Berhane v Woolworths Ltd

Case [2017] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION:

Berhane v Woolworths Ltd [2017] QCA 166

PARTIES:

BERHANE GHEBREIGZIABIHER BERHANE
(appellant)
v
WOOLWORTHS LIMITED
ABN 88 000 014 675
(respondent)

FILE NO/S:

Appeal No 6979 of 2016
DC No 4729 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


District Court at Brisbane – [2016] QDC 142

DELIVERED ON:

8 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2017

JUDGES:

Gotterson and Morrison JJA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal.

2.   Dismiss the cross-appeal.

3.   Enter judgment for the plaintiff against the defendant in the sum of $231,211.45.

4.   Order the respondent to pay the appellant’s costs of the appeal on the standard basis.

5.   The respondent is to pay the appellant’s costs of the proceedings at first instance, to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – where the appellant was employed by the respondent as an order selector in a large warehouse – where the appellant’s employment required him to lift and stack heavy cartons more than 1,000 times per day – where the appellant had a pre-existing degenerative condition in his shoulder when he commenced work – where the strain caused by lifting the cartons aggravated that condition and caused a further injury – where the trial judge dismissed the appellant’s claim on the grounds that there was no breach of duty or causation – where the system of work involved lifting weights in excess of the recommendations of the relevant work safety guides – where a work success rating system encouraged selectors to work harder and faster – where casual employees were frequently sent home if their rating was less than the other employees – where expert evidence called at the trial supported that the workplace activities aggravated and accelerated onset of the injury – where a significant portion of the general population have the same degenerative condition – whether the respondent’s duty was breached – whether the risk of injury to the appellant was foreseeable – whether a breach of duty caused the appellant’s injury

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the respondent challenged the trial judge’s assessment of quantum – where the respondent submitted that the pre-existing condition was responsible for the appellant’s loss of working capacity – where the respondent challenged the trial judge’s classification of the injury using Schedule 9 to the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld), submitting that item 97 applied, not item 96 – where the respondent contended that economic loss should have been assessed on the basis that it was improbable that the appellant would work beyond September 2012 and other medical problems would have prevented the appellant from continuing to work – where the trial judge made mixed findings as to the appellant’s credibility as a witness…

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Berhane v Woolworths Ltd [2017] QCA 166
Case
[2017] QCA 166
Decision Date

CaseChat Overview and Summary

In Berhane v Woolworths Ltd, the appellant, Mr Berhane, sought compensation from Woolworths for injuries sustained while working as an order selector. Mr Berhane had a pre-existing degenerative condition in his shoulder, which worsened due to the repetitive lifting and stacking of heavy cartons as part of his job. The court had to determine whether Woolworths breached its duty of care, whether the risk of injury was foreseeable, and whether the breach caused Mr Berhane's injury. Additionally, the court had to assess the quantum of damages awarded by the trial judge.

The primary legal issue was whether Woolworths owed a duty of care to Mr Berhane and whether the workplace conditions contributed to his injury. The court examined the evidence regarding the nature of the work, the physical demands placed on Mr Berhane, and the system of work which encouraged higher productivity. The court also considered expert evidence that the workplace activities aggravated and accelerated the onset of Mr Berhane’s injury. Another issue was the trial judge's assessment of damages, particularly the quantum of damages awarded for general damages, special damages, and future economic loss.

The court found that Woolworths did breach its duty of care by subjecting Mr Berhane to a work environment that involved lifting weights in excess of recommended safety guidelines. The court held that the risk of injury was foreseeable and that the breach directly caused Mr Berhane's injury. Regarding the quantum of damages, the court dismissed Woolworths’ arguments that the assessment of damages should have been limited based on Mr Berhane's pre-existing condition and other medical issues. The court upheld the trial judge's assessment of damages, which totalled $231,211.45.

The court allowed the appeal, dismissed Woolworths' cross-appeal, and ordered Woolworths to pay Mr Berhane the full amount of damages awarded by the trial judge. The court also ordered Woolworths to pay Mr Berhane’s costs of the appeal and the proceedings at first instance.

Orders

Orders of the court

1. Allow the appeal.

2. Dismiss the cross-appeal.

3. Enter judgment for the plaintiff against the defendant in the sum of $231,211.45.

4. Order the respondent to pay the appellant’s costs of the appeal on the standard basis.

5. The respondent is to pay the appellant’s costs of the proceedings at first instance, to be assessed on the standard basis.

Background

Background to the litigation

Woolworths cross-appeals on the quantum of damages assessed by the learned trial judge, the various heads of which totalled $231,211.45.Background The background to the case was set out by the learned trial judge in a way that can be adapted for present purposes.[4][4]Reasons [4] – [41]. Mr Berhane started working for the defendant in August 2010 as an order selector. Mr Berhane complained of his shoulder injury on 22 June 2011. It was agreed that he suffered subacromial bursitis and impingement of the left shoulder. It was not contested that the work tasks contributed to the development of that condition.[5][5]As it was put in Reasons [8] and [43], there is no contest that Mr Berhane was injured as a result of his work activities, and the injury was a shoulder injury. For the purposes of his employment with Woolworths, Mr Berhane was examined on 17 August 2010 by a physiotherapist who conducted a ‘Standard Musculoskeletal Assessment and Step Test’. The report, in effect, ticked all of the boxes relating to his musculoskeletal condition and gave him an ‘average’ assessment for the cardiovascular screening, declaring him suitable for the role of order selector. Mr Berhane worked at Woolworth’s distribution centre at Larapinta. The two areas were the main chiller area (or temperature control department), and the produce area. There were three areas in the temperature control department of the distribution centre at Larapinta. One was “temperature control selections”. In this area employees worked shifts up to eight hours during which they had one 10 minute break and one 30 minute break. If the shift was up to ten hours, the employee would have two 10 minute breaks and a 30 minute break. The produce area stocked mostly vegetables and fruit in crates and was predominately heavier lifting. Order selection required standing/walking, repetitive squatting, repetitive forward, upward and downward reaching, repetitive gripping and occasional twisting of the spine to reverse the machine. Mr Berhane operated a machine called an electronic pallet jack. It held two pallets on its tines. He was required to pick stock from shelves and place it onto the pallets. He took instructions through a headset. A programmed voice told him where to take the machine and how many cartons or crates of the various produce to stack onto the pallets. When the order was complete, the order selector was required to drive the machine to a despatch area where he was to set the pallets off the tines onto the floor of the warehouse and wrap the completed orders in plastic. Mr Berhane was one of about 10 to 15 order assemblers in the temperature controlled section. The temperature in the produce section was 5oC and in the chilled products section, 0.7oC. The workers’ clothing was multilayered and included gloves and a cap. The pallets were each about 1.165 metres square. The height of the stacks from which the selector picked was generally less than 1.5 metres. The pallets stacked by the selector would be up to 1.8 metres, for ease of operation with a forklift.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Thirdly, for the reasons given above it was not necessary, in order to succeed in proving the relevant duty, to show that Mr Berhane fell into a special disability category.Conclusion on liability For the reasons given above the issue of liability should have been determined in favour of Mr Berhane.The cross-appeal on quantum The learned trial judge assessed quantum under separate heads of damage, as follows:[88][88]Reasons [128]. Senior counsel for Woolworths advanced a number of points challenging the assessment of quantum. They include:(a)damages should have been limited to 30 September 2012, on the basis that the opinion of Dr Davies was that by that stage Mr Berhane’s pre-existing degenerative condition was responsible for his symptoms and any loss of work capacity;(b)the shoulder injury should have been classified as falling into item 97 of Schedule 9 to the Workers’ Compensation and Rehabilitation Regulation 2003,[89] rather than item 96; item 97 relates to a “soft tissue injury with considerable pain from which the injured worker makes an almost full recovery in less than 18 months”; the consequence is that general damages should have been assessed at $4,720 rather than $12,950;(c)in respect of past economic loss, the claim should have been limited to 30 September 2012 because of the opinion of Dr Davies; (d)further, various medical issues sustained by Mr Berhane[90] meant that it was improbable that Mr Berhane would have worked over the period to 30 September 2012; those problems mean he would not have worked after 30 September 2012, even if he had not suffered the problem with his shoulder; therefore the trial judge’s approach in taking potential earnings to trial and reducing them by one third was not open; instead, the appropriate assessment of past economic loss was no more than the nett statutory benefits of $31,200.94;(e)no allowance should have been made for future economic loss, on the basis that Mr Berhane’s other medical problems would have prevented him from working; and(f)the consequence of those submissions being accepted meant that the total sum for damages was $11,304.88.[89]This refers to Reprint 4, applicable as at 22 June 2011.[90]Including neck pain, back ache and an ankle fracture.General challenge The contention advanced was that the adverse findings against Mr Berhane’s credit, including what might be discerned from a covert video which was tendered in evidence, meant that no significant award of damages should be made. In this respect, reliance was placed on what was said by McPherson JA in Collings & Anor v Amaroo (Qld) Pty Ltd & Anor:[91]“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leads the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth.”[91]Collings & Anor v Amaroo (Qld) Pty Ltd & Anor [1997] QCA 224, 7.

Ratio Decidendi

Legal Principle Established

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