Filiposka v Coles Supermarkets Australia Pty Ltd

[2020] NSWDC 540

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Filiposka v Coles Supermarkets Australia Pty Ltd [2020] NSWDC 540

Hearing dates:

13, 14 & 15 July 2020

Date of orders:

18 September 2020

Decision date:

18 September 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $828,554.60;

2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – work injury damages – supermarket employee sustained back injury whilst lifting a crate of chicken carcasses – negligence established – contributory negligence not established; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW), s 58(2)

Evidence Act 1995 (NSW), s 60

Uniform Civil Procedure Rules 2005, r 31.27(1); Sch 7 cl 5

Workers Compensation Act 1987 (NSW), s 151D, L & Z

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Arnott v Choy [2010] NSWCA 259

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20

Brogan v Geary (1995) Aust Torts Reps 81-342

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3

Mahony v Watson [2003] NSWCA 259

Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62

Warda v Specialty Fashion Group Ltd [2018] NSWDC 218

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Category:

Principal judgment

Parties:

Sonja Filiposka (Plaintiff)
Coles Supermarkets Australia P/L (Defendant)

Representation:

Counsel:
Ms E Welsh (Plaintiff)
Mr D Kelly (Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2019/368658

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2] – [5]
Procedural matters	[6] – [16]
Leave to proceed	[7] – [9]
Rejected application to amend defence	[10] – [16]
Evidence overview	[17]
Issues for determination	[18]
Credibility and reliability of testimony	[19]
The opinions of the liability experts	[20] – [31]
Report of Mr Adams tendered by plaintiff	[21] – [25]
Report of Ms Hall tendered by defendant	[26] – [30]
Conclusions concerning the expert reports	[31]
Issue 1 – Findings on relevant factual matters	[32] – [70]
(1) Plaintiff’s background, health and employment	[33] – [39]
(2) Review of defendant’s safety documents	[40] – [49]
(3) Previous injury incurred by plaintiff	[50]
(4) Accident circumstances	[51] – [58]
(5) Injuries	[59]
(6) Initial treatment	[60]
(7) Medical and allied treatment and reviews	[61]
(8) Disabilities that remain	[62] – [63]
(9) Work effects	[64]
(10) Mitigation	[65] – [69]
Issue 2 – Relevant risk of harm	[71] – [73]
Issue 3 – The duty of care and its non-delegable scope	[74] – [76]
Issue 4 – Alleged negligence and causation of harm	[77] – [99]
Particulars of negligence as pleaded by plaintiff	[82] – [83]
Foreseeability	[84] – [88]
Precautions a reasonable employer ought to have taken	[89] – [94]
Breach of duty	[95] – [97]
Causation	[98] – [99]
Issue 5 – Alleged contributory negligence	[100] – [104]
Issue 6 – Assessment of damages	[105] – [115]
Past economic loss	[106] – [108]
Superannuation on past economic loss	[109]
Future economic loss	[110] – [112]
Superannuation on future economic loss	[113]
Fox v Wood	[114]
Summary of damages assessment	[115]
Disposition	[116]
Costs	[117]
Orders	[118]

Nature of case

1. The plaintiff Mrs Sonja Filiposka brings these work injury damages proceedings claiming negligence against her employer, the defendant, Coles Supermarkets Australia Pty Ltd, in respect of a back injury she sustained in an awkward lifting incident whilst working as the manager in the delicatessen section of the defendant’s supermarket at Brighton-le-Sands. In its defence, the defendant denies it was negligent, and in the alternative, it claims there was contributory negligence on the part of the plaintiff that led to her injury. The proceedings are governed by the provisions of the Workers Compensation Act 1987 (NSW) (“WC Act”) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Factual background

2. Shortly after 6.00am on Wednesday 31 December 2014, the plaintiff was carrying out her early morning pre-opening work duties as the manager of the delicatessen section of the defendant’s supermarket. This required that she enter into the relatively confined space of a cool room which was crowded with stored food. She had to lift and move crates of chicken carcasses. She was required to do so without assistance in order to commence preparing the chicken carcasses for baking in readiness for sale to customers later that day.

3. Before the plaintiff’s work shift commenced on that day, two crates of chicken carcasses had been delivered to the premises and placed on the low metal shelf of a cool room cage that was on wheels. That shelf was a few centimetres above floor level. At the time the cool room was crowded with other stored goods which necessarily limited manoeuvrability of the cages and the contents of those cages in the cool room.

4. To carry out her assigned task in a practical way, the plaintiff found that she had to stand in front of the cage in question, lean forward, lift each crate, and then in a twisting or turning movement, whilst holding and bearing the weight of each loaded crate, place them onto a small nearby mobile trolley table to transport the goods to another location. The laden weights of the crates varied from 10kg to 14.4kg.

5. The plaintiff found that she was able to lift the first crate of chicken carcasses from the cage shelf without difficulty. In the course of leaning forward to grip, manipulate, lift and move the second such crate in a twisting movement, she sustained a painful lumbar disc lesion. That injury later required surgical treatment. The effects of that injury have prevented her from returning to her former work duties, or to any other work.

Procedural matters

6. Two procedural matters required attention in this case, the first being the plaintiff’s application for leave to proceed pursuant to s 151D of the WC Act, a question that was reserved to be determined at the hearing, and the second being the defendant’s mid-trial application to amend its defence to seek to plead an alleged failure to mitigate on the plaintiff’s part.

Leave to proceed

7. The plaintiff needed to seek leave to maintain these proceedings because the proceedings had been filed outside the required 3 year limitation period: s 151D of the WC Act. The need for her to do so arose because inevitable pre-litigation delay had occurred due to the time that had been taken up for her claim for workers’ compensation entitlements to proceed to conclusion through the preliminary stages of the required regulatory labyrinth.

8. In the months leading up to the hearing the defendant maintained a steadfast resistance to the plaintiff’s application for leave pursuant to s 151D of the WC Act. However, on the morning of the hearing, the defendant took a different position, indicating that it neither consented nor opposed a grant of the leave sought.

9. In those circumstances, where the plaintiff produced satisfactory and uncontested evidence justifying the grant of leave, where there was no suggestion that a fair trial could not be had by the defendant, leave was granted nunc pro tunc, effective from 22 November 2019, which was the date on which the plaintiff’s statement of claim was filed.

Rejected application to amend defence

10. During the course of the cross-examination of the plaintiff the defendant made an application to amend its defence by which it sought to plead a hitherto unspecified allegation of an alleged failure on the part of the plaintiff to mitigate her damages, so as to seek a reduction in her entitlement to damages: s 151L of the WC Act.

11. Following argument, for reasons that were made plainly apparent to the parties from the content of exchanges which took place during the course of argument on that issue, that application was dismissed. At the time, in the interest of ensuring the appropriate use of Court time, the parties were informed that my reasons for such dismissal would be included in this judgment. Those reasons now follow.

12. In my view, in considering the dictates of justice in this case, the appropriate order to be made in relation to the defendant’s late application to amend its defence to plead and particularise a claim that the plaintiff unreasonably failed to mitigate her losses, was that the application be dismissed: s 58(2) of the Civil Procedure Act 2005 (NSW): Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. To permit the amendment sought at this late stage of the proceedings would have created an irremediable prejudice to the plaintiff.

13. The plaintiff bore the onus of showing that she had taken reasonable steps to mitigate her damages: s 151Z of the WC Act. The evidence prepared on her behalf satisfied that onus.

14. There was no reasonable basis from within the evidence served by the defendant to support an allegation of failure to mitigate. Both parties had prepared for the trial without requiring a mitigation issue to be litigated. Consequently, no specific evidence had been directed to that question.

15. To allow an amendment of the kind sought would have necessitated an adjournment for the plaintiff to be able to meet that claim by calling medical evidence in response. That would have involved an unreasonable delay to the plaintiff concluding these proceedings where there had been no relevant procedural shortcoming or default on her part. An order for costs would not have remedied that prejudice or adequately compensate for the attendant delay which would inevitably follow, particularly in the context of a restricted costs regime.

16. On the state of the medical evidence served, the defendant’s claimed failure to mitigate argument was speculative. It was not based on a firmly grounded opinion that complied with the requirements of UCPR r 31.27(1); Sch 7 cl 5. It would have been procedurally unfair to allow such an amendment in the circumstances. For those reasons, the application was rejected.

Evidence overview

17. The plaintiff was the only witness to give oral evidence. There were no substantive challenges to the credibility or the reliability of her evidence. The plaintiff relied upon a densely written report of Mr Neil Adams, a safety management and ergonomic consultant: Exhibit “D”. Mr Adams was not required for cross-examination on the content of his report. The defendant relied upon a compendious 135 page liability report dated 2 September 2019 from Ms Deborah Hall, an occupational health and safety consultant employed by Unisearch: Exhibit “7”. That report included a critical analysis of the opinions of Mr Adams. The parties also tendered bundles of medical reports and other documentary exhibits. I will make reference to those documents where it becomes relevant to do so.

Issues for determination

18. Apart from matters of credibility and reliability of testimony, on my consideration of the pleadings, the evidence and the submissions of the parties, the substantive issues that underpin those pivotal issues are identified to be as follows:

1. Identification of findings on relevant matters of fact. My findings on those matters appear in paragraphs [32] to [69] of these reasons;

2. Identification of the duty of care owed by the defendant, including the relevant risk of harm, and the scope and content of that duty. My findings on those matters appear in paragraphs [71] to [73] of these reasons;

3. Whether the defendant should be found to have been negligent on account of a relevant breach of the duty of care owed, and whether such breach caused the plaintiff to suffer the harm she claims. My findings on those matters appear in paragraphs [74] to [97] of these reasons;

4. Whether there was contributory negligence on the plaintiff’s part, and if so, the extent to which such alleged contributory negligence should be assessed. My findings on those matters appear in paragraphs [100] to [104] of these reasons;

5. The assessment of the plaintiff’s economic damages. My findings on those matters appear in paragraphs [105] to [115] of these reasons.

Credibility and reliability of testimony

19. I found the plaintiff to be a credible and reliable witness whose evidence was capable of acceptance on all matters in dispute between the parties. The defendant called no evidence that had the effect of calling into question the credibility or the reliability of the plaintiff’s evidence on any matter of significance in dispute between the parties.

The opinions of the liability experts

20. I am required to engage with the opinions of the respective liability experts who provided reports containing differing opinions. Neither of those experts were required for cross-examination to test any matters of controversy that arose from within the opinions they had expressed in their respective reports.

Report of Mr Adams tendered by plaintiff

21. The report of Mr Adams contains a number of non-disputed photographs of the defendant’s cool room, the type of storage cage the plaintiff was required to use, the nearby metal trolley table, and sample crates of chicken carcasses.

22. Mr Adam’s ergonomic evaluation indicated that, in his opinion, foreseeably, the work system in which the plaintiff had been engaged, did not meet all of the criteria for ideal or safe lifting, and therefore it could easily have involved an unacceptably high level of risk of musculo-skeletal injury associated with the range and the weights of the items to be lifted, including having regard to the pace at which the work needed to be undertaken without assistance.

23. In expressing such views, Mr Adams referred to a range of occupational health and safety provisions in various elements of advisory legislation. Mr Adams also prospectively identified a range of preventative measures that, if implemented, represented appropriate risk avoidance strategies.

24. Amongst those measures identified by Mr Adams (at pp 17 – 18 of his report), he was of the opinion that the cool room could have been modified to accommodate the need to manipulate awkward and heavy trays of chicken carcasses so that deep bending and twisting movements could have been avoided in the course of the plaintiff’s work.

25. The manual handling activities that Mr Adams considered to have been a means of avoiding injury from lifting with twisting, dragging weighty crates at a safer height, suitable training and the provision of sufficient staff to appropriately manage the component of the workload that comprised manual handling tasks in the time allotted to the plaintiff, and including the adoption of a safe posture.

Report of Ms Hall tendered by defendant

26. Of the 135 pages of Ms Hall’s material, her actual report comprised 45 pages. The balance of her materials comprised 90 pages of annexures. Although she referred to a letter from the defendant’s solicitor containing her instructions (at page 6 of her report), that letter was not included either in her report or as an annexure to it. Nor was it separately tendered.

27. It appears that the defendant’s solicitor had simply briefed Ms Hall with a copy of a pre-filing statement dated 5 July 2019 and some unidentified attachments, a s 78 notice, and a copy of the 16 May 2019 liability report of Mr Adams.

28. Ms Hall assumed the plaintiff had received ongoing training and coaching, which included a manual handling program and training in the formalised and documented SafeWork Practices of the Supermarket: Exhibit “7”, p 1. The basis of those assumptions was tenuous.

29. The executive summary of Ms Hall’s report included the following statements:

1. Coles Supermarkets (the Company) had a well developed workplace health and safety system in place as a Self Insurer under Workers Compensation in NSW. The implementation of their health and safety system is managed on a store by store basis by the Store Manager and is periodically audited by external auditors. Store Managers are trained and instructed in the implementation of their health and safety systems.

2. From instructions provided for this report, the Plaintiff alleges that the Company failed to train her in relation to safe lifting techniques, take adequate precautions for her safety, provide a proper and safe system of work, provide adequate physical or mechanical assistance, undertake risk assessments, and ensure the health safety and welfare of the plaintiff.

3. The author has been provided with documentation which demonstrates evidence that the company had implemented a safe system of work and provided safe work procedures, training and management coaching to the Plaintiff, and mechanical handling equipment in the form of trolleys, crates and roll cages on wheels. The plaintiff as Deli Manager was responsible for rostering and allocating staff in the Deli and had control over this assistance.

4. The author has attended the cool room at the delicatessen section of Coles Supermarket, Brighton Le Sands, NSW with Coles Management and Barker and Henley lawyers (sic) and inspected the crates, coolroom (sic), trolleys, roll cages, shelves and racks, floor and chicken bags. During this inspection on 20 August 2019 I have taken measurements and photographs, and recorded weights using a calibrated balance, as identified within this report.

5. In December 2014 the Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulation 2011 (NSW) had been established for three years. These required that an employer take reasonably practicable precautions to ensure the health and safety of employees in the workplace.

6. As the employer of the Plaintiff, Coles had addressed work health and safety through the implementation of a tailored work health and safety management system for their supermarkets. Tasks and duties in the delicatessen had been assessed for risk, and several control measures had been developed and implemented, including management coaching for all managers.

7. The duty of care which a company owes to their workers includes, but is not limited to, activities such as consultation with employees, assessment and management of risks, provision of first aid, management of the work environment, training and induction, supervision, and the provision of safe plant and equipment. The standard which is required is one of achieving what is “reasonably practicable”, which the employer had met in this instance.

8. Legislation also requires that employees cooperate with their employer in the efforts which have been made to ensure their health and safety at work. This includes using correct and safe manual handling techniques which they have been trained in and using risk control measures which have been implemented to eliminate or minimize any risk of injury associated with their work, work activities and workplace.

9. The Plaintiff had been trained in the Safe Work Practices, and in safe lifting techniques, and was the Manager of the deli. She was responsible for rostering staff as she needed and identified.

10. This report is written on request from the Company’s lawyer Barker Henley and provides an opinion for the Court regarding the safe system of work, training, safe work practices, mechanical handling equipment, and ergonomics which the company had implemented. It also provides comment on the expert report of Mr Neil D. Adams dated 16 May 2019.

1. The Company’s health and safety system was practically and reasonably implemented in the supermarket and with the involvement of the Plaintiff as a Department Manager.”

[Exhibit 7, pp 1 – 3]

[Emphasis in paragraph 9 of the above text is as in the original text]

[Footnotes omitted]

30. The statements of a factual nature as contained in paragraphs 7, 10, 13 and 15 of Ms Hall’s report were not reflected in any sufficiently similar evidence introduced into the proceedings by the defendant. In my view, those circumstances must be seen to diminish the reliability of the report of Ms Hall: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

Conclusions concerning the expert reports

31. The opinions contained within the respective expert reports are not determinative of the issues to be decided in the proceedings. Instead, where they raise elements of probative analysis, those elements may serve to guide the findings that are required in this case.

Issue 1 – Findings on relevant factual matters

32. In the paragraphs that now follow, I set out my factual findings concerning:

1. the plaintiff’s background and employment;

2. a review of the defendant’s safety documents;

3. the plaintiff’s pre-injury health;

4. the accident circumstances;

5. the plaintiff’s injuries;

6. the initial treatment the plaintiff received for her injuries;

7. subsequent medical and allied treatment and reviews of the plaintiff;

8. the plaintiff’s remaining disabilities;

9. the effect on the plaintiff’s work and domestic activities; and

10. in relation to mitigation of damages.

(1) Plaintiff’s background, health and employment

33. The plaintiff was born in Macedonia in 1969. She is presently aged almost 51 years. She was aged 45 years at the time of her injury. She is married with three children. Between 1994 and 1997, she obtained a Certificate III in Early Childhood Education and Care. In 2001 she applied for and obtained a position with the defendant. Initially, she worked part-time for the defendant in its Caringbah and Ramsgate premises. In 2007, she was appointed to a full time position as a delicatessen manager at the defendant’s Brighton-Le-Sands supermarket.

34. The plaintiff identified the fact that in her period of employment at the defendant’s Brighton-Le-Sands supermarket there were a series of temporary managers under whom she had worked. Significantly, the plaintiff gave unchallenged evidence that, for a long time, whilst she was employed there, the store did not have a manager who was responsible for supervising her work.

35. Before her injury the plaintiff had received some limited training as to how to perform her work. When she was appointed delicatessen manager she received some additional training, as is described in the following extract of her evidence:

“Q. When you became the delicatessen manager did you receive additional training?

A. We did most of it for the slicing. Slicing, lifting. But not for the cages. It was nothing.

Q. Okay, so when you say you had some training for lifting, what training were you given?

A. Just to bend your knees.

Q. How did you receive that training? What form was it in?

A. It was just on the video.

Q. What did you see someone doing on the video?

A. Just bending the knee and reaching.

Q. What sort of things was the person on the video lifting?

A. Some whatever was there, was hams, boxes. But nothing from the bottom. It was all the level.

Q. You've held your hand up there when you've said it's all the level.

A. The level.

Q. So at about waist height, is that what you're indicating?

A. You just grab it from there yep. It was nothing from the ground.

Q. As the delicatessen manager, did you have to organise the staff rosters?

A. Yes.

Q. Could you decide how many staff were employed in the delicatessen at any particular time?

A. Yes.

Q. Were you given a how did it work? Were you given a budget for the year or?

A. A budget. They all work for the budget.

Q. How did the staff budget work in the delicatessen?

A. Okay. Can I explain?

Q. Yes, please?

A. Okay. If I do the roster it has to be signed by the store manager, if he approves it. Many times he call me in the office and he could say, "This is not your budget. Your deli doesn't make that much money. You cut this team member." That was the it's not on your merits.

KELLY: Can you clarify who that is?

WELSH

Q. You've said that the manager would say that to you. Which manager are you referring to?

A. In that time was Luke. But before that all of them really. They're under pressure or something.

Q. What effect did that have on the number of staff you could have in the delicatessen?

A. We'd have to get the limited because we done the Christmas. Like the budgeting for Christmas. So back to the New Year we usually cut slowly and I put all my team members, because the night time is very busy, I have to think about my team members. And that's why we always usually we can have team member 9 o'clock, 10 o'clock but because of the New Year I put 8 o'clock.

Q. So what time did you normally start work?

A. Six.

Q. Between 6 o'clock and 8 o'clock how many people worked in the delicatessen around the New Year in 2014?

A. Me.”

[T17.32 – T18.50]

36. The clear impression to emerge from the evidence cited above is that due to cost cutting budgetary measures, the delicatessen section of the defendant’s supermarket was significantly understaffed.

37. In the course of the limited training the plaintiff had received, no-one had actually shown her how to lift crates of chicken carcasses from the bottom shelf of the cool room trolleys: T33.35 – T33.48. The plaintiff’s evidence in that regard was not contradicted.

38. Ms Hall annexed to her report a number of safety training documents comprising safe work practice instructions. Relevantly, these were identified as follows:

1. Roll Cage SWP055: Exhibit “7”, pp 48 – 49;

2. Deli Equipment SWP136: Exhibit “7”, pp 50 – 52; p 54; pp 56 – 59;

3. Manual Handling SWP006: Exhibit “7”, pp 61 – 64;

4. Task Analysis – Delicatessen: Exhibit “7”, p 64.

39. Ms Hall also annexed to her report some training and supervision records as they related to the plaintiff: Exhibit “7”, pp 66 – 101. Ms Hall’s report also had annexed to it some photographs and technical drawings of the type of equipment used by the plaintiff in her work at the time of her injury: Exhibit “7”, pp 103 – 132. Those documents will be referred to and analysed where it becomes necessary to do so.

(2) Review of defendant’s safety documents

40. The defendant’s Safe Work Practice instructions require consideration.

41. The document SWP055, insofar as it related to the work tasks in which the plaintiff was engaged, was not contributory as it was referenced to the task of moving roll cages. The plaintiff was not engaged in that task.

42. The document SWP136, referred to a concept known as SMART Reach. It referred to the need to reduce rotation movements to avoid twisting when using the back or the knees when lifting. It was not possible for the plaintiff to follow that course in this instance because of the limited area within the cool room for manoeuvring the crates from the roll cage to the nearby trolley table.

43. The SMART Lift Manual Handling instructions within SWP136 required the plaintiff to assess the load, use a SMART Squat technique when lifting low items, including holding the load forward whilst breathing out, whilst keeping the load close to the body with the elbows tucked in. My assessment of the plaintiff’s evidence is that she did those things.

44. The SWP136 document suggested a Team Lift for heavy or awkward items, which included the requirement to ask for help for a two person lift. The plaintiff could not comply with or follow that requirement because at the time there was no-one else rostered on duty in the delicatessen area that could have helped her.

45. The plaintiff had to work in a crowded cool room. Whilst she was able to use the SMART Reach method to squat down and take the load, as suggested in SWP136, she could not avoid making a rotation movement because of the crowded work area in the cool room. She had to rotate the crate after lifting it in order to place it on the nearby trolley.

46. The plaintiff had been inducted into the defendant’s safety systems on 26 March 2010 and 15 September 2010: Exhibit “7”, pp 66 – 74. She was certified as competent in food hygiene on 4 February 2013: Exhibit “7”, p 75. She had been assessed as competent in food safety, injury and claims management on various dates between 2006 and 2011: Exhibit “7”, pp 76 – 77.

47. On 27 November 2012, the plaintiff had been supervised, assessed and certified as understanding safe practices in manual handling, and transferring stock from the cool room and placing it on a trolley to be conveyed to the selling area: Exhibit “7”, pp 78 – 79.

48. On 17 June 2014, just six months before the plaintiff’s injury which is the subject of this claim, her “performance” was assessed by management. That assessment identified the plaintiff as requiring improvement in the areas of rostering and budget in connection with a given wages budget, that is, the defendant’s delicatessen section was said to have been over-budget by a yearly average of $201 per week. The plaintiff’s manager, identified as Luke, summed up his assessment of the plaintiff’s work as follows:

“Standards

Despite attending the deli appreciation workshop at Eastgardens, I was disappointed to see that the deli layouts were incorrect and some not implemented, as well as slice on demand not implemented even though your department summary allows extra hours for Slice on demand. Even more alarming was finding the stock control out of date by 2 months. The team also had limited knowledge of expectations after this workshop. The seafood ordering and thaw tool unused, slice today sell today not followed and over slicing occurring daily.”

[Exhibit “7”, pp 85 – 86]

49. The plaintiff’s response in evidence to those comments was that the delicatessen area was understaffed due to budgetary constraints, which was why she did not have anyone to help her lift the crates of chicken carcasses at the time of her injury: T18.36 – T18.50; T66.45 – T67.16; T69.14 – T69.19.

(3) Previous injury incurred by plaintiff

50. Before the injury which is the subject of these proceedings, in the winter months of 2014, in the course of her work, the plaintiff experienced an episode of sharp pain in the middle of her back. She self-treated that injury with Voltaren. She also had an x-ray. Following that injury, she took no time away from her work. The defendant’s grocery manager, someone she identified as a person named Blair, had been made aware of that injury. Nothing seems to turn on those earlier events which seemed to have involved an injury with only transient effects.

(4) Accident circumstances

51. On the day of the injury which has given rise to this claim, the plaintiff was required to remove the crates of chicken carcasses from the cool room to prepare and place the carcasses in the oven for baking and later sale. There was a lot of stock stored in the cool room at the time of the plaintiff’s injury.

52. The floor space of the cool room was crowded with stored goods. Those circumstances necessarily limited the plaintiff’s ability to manoeuvre in the cool room. The chicken carcasses were contained in crates located on a low shelf of a metal cage with wheels. The plaintiff’s task was to lift the laden crates, elsewhere described as tubs from the shelf and onto the top of a nearby flat trolley in order to then push that trolley into the delicatessen area in order to load the chicken carcasses into the baking oven.

53. There was not much room for the plaintiff to manoeuvre herself about within the cool room because of what she described as blockages or obstacles comprising quantities of other stored goods in that area.

54. The plaintiff lifted the first crate of chicken carcasses by approaching the shelf of the cage from the front, bending her knees whilst keeping her back straight, reaching forward with her arms, taking hold of the crate, lifting it, then turning whilst holding it, and placing the crate onto the nearby trolley. The manoeuvre required that she also lean forward with her body, take the weight, and after lifting the crate, she found that she had to adopt a twisting movement to the left in order to place it on the trolley. She did so without incident in relation to the first crate: T24.10 – T25.41.

55. The plaintiff then prepared and positioned herself in order to perform the same manoeuvre with the second crate of chicken carcasses which was located on the same cage shelf, but located further back, at a deeper location on that shelf. This required that she reach down further into the cage in a bent position in order to take hold of the crate to repeat the manoeuvre she had undertaken with the first crate.

56. That manoeuvre required that she bend down to a very low position in a forward flexed position and in a more forward reaching motion than was required of her compared to when she lifted the first crate. The angle of that forward flexion was estimated to have been about 45 degrees. This component of her task was therefore more difficult for her to perform.

57. As the plaintiff was carrying out that forward reaching, lifting and twisting action whilst holding onto the sides of the second crate of chicken carcasses with her arms outstretched, she felt a painful sensation in her back. She felt as if she had been struck there, and she then fell to the floor, having experienced what seemed to have been a reduced level of consciousness, due to pain: T25.43 – T27.1.

58. The plaintiff then called out for another employee from another area to come to her assistance. She was later taken to St George Hospital where she remained for the rest of the day. The next day she consulted her general practitioner: T27.7 – T27.32.

(5) Injuries

59. The disc injury the plaintiff sustained to her lumbar spine was painful and debilitating. She required medical treatment, ultimately including surgery, for that condition.

(6) Initial treatment

60. Initially, the plaintiff did not seek much in the way of treatment. She explained that she took painkilling medication to deal with her injury in the expectation that the injury would settle, but it did not.

(7) Medical and allied treatment and reviews

61. On 21 January 2015 she returned to St George Hospital for a CT scan. A chronological summary of the plaintiff’s medical consultations and treatment, as extracted from the evidence, is as follows:

1. On 5 February 2015, the plaintiff first consulted her general practitioner, Dr ZF Oreb, relating to the subject injury. It was noted that she had previously seen another general practitioner who had issued her with a WorkCover certificate requiring her to rest her back. Dr Oreb referred the plaintiff to Dr Rosenberg: Exhibit “B”, pp 30 – 31;

2. On 13 February 2015, at the referral of Dr Oreb, the plaintiff was examined by Dr Geoffrey Rosenberg, a spinal surgeon. He commented upon the CT scan finding of a bulge at L4/5 and a focal left-sided disc protrusion at the lumbo-sacral level. He suggested an MRI scan be obtained to assess the extent of the disc protrusion: Exhibit “B”, pp 1 – 2;

3. On 24 February 2015, at Dr Rosenberg’s referral, the plaintiff underwent a lumbar MRI scan which was reported as showing a small left central disc protrusion at L5/S1 with an associated annular tear which abutted the left S1 nerve root, without canal stenosis: Exhibit “B”, p 11;

4. On 5 March 2015, the plaintiff saw Dr Rosenberg again following the recent MRI scan. He noted a small disc protrusion at the lumbosacral level with an annular tear to the left side adjacent to the S1 nerve root. He noted that whilst the protrusion was small, the plaintiff was having big problems. He suggested an S1 nerve root block as the next step: Exhibit “B”, p 3;

5. On 23 April 2015, the plaintiff consulted Dr Rosenberg again. He noted the S1 nerve root block had not helped the plaintiff. He noted she was quite incapacitated with ongoing low back pain and left leg pain. He suggested a dynamic MRI scan to ascertain how the affected disc behaves under a load. He considered the plaintiff was heading towards surgery in light of the lack of improvement: Exhibit “B”, p 4;

6. On 12 May 2015, the plaintiff underwent a CT guided spinal injection of Dexamethosone and Lignocaine into her left S1 nerve root. The printed report on that procedure was incomplete: Exhibit “B”, p 33;

7. On 26 May 2015, the plaintiff underwent a multipositional lumbosacral MRI scan. On imaging taken in the sitting position, the appearance of that imaging suggested that at L5/S1 there was a small posterior and central disc protrusion with an annular tear with minor contact to the left S1 nerve by the disc protrusion. The dynamic study was indicative of the same, but with mild exaggeration on the extension sequences: Exhibit “B”, pp 12 – 13;

8. On 12 June 2015, the plaintiff underwent an x-ray of her lumbar spine which was reported as revealing a very slight thoracolumbar curve convex to the left. The report also included the expression: “There is several millimetres of alignment does not change between flexion and extension”: Exhibit “B”, p 5; pp 32 – 33;

9. On 10 September 2015, at the request of her former solicitor, the plaintiff was examined by Dr Shaik Habib, a consultant orthopaedic surgeon in relation to her complaint of severe low back pain radiating into the left buttock, left lower limb and the lateral aspect of her left foot in the distribution of S1. He assessed her as being severely disabled due to her back condition: Exhibit “B”, pp 48 – 52;

10. On 26 February 2016, Dr Rosenberg reviewed the plaintiff 8 months after his previous examination. He noted she was far worse than when last seen, with continuation of significant pain in her back and left leg. He was not prepared to organise a cortisone injection as suggested by the workers’ compensation insurer because she had an S1 nerve root block in March the previous year, without benefit. He assessed the plaintiff as genuine, with an unstable lumbo-sacral segment due to a discal injury. He noted she was “going downhill rapidly” an needed a lumbo-sacral discectomy and fusion: Exhibit “B”, p 6;

11. On 4 May 2016, the plaintiff was re-examined by Dr Rosenberg. He noted that her condition had remained unchanged, with significant ongoing back and left leg pain. He recommended that the plaintiff have a further S1 nerve root block. He maintained that the plaintiff’s condition was not stable due to significant mechanical back pain and referred left leg pain due to an unstable disc and unstable facet joints. He considered that from an empirical perspective, the surgical option of a fusion procedure was the only option: Exhibit “B”, pp 7 – 8;

12. On 12 May 2016, the plaintiff underwent a CT guided injection of Dexamethosone and Lignocaine into the left S1 nerve root canal: Exhibit “B”, p 14;

13. On 17 May 2016, the plaintiff was the subject of a psychological counselling management plan. She had 6 consulting sessions. She was referred for psychological counselling because she was not working, and because she was experiencing pain, anxiety, and depression: Exhibit “B”, pp 34 – 37;

14. On 8 July 2016, Dr Oreb issued the plaintiff with a WorkCover incapacity for work certificate for the period 8 July 2016 to 20 August 2016: Exhibit “B”, pp 15 – 17;

15. On 3 August 2016, at the request of her former solicitors, the plaintiff was assessed by Dr Peter Giblin, a consultant orthopaedic surgeon. After reviewing her complaints of constant backache with intermittent sharp stabbing pains with some burning, and pins and needles sensations down her left leg and her ankle, and other related complaints. He considered that the surgery proposed by Dr Rosenberg was reasonably necessary although some would take a more conservative approach: Exhibit “B”, pp 60 – 64;

16. On 16 September 2016, Dr Oreb issued the plaintiff with a WorkCover certificate of unfitness for work between 16 September 2016 to 30 October 2016: Exhibit “B”, pp 18 – 20;

1. On 7 October 2016, Dr Oreb issued the plaintiff with a WorkCover unfitness for work certificate for the period 7 October 2016 to 20 November 2016: Exhibit “B”, pp 21 – 23;

2. On 14 November 2016, Dr Oreb issued the plaintiff with a WorkCover unfitness for work certificate for the period 14 November 2016 to 30 December 2016: Exhibit “B”, pp 24 – 26;

3. On 16 December 2016, Dr Oreb issued the plaintiff with a WorkCover unfitness for work certificate for the period 16 December 2016 to 30 January 2017: Exhibit “B”, pp 27 – 29;

4. On 1 March 2017, the plaintiff was reviewed by Dr Rosenberg. He reviewed her history of back, left groin and left leg pain, and noted she had an unstable, weak lumbosacral disc which in his opinion explained her symptoms, as was confirmed by the radiological findings. He considered that the definitive treatment was for surgery comprising a lumbosacral discectomy and fusion, as physiotherapy, whilst releasing her protective muscle spasm, did not help with her underlying pain: Exhibit “B”, p 9. The plaintiff signed a request for Dr Rosenberg to carry out a lumbosacral discectomy and fusion procedure: Exhibit “B”, p 38;

5. On 17 August 2017, at the request of the plaintiff’s present solicitor, the plaintiff was examined by Professor Michael Fearnside, a consultant neurological surgeon. After undertaking a detailed review of the plaintiff’s history, the onset of the problems, her presenting condition, the results of medical investigation, his findings on his physical examination of the plaintiff, and his review of medical documentation that was provided to him, he expressed his opinions as follows. First, the nature and conditions of her work had aggravated the plaintiff’s prior back condition but not to the point of significant symptoms, or to the extent that she required treatment. Secondly, as the plaintiff has undergone a comprehensive rehabilitation program, the question for debate is whether a lumbar spinal fusion would be the appropriate treatment. On balance, he considered that whilst it was possible a lumbosacral discectomy and a neurolysis of the nerve root might relieve her left sciatic pain, it is probable she would continue to experience a measure of low back pain. He noted that lumbar spinal fusion is not recommended as a routine treatment following primary disc excision in patients with isolated herniated lumbar discs causing radiculopathy, although it is a treatment option in the presence of significant chronic pain. He considered the plaintiff has undergone reasonable medical treatment and it was not possible to predict the outcome of lumbar spinal fusion surgery: Exhibit “B”, pp 66 – 79;

6. On 31 October 2018, at the request of the plaintiff’s present solicitors, the plaintiff was re-assessed by Dr Habib. He identified the diagnosis of L5/S1 lumbar discopathy with left radiculopathy. He noted that she has only obtained partial relief of the left-sided radiculopathy and that she has been left with permanent pain and restricted mobility with considerable limitation on her activities. He considered there was no indication for further surgery, and that the plaintiff was not only permanently unfit for her pre-injury employment, but that she is also permanently unfit for any manual and physically demanding jobs. He considered that at that time, she was simply unfit for work: Exhibit “B”, pp 54 – 60;

7. On 2 November 2018, at the request of the solicitor for the defendant, the plaintiff underwent a vocational and functional assessment by a physiotherapist and a rehabilitation counsellor. Allowing for a list of identified physical restrictions, those persons concluded that she was fit for “sedentary levels of work” in relation to the positions of inquiry clerk or customer service officer, receptionist, and telemarketers. Whether those conclusions are realistic, reliable and justifiable in this case will be revisited in my assessment of the plaintiff’s damages: Exhibit “1”, pp 10 – 51;

8. On 28 November 2018, at the request of the solicitor for the defendant, the plaintiff was examined for medico-legal purposes post-surgery by Dr Machart. His diagnosis was that of lumbosacral disc protrusion in the incident on 31 December 2014, on the background of pre-existing symptomatic (sic) degenerative changes in the lumbar spine, and that 9 months post-surgery, although the severity of symptoms had diminished, radiculopathy persisted. He did not consider the plaintiff to be totally disabled and thought she could be rehabilitated for part-time non-physical work, with identified limits on that view. In light of his concession that the plaintiff experienced chronic lumbar pain, it is difficult to see how his work fitness opinion applied to her circumstances, where she was in pain, moved slowly, and was generally quite stiff: Exhibit “1”, pp 3 – 7;

9. On 5 December 2018, at the request of her solicitor, the plaintiff was re-examined by Dr Giblin. His updated opinion was that the plaintiff remained unfit for work that involved repetitive bending or heavy lifting. At that stage he considered that the plaintiff had not yet reached maximum medical improvement: Exhibit “B”, pp 86 – 90;

10. On 11 December 2018, Dr Machart stated that the plaintiff had reached her point of maximum medical improvement for WorkCover assessment purposes: Exhibit “1”, pp 8 – 9;

11. On 4 March 2019, at the request of the solicitor for the defendant, Dr Machart addressed the question of whether the plaintiff had a capacity to perform “Suitable Duties”. Those duties entailed (1) working at assisted checkouts; (2) working with loose stock; (3) working with markdowns; (4) working with presentation. The duty statements for those positions do not appear to have been provided to Dr Machart, if they were, he did not refer to them. His general answer was that she was not totally disabled, in that she “could be rehabilitated into part-time, non-physical work, 2 to 4 hours per day, 5 days per week, semi-sedentary work, some office work, food preparation or similar work”. He qualified that opinion by stating the plaintiff should not be doing work involving lengthy standing, sitting, bending, or lifting anything heavier than 5kg. He also qualified his remarks by stating that not having worked for 4 years made rehabilitation into work more difficult. He then looked at “the tasks and functional demands of the work options outlined” and said that apart from “Presentation” work, which could involve frequent pushing and pulling stresses on the lumbar spine, which could be a problem, he did not see problems with the other categories. That opinion does not comply with the requirements of UCPR r 31.27(1)(c) and Sch 7 cl 3(e). I therefore give it significantly diminished weight: Exhibit “1”, pp 1 – 2;

12. On 10 July 2019, the plaintiff was re-examined by Dr Rosenberg. She was limping. He considered the plaintiff has quite rapidly developed sacro-iliac joint overload as a side-effect at the level below a solid fusion. He suggested a steroid injection into the left sacro-iliac joint, and identified further surgery may be of help: Exhibit “B”, p 10;

13. On 18 September 2019, Dr Rosenberg wrote to Dr Oreb following a consultation with the plaintiff on that date. He suggested that in view of overload of the left sacro-iliac joint from the fusion above this joint, it was reasonable to contemplate a surgical answer to the plaintiff’s symptoms: Exhibit “2”;

14. On 25 January 2020, the plaintiff attended hospital with an episode of aggravation of her chronic back pain: Exhibit “B”, pp 39 – 41;

15. On 5 February 2020, at the request of Coles Team Cover (NSW), the plaintiff was assessed by Dr Machart. His diagnosis was that the plaintiff had chronic pain syndrome for which there is no quick fix surgical solution. He stated that failed back syndrome was not best treated by additional surgery. He suggested that the plaintiff obtain treatment from a pain physician. Despite those views, and despite the presence of pain behaviour, he considered the plaintiff to not be totally disabled, stating she was fit for non-physical and preferably sedentary work, lifting no more than 5kg, and that surgery could be an option: Exhibit “9”;

16. On 27 February 2020, unrelated to her back problems, the plaintiff presented to Campbelltown Hospital with a small bowel obstruction which was suspected to be due to diverticulitis: Exhibit “B”, pp 42 – 47;

17. On 9 March 2020, Dr Rosenberg wrote to the plaintiff’s solicitor to advise that the plaintiff’s sacro-iliac problems are as a result of adjacent segment issues from the previously performed fusion. On that basis, and on the basis of the plaintiff’s symptoms not having settled following injections, he recommended sacro-iliac fusion surgery: Exhibit “3”;

18. On 23 March 2020, at the request of her solicitor, the plaintiff was assessed by Dr E Gehr, a consultant orthopaedic surgeon. He recorded her symptoms as pain over the mid-lumbar area, crossing to the left gluteal area down to the level of the left knee. Sitting tolerance was limited to 10 minutes, walking tolerance was limited to 10 – 15 minutes at a time. Back stiffness was reported. Physical limitations were observed on examination. His diagnosis was lumbosacral discogenic injury with a one level fusion and residual radiculopathy, and sacro-iliac osteoarthritis with tenderness in that region due to increased loading of that area following the earlier lumbar fusion. He considered that the lumbosacral fusion recommended by Dr Rosenberg was reasonable: Exhibit “4”;

19. On 25 May 2020, at the request of her solicitors, the plaintiff was re-examined by Professor Fearnside. At that time he considered that she had no capacity for work of any type. He noted she continues to experience back pain and left sciatic pain. He considered the main barriers to the plaintiff returning to work to be her ongoing back and leg pain: Exhibit “B”, pp 80 – 85;

(8) Disabilities that remain

62. Given my acceptance of the plaintiff’s credit as a witness, and my acceptance of her evidence generally, in the absence of significant challenge on matters of history, I propose to treat the above histories as summarised in the medical evidence as evidence of the plaintiff’s early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW). Similarly, and consistent with that approach, I have drawn upon the unchallenged content of the tendered medical reports to identify relevant aspects of the plaintiff’s history, and her reported disabilities, which I accept.

63. In addition to the plaintiff’s experience of lower back pain and related sciatic leg pain, she has restricted mobility and agility. She has developed sacro-iliac joint overload, and she occasionally walks with a limp. The plaintiff has difficulty sleeping. The medications she takes interfere with her ability to think clearly. This has an adverse impact upon her ability to work: T62. At times she is limited in her ability to carry weights of up to 1kg: T63.9. Her standing and sitting tolerance are limited: T63.40. She experiences pain, anxiety and depression: Exhibit “B”, pp 34 – 37.

(9) Work effects

64. As a result of her injury, the plaintiff has been unable to return to her work, or undertake any other work. Those circumstances form the basis of her claim for loss of earnings and loss of earning capacity.

(10) Mitigation

65. The plaintiff must prove that she has taken reasonable steps to mitigate her loss: s 151L of the WC Act. The defendant bears the onus of proving that she has failed to do so.

66. I find that by the plaintiff’s actions in seeking out and following medical advice which has resulted in her undergoing spinal surgery, she had acted reasonably to seek to mitigate her damages, albeit that such surgery has not been entirely successful in alleviating her back problems. In my opinion, the fact that further surgery has been suggested to her and she has not yet agreed to have it, or make arrangements to have it does not amount to a failure to mitigate on her part.

67. In considering whether or not the plaintiff has taken reasonable steps to mitigate her losses, subjective factors must also be taken into account: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3. A prospective analysis is required, not an analysis of what a theoretical hindsight analysis might suggest: Arnott v Choy [2010] NSWCA 259, at [161]; Mahony v Watson [2003] NSWCA 259, at [52] – [53], Brogan v Geary (1995) Aust Torts Reps 81-342, at 62,421.

68. The assessment must take into account the plaintiff’s actual condition, not a hypothetical condition that might have been or could have prevailed if the contended treatment had been followed. The defendant bears the onus of showing that a contended different course of treatment would have made a material difference to the plaintiff’s condition: Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235, at pages 239G - 240A. Before the hearing, the defendant had not served or tendered any evidence to that effect.

69. In my view, the evidence does not reasonably suggest that there had been a relevant failure on the part of the plaintiff to mitigate her losses. Accordingly, I find that there is no reasonable basis upon which to conclude that the plaintiff has unreasonably failed to take appropriate steps to mitigate her damages.

70. I now turn to the consideration of the issues calling for decision as identified in paragraph [18] above.

Issue 2 – Relevant risk of harm

71. Whilst the limiting provisions of the Civil Liability Act 2002 (NSW) do not apply to these proceedings, in the context of this analysis, having regard to Caselaw which interprets sections of that Act which concern claims of negligence, it is convenient to identify the foreseeable risk of harm associated with the plaintiff’s assigned work tasks.

72. The plaintiff’s assigned work duties required that at times, and without mechanical or manual assistance, whilst working in a confined space within the defendant’s cool room, she was required to lean forward in a flexed position to grip, manipulate, lift and relocate crates of chicken carcasses of varying weights.

73. In those circumstances, when viewed prospectively, through the eyes of the plaintiff’s employer, it is plainly apparent that there was a foreseeable and not insignificant risk of an employee in the plaintiff’s position incurring a back injury whilst lifting, carrying and manipulating goods to relocate them, if reasonable care was not taken by the employer to consider employee safety in that work system. The defendant’s pre-accident safety documents referred to a need to avoid twisting movements.

Issue 3 – The duty of care and its non-delegable scope

74. In cases claiming work injury damages according to common law principles, it is necessary to identify the duty of care that is owed by an employer. For convenience I adopt a previously identified summary of those considerations as set out in my decision in Warda v Specialty Fashion Group Ltd [2018] NSWDC 218, as follows:

“…

1. An employer owes a non-delegable common law duty of care to employees to take reasonable care to avoid exposing them to unnecessary risks of harm from injury. Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12]; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, at [101]; TNT Australia Pty Ltd v Christie [2003] NSWCA 47. The fact that the subject method of mannequin retrieval or placement has been standard practice, without prior incident, does not foreclose the issue of negligence where it is evident that there is a foreseeably dangerous situation, as is the case here: Ferraloro v Preston Timber Pty Ltd (1982) ALR 627, at 629 lines 15 – 20; (1982) 56 ALJR 872, at 873.

2. If there is real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of work that eliminates the risk, or if that is not foreseeable, then the provision of adequate safeguards: Hamilton v Nu-Roof (WA) Pty Ltd [1956] HCA 34; (1956) 97 CLR 18, at 25. In devising such methods of work, the employer must take into account the possibility of fallible thoughtlessness, or inadvertence, or carelessness on the part of the employee: Smith v The Broken Hill Co Pty Ltd [1957] HCA 34: (1957) 97 CLR at 337; at 342.

3. The described duty of care is one that an employer is not able to delegate. The duty is not static, and it is directed at employee protection, without waiting for an accident to occur.”

   75. Over the course of time, employers have been expected to acquire and have an increased appreciation of the likely causes of injury to employees engaged in manual work systems. In that context the obligation on the employer was to take reasonable care for the safety of its employees: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20, at [6] per Brennan and Deane JJ. In that latter case this was recognised as being in keeping with increasing concerns in the community about safety in the workplace, at [12], per Mason, Wilson and Dawson JJ.

   76. That said, the question of what is considered to be reasonable in the circumstances is a question of fact to be determined according to standards which prevailed at the time: Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250, at [183].

Issue 4 – Alleged negligence and causation of harm

77. In the context of determining whether a breach of duty of care has occurred due to a want of reasonable care on the part of an employer, the first question to be addressed is whether a reasonable employer in the position of the defendant would have foreseen that the system of work, or work tasks required of the plaintiff, involved a risk of injury to the plaintiff. (The foreseeability question)

78. If the answer to that question is in the affirmative, the next question to be addressed is what a reasonable employer in the position of the defendant would have done in response to the risk, balanced commensurately with the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action against such risks: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [15]. (The precautions question)

79. A third question then arises, namely, were there any relevant failures by the employer in relation to those questions. That issue is to be decided according to the magnitude of the risk, the probability of its occurrence, and the degree of expense or difficulty in taking alleviating action against the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [48]. (The breach question)

80. A fourth question that then requires consideration is whether the breach of duty of care, if found, was the relevant cause of the plaintiff’s injury. (The causation question)

81. Before considering those questions, I identify the particulars of negligence pleaded by the plaintiff.

Particulars of negligence as pleaded by plaintiff

82. In support of her claim that the defendant was negligent, the plaintiff relied upon an extensive list of particulars of negligence as pleaded at paragraph 23 of her statement of claim, as follows:

1. Failing to devise a safe system of work;

2. Failing to institute a safe system of work;

3. Failing to maintain a safe system of work;

4. Failing to provide the plaintiff with a safe means of access to all areas of employment;

5. Failing to ensure that the crates of chicken were stored within the defendant's storeroom at a height which made it unnecessary for the plaintiff to bend and lift;

6. Failing to store the crates of chicken within the storeroom so that it was unnecessary for the plaintiff to reach forward whilst lifting and bending;

7. Failing to store the crates of chicken within the cool room so that it was possible for a trolley to be placed adjacent to the rack at a consistent height which permitted crates of chicken to be transferred without the need for excessive lifting, bending and twisting;

1. Failing to provide the plaintiff with a trolley which could be adjusted so as to avoid the need to undertake any excessive or unnecessary lifting;

2. Failing to undertake a risk assessment of the task of transferring crates of chicken from cool room to the oven;

3. Failing to provide the plaintiff with any or any adequate manual handling training;

4. Failure to provide the plaintiff with sufficient or adequate assistance in the delicatessen;

5. Failing to provide adequate staff in the delicatessen;

6. Knowing that the plaintiff had experienced some back pain as a result of manual handling tasks in the delicatessen in August 2014, failing to review work practices in the delicatessen to ensure safe lifting practices were employed by staff at all times;

7. Requiring the plaintiff to work at a speed which made it impracticable for her to undertake individual tasks in accordance with safe manual handling practices in any event.

83. Those particulars provide the framework for considering the questions identified at paragraphs [77] and [82] above.

Foreseeability

84. In answer to the first question posed (at paragraph [77] above), it is beyond dispute that on a prospective consideration of the work system in which the plaintiff was engaged, a reasonable employer in the position of the defendant would have foreseen that the work tasks in which the plaintiff was engaged involved a risk of injury: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]-[125].

85. In this case there is evidence of the defendant’s awareness of such foreseeability. This is in the form of the historical existence of its training materials, albeit that those materials were dated, and not specifically tailored to the particular work task in which the plaintiff was engaged at the time of her injury.

86. In that evidence, it is plain that the defendant had foreseen the risk of harm that could arise from a lifting injury. A task that required a worker to lean forward in an awkward posture to pick up and move crates of weighty merchandise in relatively confined spaces in a twisting movement with limited scope for manoeuvrability, on a prospective analysis, without doubt carried with it a foreseeable risk of injury.

87. The fact that the defendant’s workplace had not beforehand experienced the materialisation of a risk of back injury in the work in which the plaintiff was engaged, does not derogate from the foreseeability of such a risk materialising. The risk of a back injury in the plaintiff’s work situation was not far-fetched or fanciful. It was an ever-present risk where the manual lifting and movement of weighty merchandise was required where space and staffing constraints limited the adoption of safe ergonomic practices.

88. In this case, the limited space within the crowded cool room in which the plaintiff was required to perform her work, and the absence of available additional employee assistance for lifting tasks, created what I find to be a foreseeable and not insignificant risk of a back injury occurring in the performance of the plaintiff’s assigned work tasks.

Precautions a reasonable employer ought to have taken

89. In answer to the second question posed (at paragraph [78] above), that of precautions that would have been taken by a reasonable employer, I find that in response to the identified risk of harm, a reasonable employer in the position of the defendant would have taken action to seek to avoid such risks.

90. In my assessment, such precautionary actions, none of which would have involved undue burden on the defendant whilst carrying out its supermarket delicatessen business, ought to have included undertaking a specific risk assessment; ensuring that there was adequate space in the cool room for manoeuvrability of equipment and goods without overcrowding; and the provision of manual assistance with heavy or awkward lifting tasks so as to avoid twisting movements under load.

91. In a limited sense, historically, the defendant’s managerial staff had supervised and monitored the plaintiff’s work. This is evident from the letter that the person named Luke had written to the plaintiff on 17 June 2014, as cited at paragraph [48] above. However, it seems the focus of that supervision was on the subject of budgetary considerations and food standards. It did not seem to take into account considerations aimed at ensuring employee safety.

92. The burden on the defendant to provide the plaintiff with additional assistance with heavy and awkward lifting tasks within the confined area of the cool room needed to be addressed. In the context of the defendant’s substantial business operation, the burden of taking precautions against the risk of injury seemed negligible in the circumstances.

93. Simple steps could have been taken, such as making a roster adjustment to enable another employee to be made available ad hoc if called upon, even if only for a short time in the morning, to ensure safe lifting occurred in instances where manual handling was required. This would have been a minimal burden in circumstances where the defendant employed staff in significant numbers across various areas in the supermarket. Multitasking of a staff member for tasks of that kind to be carried out briefly before opening hours to assist with awkward lifting to avoid twisting movements does not seem to have been a matter involving difficulty or undue burden for the defendant.

94. In terms of the exercise of reasonable care in the workplace, a competent manager ought to have seen the desirability of making such arrangements. In this case, it seems that management allowed budgetary considerations to prevail over safety considerations. This was in circumstances where there was a significant turnover in managerial staff which seems to have affected continuity of supervision and which had the effect of distracting from a safety issue which needed to be addressed and monitored, just like with budgeting, another issue which concerned the defendant.

Breach of duty

95. In answer to the third question of breach of the duty of care, on the foregoing consideration, I find that the defendant failed to take reasonable care for the plaintiff’s safety by failing to take the reasonable precautions identified above. It failed to devise, implement and maintain a safe system of work. It was therefore in breach of the duty of care it owed to the plaintiff in her workplace.

96. The system of work devised for the plaintiff left her foreseeably and avoidably exposed to the risk of a back injury whilst lifting in an awkward space with limited scope for the safe manoeuvrability of the weights being lifted. The injury could have been avoided if reasonable care had been taken by the defendant in the form of the precautions identified at paragraphs [89] to [94] above.

97. This was where an awkward twisting movement with lifting, in a crowded area, was required without assistance. That system also exposed the plaintiff to the risk of injury from a momentary lapse of concentration when carrying out the awkward task at hand. All of the described circumstances demonstrate that the defendant had relevantly breached the duty of care that it owed to the plaintiff as she has claimed.

Causation

98. In my assessment the plaintiff would most probably not have incurred her back injury but for the defendant’s breach of duty of care to the plaintiff as identified above. If she had been provided with access to an assistant who could have been called upon to assist with occasional awkward lifting of stock before opening hours, the plaintiff’s back injury would most probably not have occurred.

99. Accordingly, I find that the plaintiff has established the necessary ingredients for a finding of negligence against her employer defendant in the described circumstances.

Issue 5 – Alleged contributory negligence

100. The defendant relied upon an extensive list of particulars of contributory negligence, which it pleaded at paragraph 6 of its defence, as follows:

“•   Failure to take any or any adequate care for her own safety;

•   Failure to seek assistance as and when required;

•   Acting in a manner which unnecessarily exposed herself to a risk of injury.

•   Failure to take proper care in and about the performance of her work.

•   Failure to keep a proper look out in the performance of her work.

•   Failure to take precautions for her own safety in the performance of her work.

•   If the plaintiff was exposed to a risk of injury in her work (which is denied) she failed to advise the defendant of it.

•   If the plaintiff was exposed to a risk of injury in the performance of her work (which is denied), she failed to remove herself from that risk.

•   If the plaintiff required further supervision in the performance of her work (which is denied) she failed to request it from the defendant.

•   If the plaintiff required further instructions in the performance of her work (which is denied), she failed to request it from the defendant.

•   Failing to heed warnings and instructions provided by the defendant in relation to safe manual handling techniques.”

101. The defendant required the plaintiff to engage in manual handling tasks at a time before the supermarket was open for customers. This was at a time when no other staff had been allocated to assist her with her required lifting tasks that were hampered by crowded stock arrangements in the cool room.

102. The plaintiff did not devise that system. She was merely implementing it as best she could given the limitations of budgetary and staffing limitations that prevailed at the behest of the defendant.

103. I accept the submission made on the plaintiff’s behalf that she was at the mercy of the defendant’s system of work, in that she was wholly dependent upon others in the defendant’s organisation in terms of how the work was to be carried out. This was in circumstances where the plaintiff was poorly trained and not assisted in manual handling techniques. It does not assist the defendant to refer to the fact that the plaintiff was on a safety committee at her workplace. I infer she was there in a consultative capacity and not for the purpose of devising a system of work. That was a non-delegable function the defendant had as its responsibility. She was a delicatessen manager. Her job did not involve responsibility for devising safety responses to foreseeable risks. She was not qualified to do so.

104. The plaintiff did not devise the system of work. She was given limited safety training. She was not able to call upon casual assistance for occasional manual handling tasks. She did her best to comply with the defendant’s requirements of her under difficult circumstances that evolved due to budgetary restraints imposed by managerial staff. In those circumstances I therefore reject the claimed defence of contributory negligence.

Issue 6 – Assessment of damages

105. In the paragraphs that now follow I identify my findings concerning the assessment of the plaintiff’s claim for damages.

Past economic loss

106. The plaintiff claimed damages for past economic loss between 31 December 2014 and 13 July 2020, at $900 per week net, which over 288 weeks, amounts to $259,200. In contrast, the defendant claims such damages should be calculated at $800 per week net over the same period, resulting in a calculation of $230,400.

107. In my assessment, the defendant’s economic loss submissions as cited above proceed upon an artificially low weekly rate which I do not accept as being comparable to the plaintiff’s actual earnings.

108. I accept that the plaintiff has been unable to work since 31 December 2014, and I accept that work-related injury inability to work continues. She has had medical and surgical treatment as identified and reviewed at paragraph [61] above. There is no basis upon which to find that she has failed to take reasonable steps to mitigate her loss. I accept the submission made on her behalf which calculates her economic loss over that period. I therefore assess the plaintiff’s damages for past economic loss in the amount of $259,200.

Superannuation on past economic loss

109. In accordance with well settled principles and practice, I assess the loss of the employer funded superannuation component on past economic loss of $259,200 at 11 per cent, namely $28,512. I do not accept the defendant’s lesser calculation of $25,344 as it is based on an artificially low rate. I therefore assess the plaintiff’s damages for the loss of past employer funded superannuation in the amount of $28,512.

Future economic loss

110. The plaintiff claimed future economic loss at $906 per week net over 16 years projected at 5 per cent (x 579.5) less 15 per cent for vicissitudes, namely $446,273.

111. In contrast, the defendant claims such damages should be assessed at $800 per week over the same period, at the same rate of discount, but discounted by 25 per cent to allow for a residual earning capacity. This resulted in a submitted calculation of $295,495. In my view the discounted weekly rate identified by the defendant’s submission is arbitrarily low and has no reasonable foundation in the evidence. Having regard to the preponderance of the medical evidence, I do not accept that she has any residual earning capacity.

112. The medical assessments tendered in evidence give no realistic cause for optimism that the plaintiff’s capacity for work will improve in the future. Her identified disabilities are chronic. These are most likely to continue to prevent her from engaging in remunerative employment. I find that she suffers an indefinitely ongoing loss of earning capacity that is productive of financial loss which requires assessment for what would otherwise have been her normal working life. I accept as reasonable the calculation of that loss as submitted on her behalf. I assess the plaintiff’s damages for past economic loss in the amount of $446,273.

Superannuation on future economic loss

113. In accordance with well settled principles and practice, I assess the loss of the employer funded superannuation component on future economic loss of $446,273 at 12 per cent, namely $59,602. I do not accept the defendant’s lower submission of $32,509 as it is based upon an arbitrarily discounted foundation. I therefore assess the plaintiff’s damages for the loss of future employer funded superannuation in the amount of $53,533.

Fox v Wood

114. The amount of tax deducted from the plaintiff’s weekly workers’ compensation payments is agreed in the sum of $41,036.60: MFI “2”. I therefore assess the plaintiff’s Fox v Wood damages in the amount of $41,036.60.

Summary of damages assessment

115. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past economic loss	$259,200
(b) Past superannuation loss	$28,512
(c) Future economic loss	$446,273
(d) Future superannuation loss	$53,533
(e) Fox v Wood	$41,036.60
Total	$828,554.60

Disposition

116. The plaintiff has established her entitlement to a damages award for $828,554.60 and she should have a judgment for that amount. Any adjustment to that amount on account of the need for repayment due to be made by the defendant as a self-insurer for worker’s compensation payments made to or on behalf of the plaintiff may be effected by bringing short minutes to adjust the judgment sum.

Costs

117. As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

118. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $828,554.60;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

14 October 2020 - Coversheet, name of solicitors for defendant changed to HWL Ebsworth.

Decision last updated: 14 October 2020