Dank v Tabcorp Holdings Limited

[2011] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION:

Dank  v Tabcorp Holdings Limited [2011] QDC 2

PARTIES:

KATHRYN JANE DANK
(plaintiff)

v

TABCORP HOLDINGS LIMITED ACN 063 780 709
(defendant)

FILE NO:

D410/08

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

1 February 2011

DELIVERED AT:

Southport

HEARING DATES:

18, 19 August, 6 December 2010

JUDGE:

C F Wall QC

ORDER:

Judgment for the plaintiff for $239,613.62 plus costs

LEGISLATION:

Workplace Health & Safety Act 1995

CASES:

Bourke v Power Save Pty Ltd & Anor [2008] QCA 225 Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] 2 Qd R 83.

CATCHWORDS:

Master and servant - personal injuries - twisting lift from the floor in confined circumstances - damages

COUNSEL:

Mr K S Howe for the plaintiff

Mr R A  Myers for the defendant

SOLICITORS:

McCowans Solicitors for the plaintiff

MVM Legal for the defendant

LIABILITY

1. The plaintiff was injured at work when she lifted a box of photocopy paper from the floor in her office.  The accident happened on Friday 8 October 2004.  The plaintiff was employed by the defendant as a secretary where she was highly regarded[1].  I accept the plaintiff’s account in evidence as to how she was injured and how she was lifting the box.  It was an awkward lift.  She was as close as she could get to the box[2].  She had to lean forward and over the box.  She bent forward and down at an angle, picked up the box from the floor, turned as she lifted it to put it on her desk to the left as she was straightening up and “felt a twang in her back”[3].  She was about half way or a bit more up when she felt the pain about two thirds of the way to the top of her desk[4].  The lift is shown in photos 2 and 3 of ex 1.  She had to reach forward and down to pick up the box.  The box weighed about 12.7 kg. It contained 5 reams of photocopying paper.  She was intending to unpack the box once she had placed it on her desk and store the reams in the cupboard under the photocopier[5].  In simple terms it was a twisting lift with the box held at an angle and in this way it exposed the plaintiff to a foreseeable risk of injury.  She found the lift “very, very hard” because she couldn’t pick the box up easily.  She approached it at an angle[6].  She had received no instructions or directions as to how to lift the box or how not to lift it from the floor.  She received no training in respect of lifting or lifting techniques, or the storage of the boxes[7].  She was not instructed not to lift the box as she did.  That she could have moved the box away from the wall and then lifted it in a different way[8] is no answer to the fact that she was not instructed how not to lift boxes such…