if she was performing full duties, her past economic loss is limited to that two week period when she was absent from work. That loss, as appropriately calculated, yields a net amount of $1,100.00 for the two week period from 2 November 2010 to 14 November 2010. Interest pursuant to s 306N(2) of the WCRA would accrue, as would past superannuation benefits lost. While I was assisted with the latter, no specific interest rate was advanced in accordance with the statutory formula.
- [75]There is no basis to determine that the plaintiff has been deprived of or had impaired her earning capacity in light of the medical evidence that I have accepted and the factual matters concerning her return to work and her reasons for resignation: see Medlin v State Government Insurance Commission (1995) 182 CLR 1, as considered, in the statutory context, by Gratrax Pty Ltd v TD & C Pty Ltd [2013] QCA 385 at [23]-[26].
- [76]It should be emphasised that the issues in this case do not involve determining whether the defendant’s attitude to offering the kinds of shifts it did to the plaintiff after her return for work generates a sustainable claim for deprivation or impairment of earning capacity.
- (E)Future economic loss
- [77]In s 306 of the WCRA “loss of earnings” is defined, with respect to future economic loss, to mean “loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity”.
- [78]With respect to this, s 306J of the WCRA applies when earnings cannot be precisely calculated “by reference to a defined weekly loss”: see s 306J(1).
- [79]In turn, as s 306J(2) of the WCRA states, the court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and other relevant matters.
- [80]I accept the defendant’s written submissions that the onus cast on the plaintiff has not been discharged in satisfying the court to the relevant standard that any absences from undertaking, or inability to obtain, work after her resignation are actually related to the injury that I have found to have occurred based on my acceptance of the evidence of Dr Steadman.
- [81]Given those conclusions that I have reached about the medical evidence and the relevant facts concerning the plaintiff’s resignation from work, there was just no basis on which this court can be satisfied that, with respect to the future, any amount of loss of prospective earnings cannot be causally related to the injury that I have determined has occurred. And there is no deprivation or impairment of prospective earning capacity on the findings that I have made.
- [82]Accordingly, there is no future economic loss.
- (F)Special damages
- [83]The parties have agreed that medical, rehabilitation and travel expenses paid by WorkCover Queensland would be recoverable in the sum of $6,429.97 and the self-incurred expenses are $700.00.
- [84]The total of those sums is $7,129.97.
- [85]Although the plaintiff seeks payments for gym fees and personal training fees, on the conclusions that I have reached, no sums should be awarded for those matters as they would be incurred by any person of the plaintiff’s age and physical condition who wished to be fit, especially where the gym costs were directed, in relevant advice, to undertake swimming in a heated pool (of which activity there was no evidence).
- (G)Future expenses
- [86]On the finding that I have made concerning the medical evidence, there is no basis for the plaintiff to incur any costs for future surgery, if any (because any surgery would not be causally related to the incident). The same applies to any program of exercises that she had undertaken whether through any gym, or through personal training, or by any other means.
- (H)Summary of damages
- [87]On the basis of the findings that I have made on quantum, the following schedule is applicable:
Head of damages | Amount |
| $2,360.00 |
| $1,100.00 |
| $99.00 |
| $7,129.97 |
Total (before statutory interest) | $10,688.97 |
Summary of proceeding
- [88]For the reasons outlined in these reasons, there will be judgment for the defendant against the plaintiff.
- [89]As for costs, I will give leave to both parties to file, serve written submissions, if any, on costs by 4.00pm on a date seven days after the delivery of judgement.