Gray v Coles Supermarkets Pty Limited - [2019] NSWDC 749

District Court

New South Wales

Medium Neutral Citation: Gray v Coles Supermarkets Pty Limited [2019] NSWDC 749
Hearing dates: 4, 5, 6, 7 and 8 November 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the defendant against the plaintiff.
(2)   Order the plaintiff to pay the defendant’s costs of defending the plaintiff’s claim.
(3)   Judgment for the cross defendant on the Cross-Claim.
(4)   Order the cross-claimant to pay the cross-defendant’s costs of the Cross-Claim.
(5)   Grant leave to approach my Associate if any party seeks a different costs order.

Catchwords:
NEGLIGENCE – whether a reasonable person would have taken precautions against a risk of harm – burden of taking precautions to avoid the risk of harm – Civil Liability Act 2002 (NSW) ss 5B, 5C

CROSS-CLAIM – labour hire agreement – contribution as a tortfeasor – contractual indemnity – breach of contract
OTHER – lower back injury during manual handling – training and instruction – supervision – pallet turning
Legislation Cited: Civil Liability Act 2002 (NSW)
Law Reform Miscellaneous Provisions Act 1946 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Work Health and Safety Regulation 2011 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Bunnings Group Limited v Giudice [2018] NSWCA 144
Coles Supermarkets Australia Pty Ltd v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140
Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098
Category: Principal judgment
Parties: Roland Gray (Plaintiff)
Coles Supermarkets Pty Ltd (Defendant)
Representation:
Counsel:
B D Dooley SC with M H Best (Plaintiff)
G J Parker SC (Defendant/Cross-Claimant)
J Catsanos SC (Cross-Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
McCulloch & Buggy (Defendant/Cross-Claimant)
Holman Webb (Cross-Defendant)

File Number(s): 2018/131372

Judgment

Background
Evidence of the Plaintiff
Evidence of Mr Farr
Expert evidence on liability for the plaintiff
Lay evidence on liability for the defendant
Expert evidence on liability for the defendant
Liability – Findings of Fact
Liability – Consideration
Pallet turning

Conclusion on Liability
Theoretical Assessment of Damages
Non-Economic Loss
Past Out-of-Pocket Expenses
Future Out-of-Pocket Expenses
Future Care
Past Economic Loss
Past Superannuation Loss
Future Loss of Earning Capacity
Future Superannuation
Conclusion on Theoretical Damages

The Cross-Claim
Claim for contribution as a tortfeasor
Claim for Indemnity – Clause 1.15 of Schedule 2 of the Services Agreement
Clause 3.2(c) of the Services Agreement
Schedule 3 of the Services Agreement
Clause 1.22 of Schedule 2 to the Services Agreement
Clause 2.1(d) of Schedule 2 to the Services Agreement
Clause 13.2.1 of Schedule 2 to the Services Agreement
Conclusion in relation to Clause 1.15 of Schedule 2 to the Services Agreement

Claim for Indemnity - Clause 13.1 of the Services Agreement
Damages for Breach of Contract
Breaches specifically pleaded
Breach through actions of the plaintiff

Conclusion on the Cross-Claim
Orders

Judgment

Background

The plaintiff was employed by Ready Workforce (A Division of Chandler Macleod) Pty Limited (Ready Workforce) as a picker packer. The plaintiff worked at the defendant’s grocery distribution centre at Smeaton Grange. He started work there in November 2013.
At about 5.00pm on 1 May 2015 the plaintiff picked up a pack of 24 500ml bottles of water. It weighed just over 12 kilograms. In the course of lifting and transferring that product he injured his lower back.
By a Further Amended Statement of Claim, filed on 5 November 2019 the plaintiff alleged that the manual handling required in his duties at Smeaton Grange exposed him to a risk of harm of sustaining musculo-skeletal injury to his lumbar spine. In his pleading the plaintiff set out 21 particulars of negligence which will be considered later in this judgment.
In its Defence filed on 11 March 2019 (pleading to an earlier version of the Statement of Claim) the defendant denied the allegations of negligence. In the alternative, it pleaded contributory negligence. Further, the defendant pleaded s 151Z(2) of the Workers Compensation Act 1987 (NSW) (WCA) in reduction of any amount found to be payable to the plaintiff.
By a Cross-Claim filed on 25 February 2019 the defendant as cross-claimant sued Chandler Macleod Group Limited as cross-defendant. It claimed damages for breach of contract, indemnity pursuant to contract and contribution or indemnity pursuant to s 5 of the Law Reform Miscellaneous Provisions Act 1946 (NSW) (the 1946 Act).
The cross-defendant filed a Defence to the Cross-Claim on 2 August 2019. The Defence pleaded various provisions in a Services Agreement entered into between the cross-claimant and the cross-defendant.

Evidence of the Plaintiff

The plaintiff gave evidence that he was born in 1964. He left school in Year 11 in 1982. Between 1983 and 1988 he had a number of jobs as a cleaner, labourer, process worker and nursery man. In about 1989 he became a Welder Second Class, but he was not trade qualified. He worked as a welder for about five years. In the mid-1990s the plaintiff became a casual swimming teacher. In the late 1990s he became a qualified swimming coach. He worked at a gym in Campbelltown as a swimming coach between 2000 and early 2013 when that gym closed down. He then became unemployed for a short time. The plaintiff commenced employment with Ready Workforce in November 2013. He worked at Smeaton Grange as a casual five to six days per week from 3.00pm to 7.00pm or 8.00pm.
The plaintiff’s marriage broke down in 2000. The plaintiff became the sole parent of four girls aged between 6 months and 11 years old. From 2000 onwards he was the sole carer for those girls. He managed to work part-time as a swimming coach for all of those years.
The plaintiff went through a two day induction when he went to Smeaton Grange. The first day was theory, where he was taught how to lift properly, including how to do squats and lunges. The second day was spent in the factory learning to drive the pallet machine. His job description was a picker packer.
Each day he started work at about 3.00pm. An afternoon shift manager told him where he was to work that afternoon. He drove a double pallet machine (DPM), which could hold two pallets on its tines.
The plaintiff and all of the other employees at Smeaton Grange who were picker packers worked with a voice pick system. This was a headset worn by the picker packer. Voice commands were heard in the headset and the worker would then go to a particular aisle and pick a prescribed quantity of certain goods, to make up an order.
The plaintiff drove the DPM around the aisles, picking and lifting stock off pallets and placing it on a pallet sitting on the tines of his DPM. This involved manually handling the boxes of goods stored in the warehouse. When each order was complete he wrapped the pallet and the goods on it in plastic.
There was a particular speed or rate at which the plaintiff and all other picker packers at Smeaton Grange had to work. It was described as a 100% rate, although there was no evidence in the case as to how many items had to be picked or packed to reach that rate. At the end of each day, each picker packer was told the percentage rate they had achieved for that shift.
Goods to be picked at the Smeaton Grange warehouse were kept on pallets. Picking was done from the ground level pallets. There were racks of pallets above the ground level, but they were storage levels. The plaintiff said that, when he stood on a pallet which was 15cm high, he could not stand up straight underneath the level above him. He said he had hit his head a few times when standing up. Not all of the second level pallets were at the same height. For example, he could not stand up straight on the pallets containing bottles of water, but in the chip aisle there was greater clearance and he could stand up straight underneath the second level of chips.
The plaintiff was asked about his understanding in respect of breakages. His understanding was that breakages were to be reported. If the breakages were in an unsafe area they would be pushed to the side by the picker packer. They would then be reported and a cleaner would come and clean up the breakages. He said that he had been told to leave breakages as they were and to report them to the clean-up people. This was not done through the voice headset but over phones which were positioned throughout the warehouse.
If he arrived at a pallet and there was broken stock on it, the plaintiff said that he tried to avoid the stock so that he was not cut or injured. If a picker packer dropped something and broke some stock, that had to be reported. However if he arrived at a pallet and there was already broken stock on the pallet, he would assume that it had already been reported by a previous person.
On 1 May 2015 the plaintiff commenced his shift at the normal time. About three and half hours into the shift he was directed by the voice pick headset to go to the aisle where the bottled water was kept on pallets. He had to pick up six boxes, each of which had 24 500ml bottles of water. Each pallet bay in the water aisle had two pallets side by side. He drove his DPM adjacent to these pallets and got off. He picked five boxes from the first pallet and stacked them on his DPM. He then turned to the other pallet to get the sixth box. The plaintiff said that there was a broken box of water bottles and that some water bottles had fallen out of the box. Some loose bottles were on the floor of the warehouse and some were on the pallet. There was one intact box of water bottles which was up the back of the pallet. That was the one the plaintiff wanted to get.
The plaintiff said that he spoke to Ms Whitby, the expert retained by the plaintiff’s solicitors. He told her what happened and the events which led to his injury. He was shown a diagram drawn by Ms Whitby in a report, and he said that diagram accurately depicted the set up on the day of the accident. He said that the diagram showed where the box of bottles was and showed roughly where the broken carton of bottles was at the front of the pallet.
When lifting goods or boxes from the front of a pallet the plaintiff had been taught to use a squat lift. When items were further back on a pallet he had been taught to use the lunge method. Of this he said (T 33/50):

“The lunge is a lunge technique, similar to how they do a lunge exercise. You step your foot – front foot forward, your back leg stays stable, you drop your back knee… so your body moves forward and lunges forward.”

The plaintiff said that you have to lift a box with your legs not your back. The plaintiff gave evidence that because of the broken box of water bottles on the front of the pallet, he had to approach the intact box at the rear of the pallet from an angle. He approached it from the right-hand side. He stepped onto the pallet. As he approached the pallet he moved the loose bottles which were on the warehouse floor out of his way with his foot. He moved them right up against the front of the pallet. He did not touch or move the loose bottles which were lying on the pallet itself. He moved to the right to come in diagonally. He put his left foot on the corner of the pallet and he stepped forward into a lunge position with his right foot. His right foot was probably about the middle of the pallet.
In examination-in-chief the plaintiff was taken to p 29D and Appendix 5 of the report of Ms Whitby (PX2 tab 1). He said that this diagram was prepared after he advised Ms Whitby about the manner in which he carried out the lift and that it accurately portrayed his positioning during the lift.
The intact box of water bottles was shrink-wrapped in plastic. On either side of the plastic there was a hole so that a person could put their hands into the holes and lift the box with a hand on each side in the handholds.
The plaintiff said that he lunged forward to reach out and was able to grab the hole in the right-hand side of the plastic wrapping of the box of bottles but he could not grab the left-hand side. He had to keep reaching out to just grasp the left-hand handle to pull it. He eventually got a good handhold with his left hand as well as his right. He said that the box was facing him before he lifted it and that he had “full balance”. He then said (T 38/41-39/10):

“Q.    Then having got in that position, what did you then do?
A.    Well, I pulled it towards me as I stood up. I carefully stepped back and –
Q.   In which direction did you turn or what happened?
A.   I tried to stand up and as I came out of the lunge I stood up and stepped backwards with the thing in my hand, stepped my right foot off the pallet. I had a look and I had to just duck my head just to step right off the pallet.
Q.   Were you turning to the left or right as you came off?
A.   I would have been turning to the left.
Q.   How did you go avoiding the unit of water that was still on the pallet?
A.   I was clear of that.
Q.   How did you know?
A.   Because I lunged and you can see by the position it was more to the left. I wasn’t near the water, the spilt water, at all.
Q.   How did you go getting off the pallet itself?
A.   Ok. I just stepped back.

The plaintiff also said (T 39/23-29):

“Q.   Did you notice something about yourself?
A.   As I stood up, the last second I just felt pain in my lower back, a sharp pain.
Q.   Then what did you do after that?
A.   So I turned. This was near the end of the order, so the gap was chest height right around the water [sic]. So I dropped the water on the pallet and I stood there for probably two minutes just to get the initial what’s going on in my brain [sic].”

The plaintiff reported that he had been injured to his Coles shift manager. He was put on lighter duties for the rest of the shift. By the end of the shift he felt like he was in shock and his heart rate was “through the roof”. The accident happened on a Friday afternoon. He took the weekend off. He was offered a shift on Monday but he knocked it back. On Wednesday he was offered another shift and that’s when he spoke to the Ready Workforce people. They sent him to Dr Abi-Hanna. He was referred for some physiotherapy and continued with this treatment for a few months. Eventually he was given some light work to do by Ready Workforce. This was in a rehabilitation centre. The plaintiff said that his lower back was sore and that he was getting mild nerve pain in the right leg. He described this as a “hot burning sensation that runs right down my left and right leg sometimes. It starts in the top and runs right down the inside.”
After a few months he went to his own GP Dr Chan who arranged a CT scan and prescribed Panadeine Forte for pain. There was an MRI scan of the back on 1 September 2015. He was then referred to a neurosurgeon Dr Abrasko who recommended an epidural injection, which occurred on 30 October 2015. That helped with the pain for about two weeks. There was a second injection into the lumbar spine on 13 November 2015 and this provided a good reduction of pain for about six weeks. Then the pain came back.
Dr Abrasko referred the plaintiff to Dr Manohar for pain management. Dr Manohar wanted to send the plaintiff for treatment which would cost $5,000. The plaintiff did not have that money. He decided not to see Dr Manohar any more.
The plaintiff started seeing a psychologist Ms Cuk for depression and anger issues. He had not been like that before the accident. He was struggling with pain and finding it hard to even get out of bed. He was depressed because he was limited in lots of things he could not do anymore. He saw Ms Cuk fairly regularly until the end of 2017.
The plaintiff said that he saw eight doctors and said that no-one wanted to help him because it was a workers compensation claim so doctors weren’t interested. Eventually he found a doctor who did help him - Dr Wong.
The plaintiff starting seeing a new psychologist but could only have a limited number of treatments through Medicare. Once he reached the prescribed number he stopped having consultations with the psychologist, whose first name was Nick. The plaintiff did not give his last name. He had seen Nick for about 18 months by the time of the trial.
Dr Abrasko sent the plaintiff for another MRI on 27 October 2017. There was another epidural injection on 30 November 2017. This provided relief for about six weeks.
The plaintiff said that he was now going to his GP about every three weeks to obtain pain medication. He was taking a painkiller Tramadol 150mg. He was also taking an antidepressant but he could not remember the name of that tablet.
The plaintiff said that he now had pain right across his lower back. He was in pain 70% of the time. There were some pain-free periods. Generally he woke up at night in pain and he needed a painkiller to start his day. Occasionally he got leg nerve pain which he described as burning and tingling. The right leg was a lot worse than the left. If he sits for too long his back seizes up. He cannot stand for more than 10 minutes or it hurts. There were restrictions on the housework he could do. One of his daughters still lives at home and she was doing the heavy work such as vacuuming and mowing the lawn.
The plaintiff said that he could not go back into his old job at Smeaton Grange. He was receiving unemployment benefits. He was looking for work but said he needed re-training.
The plaintiff gave evidence that while he was a casual employee at Smeaton Grange, Coles were offering 30 full-time jobs the week after his accident. He was doing his best to get one of those full-time jobs. He had obtained a forklift licence. He had also done a first aid certificate. He had a good reference from his shift manager. By 2015 he had only two children in high school and he would have been able to take on full-time work.
In cross-examination the plaintiff agreed that he had been taught to use the lunge technique to access goods which were at a low level. He was taught about squatting and lunging in the induction given by Coles. He said that it was very common to use the lunge technique in the course of his work at Coles. He had used the lifting and manual handling techniques taught to him by Coles when he worked at Smeaton Grange between 13 November 2013 and 1 May 2015. He never had any trouble implementing those techniques and he had never suffered any injury in that time.
The plaintiff was taken to a description of the accident recorded by Ms Whitby, the expert retained by the plaintiff’s solicitors. He was asked to read pars 38 and 39 of her report dated 25 April 2018. He was then asked questions about those paragraphs.
Paragraphs 38 and 39 of the Whitby report were as follows:

“38. Mr Gray stepped onto the pallet – his left foot remained at the front right-hand corner of the pallet and his right foot was placed mid-pallet. Mr Gray then adopted a lunge and reached forward and down, rotating the shelf tray of 24 water bottles counter-clockwise to bring it closer before grasping and lifting the unit.
39. As Mr Gray raised his trunk, he shifted his right foot backwards and stepped off the pallet with his left foot. Then as he turned counter-clockwise to clear racking above and resume an upright posture, his low back went into spasm. Mr Gray immediately dropped the product onto the pallet.”

The plaintiff agreed that that was how the accident happened (T 53/20).
After reading pars 38 and 39, the cross examination continued as follows (T 53/33-54/31):

“Q. Perhaps you're right, a bad question, I'll put it this way: If you look at paragraph 39, first sentence, you say you stepped off the pallet with your left foot. Is that right?
A. Yes.
Q. That's what it says. That was correct. You hadn't felt any pain at that stage?

A. Not at this stage, no.
Q. Yes? And then you turned counter clockwise to the left?
A. As I was coming out, it was sort of a half turn, yes.
Q. Yes. You turned and you started to resume your upright position. Is that right?
A. That's right.
Q. As you did so, you felt the pain in your back?
A. That's right.
Q. Correct?
A. Yes.
Q. So that you were - your left foot was off the pallet?
A. No, my right.
Q. When you felt the pain? Off the pallet?
A. I'd just stepped totally off the pallet.
Q. Yes?
A. Yes.
Q. And then you felt the pain?
A. Well, just around that, yes.
Q. So the racking was level with the edge of the pallet, wasn't it?
A. (No verbal reply)
Q. Being the shelf, the top shelf that your head was bumping into?
A. Yeah?
Q. That was level with the edge of the pallet, wasn't it?
A. Yeah, all the - it was a straight, that's right.
Q. So that the - when you felt the pain, you were away from the shelf, weren't you?
A. I'd just - just stepped up, just straightening up, that's correct.
Q. Yes, you'd stepped off the pallet, you'd got off the pallet at that stage?
A. That's right.”

The plaintiff was cross-examined about whether, when he lunged forward, he pulled the box towards himself. He said that he did not pull the box toward himself (T 56/15). He disagreed that his training had been that he should have pulled the box toward himself.
The plaintiff was cross-examined about the spilled water bottles. There was no water spillage as such, there were just bottles lying about on the floor and on the pallet. The bottles on the floor were pushed out of the way by the plaintiff using his foot. He said that the bottles on the pallet were a “hazard” (T 61/31). He said that they interfered with his lifting because he had to come in on an angle to make the lift. He was asked why he did not move the bottles and he said “because more bottles could have fallen out everywhere else and would have created more drama and made a very dangerous situation” (T 61/40).
He said that he did not move the loose bottles off the pallet and he had to manoeuvre around them. He was asked whether it was his job to report and remove damaged stock. He said his job was to pick and pack and the cleaning team had a job of removing damaged stock. His job was simply to report that there had been a breakage and the cleaning team would come and pick it up (T62/40).
The attention of the plaintiff was drawn to Coles Operating Procedure 14SG. This required workers to repack damaged stock and transfer it to a particular area. The plaintiff disputed that this was what he had to do. He said that the factory did not run like that (T 63/24). He said that while pieces of paper said that it was to be done that way, the practice in the factory was that the picker packers reported any damaged or loose stock and the cleaners came and picked or cleaned it up. He was not supposed to touch anything such as a breakage or damaged stock – (T 64/35).
The plaintiff acknowledged that he had been trained to try to get the load as close as possible to his body (T 65/10). He said that he thought he was close enough (T 65/35).
The plaintiff was taken to p 241 of the defendant’s Tender Bundle (DX2 tab 8). This was a Coles document concerning manual handling. The cross-examination on that topic was:

“Q. Well, can you just look under general. You’ll see it says, ‘Ensure you do not place yourself in a confined space and ensure the area is clear of clutter/hazards’. That right?
A. That’s right, yep.
Q. Well, these bottles represented a clutter, correct?
A. Yes.
Q. And a hazard as you just said?
A. Yes.
Q. And you didn’t clear them out of the way, did you?
A. It’s not my job to touch any broken merchandise. They have a cleaning crew that do that.”

There was further cross-examination about whether the plaintiff was close enough to the box to lift it from the lunge position (T 69/10-69/18):

“Q. But before you start to lift, you can pull the box of drinks closer to you, can't you?
A. Well, I didn't, I thought I was close enough.
Q. Yes, but you could've pulled it closer to you?
A. But I didn't, I thought I was close enough, I made the mistake to overreach.
Q. Sure, exactly, you made the mistake to overreach.
A. That's correct.”

It was suggested to the plaintiff that he could have brought the box of drinks closer but he said that he didn’t think of that (T69/43).
At this point in consideration of the cross-examination of the plaintiff, I pause to summarise the material at pp 240 (DX2 tab 7) and 241 (DX2 tab 8) of the defendant’s bundle upon which the plaintiff was cross-examined.
Page 240 was a Coles document entitled “Manual Handling (LOG 027)”. It contained four photographs on the right-hand side of the page of workers lifting and words on the left-hand side of the page. It was said to be a safe work practice which was compulsory for all team members.
The document said that a worker should “always assess the load and the distance to be travelled”. The document made the following points:

“Always check your destination point and that the path of travel is clear prior to attempting to move the load and determine best technique to safely lift or move the object e.g. squat, semi-squat, lunge etc.
Always get as close to the load as possible before you handle it.
Always bend your knees, not your back, brace your abdominal muscles and place your feet apart for good balance.
Always ensure the task/load does not require high force actions.
Always grasp the load securely with both hands and keep it evenly balance and close to your body.
Always raise your head and then lift the load to waist level by straightening your legs using smooth movements.”

Page 240 concluded as follows:

“Never twist your body whilst handling the load. Turn by moving your feet.”

Page 241 was a similar document entitled “Manual Handling 1st and 2nd Level Order Picks (LOG 026)”.
Under the heading “General” the document said:

“Park the pallet vehicle as close to the pick slot as practical to minimise the carrying distance of stock.
Keep the stock level, do not pick from just the front.
Ensure you do not place yourselves in a confined space.
Ensure area is clear of clutter/hazards, eg string, shrinkwrap, cardboard etc.”

The document then dealt with “First Level Picking” and “Second Level Picks”. From other evidence, it appeared that first level picking was handling goods from a pallet which was on the floor. Second Level Picking involved pallets which were raised up from floor level. It is to be noted that the water aisle did not have second level picking. All of the water was located on pallets on the floor, being a first level pick.
Under the heading “First Level Picking”, the document said:

“Before lifting heavy cartons/objects, assess the weight and determine the most suitable lifting technique to use (i.e. full squat, semi-squat or lunge position).
Always use correct manual handling techniques when working with the equipment. If the carton/object is too heavy, seek assistance from another person or use appropriate lifting equipment.
Use pick sticks instead of overreaching for stock, do not lift and rattle the gravity feed. Report any products that require excessive force to move or poor packaging (eg. too much glue, too heavy).
When spills and/or damage occurs, ensure the area is safe (i.e. place signage) and notify your Line Manager.
Beware of pallet condition (missing boards, nails, splintering).”

Under the heading “Second Level Picks” the document said:

“Notify your Line Manager when pallets need to be turned.
Eliminate glass from second level picks, where possible.”

The attention of the plaintiff was directed in cross-examination to the foot of p 240 which said “Never twist your body while handling the load – turn by moving your feet”. It was put to the plaintiff that he had not done that on this occasion but the plaintiff said that he did. He said that when he stepped off the pallet he was in a squatting position trying to stand up and he did not twist at all (T 71/45).
In cross-examination the plaintiff was taken back to p 29D of the Whitby Report. This showed a sketch representation of how the plaintiff was positioned to do the lunge lift. It was pointed out that the diagram showed the box of bottles square-on to the plaintiff. The plaintiff said that “I could be half way through the lift from that picture” (T 75/40). The plaintiff said several times that he “overreached”. The use of this term in answers given in cross-examination included:

“Q.   And that shows the unit you were lifting directly in front of you. Correct?
A.   This picture could have been half way through the lunge. When the unit was in front of me I overreached.” (T 76/4-6)
“Q.    Well, that’s what the diagram says?
A.   I overreached. That’s half way through a lift.” (T 76/34-35)
“Q.   Thank you. Do you accept that at some point, you brought the load directly in front of you?
A.   No. I tried – I overreached – the left hand onto it. I tried to come out of it straight away with a lift. I didn’t move the bottoms around. I overreached. I thought I was close enough and that’s how it happened.” (T 76/40-44)

In cross-examination the plaintiff then said that he had lifted the box when it was at an angle (T 77/11). He confirmed that he did not rotate the box toward himself so that it was square-on in front of him as it was shown in the sketch (T 78/20).
The plaintiff was asked whether there was anything stopping him from tidying up the bottles that were lying around and he said “Wasn’t my job” (T 80/3).
The plaintiff was cross-examined about applications he had made for employment since 2015. He had been to three job interviews. One was for a sales company, one was for a service station and another one was at a local hotel. He said that the hotel interview ended abruptly when he revealed that he had had a back injury.
The plaintiff was cross-examined about a report from the Occupational Health Assessment Centre (PX2 tab 13). The plaintiff’s solicitors sent him for that report in 2018. That report said that the plaintiff could be a swimming coach or instructor for 20 hours a week. The plaintiff said that he could do that, if he became re-qualified. All of his qualifications were out of date and he would need money to obtain new coaching qualifications.
The plaintiff was cross-examined as to why he never underwent a pain management course, but he said that this was recommended by Dr Manohar and he simply didn’t have the money for that course.
The plaintiff acknowledged that he had been a swimming coach for 25 years. This involved walking up and down the side of the pool observing children swimming. He could sit and watch children swimming to do that work. He supervised land-based strengthening exercises for the swimmers. The plaintiff denied that he told the vocational assessors that he was not looking for that sort of work because he had no interest or patience for that work. He said that he would do it, except that his qualifications were out of date. Cross-examination showed that he would need $1,500 to obtain certification as a coach and do a CPR certificate. The plaintiff said that he had not made enquiries about doing that sort of work because he did not have the money to obtain the necessary qualifications. He said that if he had the funds he would pursue his former career as a swimming instructor.
The plaintiff was cross-examined about the light work provided for him by Ready Workforce after his injury. He said that he could do that sort of work. The plaintiff also expressed an interest in doing youth counselling, but this was a full-time TAFE course and it required money.
The plaintiff acknowledged that he had been upset and angry when he had gone for various medico-legal assessments. He said, of his employer, that “They did throw me into the abyss”. The employer had sent a few text messages after the workers compensation payments ceased, but this was to go for an interview for factory work, and the plaintiff knew that he could not do such work. When he received those messages he was in a lot of pain and was struggling to even get out of bed.
The plaintiff said that he could cook a meal for himself. He had trouble doing the shopping as he could not carry heavy bags. He struggled to get through each day because of his depression and his back pain. The plaintiff acknowledged that he kept a pain diary. He spent most of his day playing on his phone. He did not watch TV because he could not concentrate on it. He said that he could not work as a forklift driver because he could not sit down for longer than 20 minutes without back pain.
When cross-examined about exaggeration, the plaintiff said that he had not exaggerated his level of pain at all. He had not refused any medical help, but there had been no help provided to him. He said that he needed to re-train. He said he was 55 years old and had 10-15 years of working life left in him. He did not want to sit around any longer and he wanted to find full-time work. His work in the past as a swimming coach had been part-time, but that was because he was bringing up four children by himself.
There was some additional examination-in-chief conducted by Senior Counsel for the plaintiff, part-way through the cross-examination. The plaintiff said that when there was downtime at the warehouse he and others would be sent to shift boxes from the back of pallets to the front of pallets. This was done manually. He was asked about using pick sticks to reach for stock, but he said that he did not know what a pick stick was. They were not provided to him.
I formed a favourable impression of the plaintiff in the witness box. He was a man without guile, who did his best to answer questions. He became somewhat combative and dismissive when being cross-examined, but nevertheless continued to do his best to answer questions truthfully.

Evidence of Mr Farr

Mr Andrew Farr was called as a witness for the plaintiff. He worked for Ready Workforce at Smeaton Grange between 2012 and 2015 as a picker packer. He had been taught to use the lunge method for lifting loads which were on the back of a pallet. He said that he could not stand straight up on the pallets as he would be hitting his head. As to broken or damaged stock, Mr Farr said that he was supposed to ring up the cleaners to come and clean it up so that he could keep up a fast pick rate. He said you had to move broken material aside and keep picking.
In cross-examination Mr Farr reiterated that damaged stock was collected by the cleaners and taken to a repack area. Sometimes he did that, but most times the cleaners did it. Mr Farr said that if he finished his picking work, and there was an hour to go, sometimes he and others would go and pick stuff up and take it to the repack bay. However, if there was picking work to be done, he would just ring up and get the cleaners to pick up any damaged stock.
I accept Mr Farr as a witness of truth.

Expert evidence on liability for the plaintiff

The plaintiff relied upon two expert reports by Ms Whitby, a certified professional ergonomist. In her first report dated 25 April 2018 (PX2 tab 1), Ms Whitby said that the risk of musculoskeletal injury affecting the lower back “could have been eliminated had [Coles] implemented pallet turning”.
The assumed history of the incident is contained in pars 38 and 39 of the Whitby report, which have been set out in full above.
In par 59 of the report Ms Whitby assumes that Mr Gray rotated the box of water bottles and pulled it forward on the pallet to facilitate a grip, before he lifted. This is what Mr Gray denied in cross-examination.
In par 60 of the report Ms Whitby confirms her understanding, obtained from a statement given by Mr Gray, that:

“He then took a step to the left with his left foot, turning his head, trunk and the load counter clockwise to clear the racking. It was as he did this he experienced the spasm in his low back.”

In par 78 of the report Ms Whitby says that the lunge was performed at an angle that increased the reach distance to the load. It was her opinion that the increased reach distance resulted in the load becoming unsafe. Mr Gray had to approach the load on an angle, because of the broken box of bottles on the front of the pallet.
The alternate method of work identified by Ms Whitby in the report is set out at pars 106-110. Pallet turning involves using a pallet jack to extract the pallet from the pick bay, rotating it through 180 degrees, dropping it on the warehouse floor, going to the opposite side of the pallet, lifting the pallet and then returning it to the slot in the pick bay. Ms Whitby says that there were pallet jacks available at Smeaton Grange so there was no cost for equipment. There would need to be additional workers allocated to this task, rather than interrupting the work of picker packers to perform the turning task. Turning pallets through 180 degrees reduces the reach distance to stock and eliminates the need for workers to walk in over the pallets. Ms Whitby said that “pallet turning is a strategy that has been around for many years and is recommended in order-picking guides from workplace safety regulators in the UK and Australia”.
The report of Ms Whitby makes it plain that the key benefit of pallet turning is that a picker packer does not need to reach an excessive distance to get to a load at the back of a pallet.
Reference has already been made above to the sketch representation drawn by Ms Whitby at Appendix 5 of her report (p 29D of PX 2 tab 1). The sketch shows a side view and an overhead view of the lunge used to reach the box of water bottles. It assumes a distance between Mr Gray’s centre of gravity (taken to be a point between the forward leg and the rear leg), and the centre of the box of bottles, of 700mm. Ms Whitby says that this is a dangerous distance at which to conduct a lift.
However consideration of the sketch makes it plain that the option of pulling the box of bottles closer, or of approaching closer to the box of bottles, was available to Mr Gray. There was room for him to step further forward which would have reduced the distance of 700mm. In the alternative, he could have pulled the box of bottles closer toward him and reduced that distance.
The second report of Ms Whitby is dated 11 April 2019 (PX2 tab 2) and it responds to a report by Dr Fairfax, the defendant’s expert. Ms Whitby agrees with Dr Fairfax that had Mr Gray moved the box forward that would have decreased the reach distance. Ms Whitby concurs with Dr Fairfax that a lunge is an acceptable technique for lifting the box from the base level of the pallet. Ms Whitby confirms that working on an angle is not a criticism of the work practice as order pickers often approach the pallet in a variety of ways depending on where the product to be picked is located and where they have positioned the DPC in relation to the product on the pallet.
Ms Whitby reiterated that the issue was that approaching the box on an angle increased the distance to the product “which in this instance Mr Gray was not able to overcome because of damaged stock on the pallet”. Why that was so, in the light of the sketch in the first report, is not apparent.

Lay evidence on liability for the defendant

The defendant called Mr Peter Tryhuba who is the Assistant Manager for Coles at Smeaton Grange. He said that in 2014 he measured the height of all of the racking at Smeaton Grange. From the ground level to the top of the first beam above ground was 2100mm. Each beam was 110mm in height, leaving a space from the floor of the warehouse to the underside of the beam of 1990mm.
Mr Tryhuba said that there were 42 aisles, all containing two-pallet pick bays. There were roughly 5,000 lines of products in the warehouse. The warehouse turned over 3,000 pallets of stock per day on average. The aisles were three metres in width.
Mr Tryhuba was cross-examined about the height of the first level beams. He said that not all were 2.1 metres in height. He said that the beams in aisles 40 and 41 were 75mm lower. He said that the height of a pallet was 150mm.

The defendant also called Ms Sally Paguirigan. She is now employed by Coles but in May 2014 was employed by Chandler Macleod. She moved from Chandler Macleod to Coles in November 2014. For Chandler Macleod she worked at Smeaton Grange as an on-site consultant. She took care of the casuals and did the daily rostering and performance managing. At the time Chandler Macleod had about 60 employees working at Smeaton Grange but sometimes it increased to about 90.
One of her tasks was to manage the work performance of the Chandler Macleod employees. She received reports each day about the percentage pick rates of each employee. She discussed appropriate performance levels with any employee not achieving the requisite percentage. If there was a problem she told the Coles manager about it. Ms Paguirigan said that she did her own safety observations each day by walking around the warehouse. She did not do any of the training of the Chandler Macleod staff as this was done by Coles.
Ms Paguirigan was cross-examined by Senior Counsel for the cross-defendant. She said that she had an office at Smeaton Grange which she used from time to time. She had her computer and her own office materials there. She kept that work site clean and tidy. Coles prescribed the pick rate and monitored the pick rate. If the pick rate was not up to standard, then someone from Coles would speak to her, and she would take it up with the Chandler Macleod employee.
Ms Paguirigan was cross-examined by Senior Counsel for the plaintiff. She said that about 60-70% of each day was spent on the floor of the warehouse and the rest in the office. She tried to speak to all of the Chandler Macleod employees each day. This was mainly for the purpose of confirming rosters for the following day. She was assessing whether they were available for work, as well as their performance.

Expert evidence on liability for the defendant

The defendant tendered the report of Dr Ann Fairfax dated 26 February 2019. Dr Fairfax is an Adjunct Professor at the University of New South Wales. She has a Doctor of Philosophy from the Faculty of Biomedical Sciences at the University of Sydney and a Master of Safety Science from the University of New South Wales. She conducted a site inspection at Smeaton Grange on 17 December 2018.
Dr Fairfax based her report upon the version of the accident given by Mr Gray to Ms Whitby which is referred to above. Dr Fairfax noted that the Safe Operating Procedure for Manual Handing in which the plaintiff was trained by Coles, listed key steps as:

Position your feet close to the object;

Hold the carton or object close to your body;

Avoid twisting at the waist.

Dr Fairfax included in her report Standard Operating Procedure SOP038SG. This listed eight steps for manual handling. Step 7 was:

“Turn your feet in the direction of travel. Avoid twisting at the waist and move your feet to change direction.”

In s 3.1.5 of the report Dr Fairfax indicated her understanding of the description given by Ms Whitby. The last step in the lift was turning and straightening up. This was when the plaintiff’s low back spasmed. Dr Fairfax pointed out that if the plaintiff had stepped back completely onto the floor, he was outside the pick bay footprint and was thus completely clear of the racking. There was then no restriction on him standing up straight.
Dr Fairfax said that a position of forward flexion and rotation is the most unstable position for the spine and puts the low back at risk of injury. As Dr Fairfax understood it, the plaintiff was turning and straightening up from the forward flexed position when his back went into spasm.
Dr Fairfax pointed out that if the plaintiff had been concerned that the broken pack of bottles might impact his lifting style, he could have pushed the broken pack out of the way. She said that it was common practice for an experienced picker packer to move onto a pallet from an angle as this often represented a shortcut from the pallet truck to the carton and back. She did not consider that approaching the pallet from an angle was in any way unsafe and did not believe that this action forced the plaintiff to adopt an unsafe or adverse posture when picking up the pack of water. Dr Fairfax said that it was necessary to adjust the angle of the item to be lifted in order to face it directly. To her understanding the plaintiff did this when he rotated the pack. That was also an assumption made by Ms Whitby, but the plaintiff, as recorded above, denied that in his evidence.
Dr Fairfax said that the plaintiff should have been facing the pack straight on and the pack of bottled water should not have been at any significant distance away from his body. If those things had been done it would have been a safe lift. There would not have been an excessive reach distance. Bringing the pack closer would have reduced the reach distance. Dr Fairfax pointed out that if the pack of bottled water had been slid even further to beside the right foot (the foot which was placed forward in the lunge) the reach distance would have been much less again. She said that the plaintiff should have moved across the pallet to position himself as close to the load as possible. The plaintiff kept his left foot on the corner of the pallet throughout the lift which meant that he had to bend right forward to reach the load. Dr Fairfax said this was a poor manual handling technique and was not in keeping with the training or the Coles Safe Operating Procedures.
Dr Fairfax agreed with Ms Whitby that the lunge is an acceptable movement from an ergonomic point of view. She said that if the plaintiff felt the pack of water was too far away he should have stepped closer, and not kept his left foot stationary on the front corner of the pallet.
Dr Fairfax indicated her understanding, based upon the history recorded by Ms Whitby, that it was when the plaintiff straightened up and rotated his spine that the injury actually occurred. This was a most unstable position for the spine. Dr Fairfax said that it represented a failure on the part of the plaintiff to use correct manual handling techniques in accordance with his training.
Dr Fairfax did consider the suggestion by Ms Whitby that the pallets could be turned around. She thought that a picker packer, using the DPM, would have to do the pallet turning. However, the report of Ms Whitby suggested that additional workers should have been employed just on the task of pallet turning, so that the picker packers were not slowed down in their tasks.
Dr Fairfax concluded by saying that the defendant had safe systems in place. It provided manual handling training at induction and at other times. In her view the defendant had safe work practices in place and trained staff in those practices.

Liability – Findings of Fact

I have already found that the plaintiff is a person who came to court trying to tell the truth. Where there are conflicts between his version of how the incident occurred, and the version he gave to Ms Whitby, I propose to accept the version given to Ms Whitby. It was given earlier in time. Further, if the plaintiff had given instructions that the version adopted as correct by Ms Whitby was wrong, no doubt that would have been put to her and she would have been asked for an amended report. When the version recorded by Ms Whitby was put to the plaintiff in cross-examination, he accepted that it was correct.
I have found that Mr Farr was a witness of truth. In particular, I accept his evidence that while the Coles written procedure may have been that damaged stock should have been collected by the picker packers and returned to a repack area, the practice at Smeaton Grange was that the picker packer should call a cleaner on a telephone, and the cleaner would attend to clean up any spillage or breakage. This was also the evidence of the plaintiff. Mr Tryhuba, who was called by the defendant, did not give evidence to the contrary and was not asked about that topic. He would have been in the best position to say, if it were the case, that the written procedure in relation to cleaning up breakages was followed as a matter of practice at Smeaton Grange.
I make the following findings of fact:

The plaintiff was employed by Ready Workforce as a picker packer at the Smeaton Grange warehouse of the defendant.

He commenced working at Smeaton Grange in November 2013.

The plaintiff went through a two-day induction course. The first day was theory, during which the plaintiff was taught how to lift and manually handle goods in the warehouse. This included the plaintiff being taught how to do squats and lunges.

The plaintiff operated a DPM. He was directed by means of a voice pick system, operated and provided by the defendant, to drive the DPM up and down the aisles at Smeaton Grange.

The plaintiff was directed by the voice pick system to select goods which were stored in pallet bays, manually handle those goods and place them on a pallet on his DPM.

The voice pick system told the plaintiff where to go and what to put on the DPM.

After the plaintiff finished making up an order carried on a pallet on his DPM, he wrapped it in plastic.

The plaintiff would then set off to make up his next order, in accordance with the voice pick instructions.

At about 6.30pm on 1 May 2015 the plaintiff drove the DPM into the aisle in which bottled water was stored.

He parked the DPM adjacent to a two-pallet pick bay containing boxes of bottles of water. In each box there were 24 500ml bottles of water. Each box weighed just over 12 kilograms.

The plaintiff was directed to pick up six boxes of bottled water and place them on his DPM.

The plaintiff picked up five boxes of bottled water from the right-hand pallet in the pick bay and placed them on the DPM, without incident.

The sixth box of bottled water was on the left-hand pallet in the pick bay.

The box which the plaintiff wished to retrieve was located at the rear of the pallet.

Near the front of the pallet there was a broken box of bottled water. Some of the loose bottles had fallen onto the floor of the warehouse, adjacent to the pallet. Some were lying on the pallet itself. There were some bottles still in the broken box. The plaintiff moved the water bottles lying on the floor of the warehouse out of the way with his foot. He moved them up against the pallet.

The plaintiff did not take any steps to move the broken box or the loose bottles which sat on the pallet.

The plaintiff stepped onto the pallet. He placed his left foot at the right front corner of the pallet and stepped forward while lowering his body. This brought his right foot towards the target box of bottled water.

By doing this the plaintiff was adopting a lunge position. The lunge position was the method taught to him by the defendant during his induction. It was the approved method for manually handling goods which were stored at the rear of the pallet or in a confined space.

There was insufficient room for the plaintiff to stand straight up on the pallet, without a risk of striking his head. In this regard I accept the evidence of the plaintiff and Mr Farr that it was not possible to stand up on the pallet without from time to time striking one’s head. This necessitated the use of the lunge position rather than the squat lift.

The plaintiff put his right hand into the handhold on the box of bottled water but had trouble reaching the left handhold, as the box was on an angle away from him.

The plaintiff dragged the left-hand side of the box toward himself, but whether he did this with the box on the pallet, or did it during the course of the lift I cannot say. In any event, it does not matter.

The plaintiff could have positioned himself closer to the box of bottled water by stepping further forward with his right foot. The plaintiff could have brought himself closer to the box of bottled water, as he had been instructed to do during the induction by the defendant.

While still in the lunge position the plaintiff moved backwards, while carrying the box, with his torso bent approximately parallel to the ground.

The plaintiff stepped off the pallet.

After stepping off the pallet the plaintiff started straightening up and turned to his left during the course of straightening his back.

This part of the manoeuvre was contrary to safe practice and contrary to the way in which the plaintiff had been trained in manual handling by the defendant.

Since both feet were off the pallet at that point, the plaintiff had no restriction in standing up, as he was clear of the overhead racking.

Liability – Consideration

Section 5B of the Civil Liability Act 2002 (NSW) (CLA) provides as follows:

5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

The risk is pleaded in the Further Amended Statement of Claim as follows (par 11):

“The Plaintiff alleges that the manual handling required the Plaintiff to adopt ergonomically unsafe and adverse postures and movements whilst picking the pack of water that exposed the Plaintiff to a risk of harm of sustaining musculoskeletal injury affecting his lumbar spine.”

The two experts agreed that there was a risk of sustaining an injury to the lumbar spine if unsafe or adverse postures and movements were adopted. The whole point of manual handling training was so that workers knew how to lift properly, and could avoid unsafe methods of lifting. I find that the pleaded risk was foreseeable, and was in fact known to the defendant.
I also find that the risk was not insignificant. Lifting a weight without adopting a safe lifting technique is an accident waiting to happen.
In considering whether in the circumstances a reasonable person in the position of the defendant would have taken precautions against a risk of harm, the matters set out in s 5B(2) have to be considered. The probability that the harm would occur if care were not taken is a significant probability. The likely seriousness of the harm is that a person can suffer a serious and debilitating lower back injury. The burden of taking precautions to avoid the risk of harm is considered below in relation to certain of the pleaded precautions. The social utility of the activity that creates the risk of harm is not relevant, as the defendant was conducting a commercial operation for profit.
In considering the issue of liability, regard must be had also to s 5C of the CLA which provides:

“5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

These matters will be considered below in respect of certain of the pleaded precautions.

As I understand the decisions of the Court of Appeal in cases such as Bunnings Group Limited v Giudice [2018] NSWCA 144, the task for the court is to go through each of the precautions which the plaintiff says should have been taken, and analyse each precaution with s 5B and s 5C of the CLA in mind. Some of the pleaded precautions fail at the outset because of lack of evidence.
The particulars of breach of duty are pleaded in par 12 of the Further Amended Statement of Claim. I will deal with each of them in turn.
Particular (a) is “Failure to institute or maintain a safe system of work”. Particular (b) is “Failure to provide the plaintiff with a safe place of work”. Particular (n) is “Allowing the plaintiff to pick a pack of water bottles when it was unsafe to do so”. Particular (u) is “Exposing the plaintiff to a risk of injury that could have been avoided with the exercise of reasonable care on the part of the defendant”.
These four particulars do not require analysis. They are not pleadings of reasonable precautions which the defendant should have taken. Rather, they are overarching statements of the existence or breach of a duty of care.
Particular (c) alleges failure to carry out a risk assessment. This was not a case run by the plaintiff and was not supported by any evidence given by an expert. This particular has not been made out.
Particular (d) refers to a failure to take heed of a WorkCover Code of Practice. This was not a case run by the plaintiff and it was not supported by any expert evidence. This particular has not been made out.
Particular (e) is “Requiring the plaintiff to adopt adverse postures and movements associated with the moving of the pack of water underneath the pallet racking”. There is no evidence to support this particular. The evidence is that the plaintiff was required to adopt appropriate safe postures and movements when handling the box of water. Both of the experts agreed that the lunge technique was the appropriate method for handling the box. This particular has not been made out.
Particular (f) is “Requiring the plaintiff to manually handle the pack of water bottles underneath the pallet racking when it was unsafe to do so”. There was nothing in the evidence to suggest that the height clearance under the pallet racking was unsafe, or that it was unsafe to manually handle the box of water bottles while adopting the lunge technique because of the restricted height under the pallet racking. This particular has not been made out.
I will return later to particular (g), as it does require analysis in accordance with s 5B and s 5C of the CLA.
Particular (h) is “Failure to replenish the pallets containing the packs of water bottles, to ensure that the plaintiff was not required to adopt ergonomically unsafe postures whilst picking the pack of water bottles underneath the pallet shelving”. There was no evidence to suggest that it was a good or necessary practice to replenish the stock of boxes of water bottles on the pallets. This particular has not been made out.
Particular (i) is “Failure to remove damaged or broken water bottles on or around the pallet, to enable the plaintiff to access the pack of water bottles, without need to adopt ergonomically unsafe and adverse movements whilst avoiding the damaged and broken water bottles”. The written procedures of the defendant required the plaintiff, as a picker packer, to remove the damaged or broken water bottles. However, as I have found, the practice in the defendant’s warehouse was to ring up the cleaners and get them to do it. However, as Dr Fairfax said, there was nothing to stop the plaintiff from moving any loose or damaged water bottles out of the way. He did in fact move the loose bottles which were on the warehouse floor simply by kicking them out of the way. He could have moved the bottles on the pallet in a similar fashion. He could have shifted the box containing the remaining bottles with little or no effort. It would have taken only a matter of seconds. There was no reason why he could not do so. This particular fails on the facts.

Particular (j) is “Failing to ensure that there was a dedicated cleaner to remove damaged or broken product so as not to expose the plaintiff to a risk of injury”. The evidence is that there were dedicated cleaners at the warehouse whose job it was to remove damaged or broken product. There is no evidence how long the damaged and loose water bottles had been on the pallet before the plaintiff arrived with his DPM. This particular fails on the facts.
Particular (k) pleads a failure to supervise the picking work so as to detect the fact that broken or damaged product was left on or around the pallets. This particular fails. The plaintiff saw that there were loose water bottles and a broken box of water bottles sitting on the pallet. He did not need a supervisor to detect that. This particular has not been made out.
Particular (l) refers to a failure to train the plaintiff with respect to the correct technique for picking up the box of water bottles. The evidence of the plaintiff himself, as well as of the two experts, is that the plaintiff was taught the correct technique. This particular fails.
Particular (m) alleges that there was a failure to train other pickers to reinforce the need to report broken and damaged stock. There was no evidence of any such failure. In fact, Mr Farr, who was called as a witness by the plaintiff, said that he too knew that there was a need to ring up the cleaners and report broken or damaged stock. This particular fails on the facts.
Particular (o) is “Requiring the plaintiff to work underneath the pick bays that were low and required the plaintiff to stoop and assume ergonomically unsafe and adverse postures and movements to pick the pack of water bottles”. Neither expert said that the pick bays were too low. Neither said that there was a need to assume an ergonomically unsafe posture to work underneath the pick bays. Both experts said that the lunge technique was the appropriate method for working in those circumstances. This particular has not been made out.
Particular (p) is “Failure to ensure that the packs of water bottles were oriented on the pallet so as to eliminate the need for the plaintiff to adopt adverse postures to pick the packs of water”. The job of orienting packs of water bottles on the pallet fell to the plaintiff himself. He could have easily pulled the left-hand side of the target box of bottles so that it was square-on to him. If he did not do so, that was his own failure to follow good practices, which he had been taught. This particular fails on the facts.
Particular (q) is “Failure to provide the plaintiff with a hook or hoe to latch onto the pack of water bottles, so that they may be brought towards the front of the pick bay and enable easier access for the plaintiff to pick the order”. There was no evidence that a hook or hoe or latch was an appropriate instrument to use to pull a 12 kilogram box of water bottles towards the front of the pallet. Neither expert said that it was necessary. Both experts said that the lunge technique was an appropriate way to lift an item which was at the back of pallet. This particular has not been made out.
Particular (r) and particular (s) plead that there was some lack of reasonable care in the pick rate required of the plaintiff by the defendant. This was not a case run by the plaintiff and there was no evidence to support it. These two particulars fail.
Particular (t) refers to a risk management approach and to cll 60 and 61 of the Work Health and Safety Regulation 2011 (NSW). There was no evidence of the need for a risk management approach in accordance with those clauses of the Regulation, and neither expert said that such an approach was necessary. This particular has not been made out.

Pallet turning

I return to particular (g) which is “Failure to rotate the pallets onto which the water bottles were placed to ensure that the water bottle(s) could be picked by the plaintiff in close proximity to the front of the pick bay so as to avoid the risk of injury to the plaintiff”. Pallet turning was the solution proposed by Ms Whitby. Dr Fairfax said it was not appropriate.
Paragraph 106 of the Whitby report said:

“A key prevention strategy would have been to turn pallets when the face of the pallet projects beyond the mid-point of the pallet. Pallet turning involves using a pallet jack to extract the pallet from the pick bay, rotating it through 180 degrees and then returning it to its slot in the pick bay.”

The obvious benefit of pallet turning would be that there would never be the need for a picker to access the rear of a pallet to pick up a product. However, there was no evidence as to whether or not a lunge technique would still be necessary to access goods which, for example, were half way back along the depth of the pallet. Further, there was no evidence that the squat lift, which could be used from the front of the pallet, was any more or less safe than the lunge lift used to access goods at the rear of the pallet.
Would a reasonable person in the position of the defendant, have taken the precaution of implementing pallet turning? Section 5B(2)(c) requires the court to consider “the burden of taking precautions to avoid the risk of harm”. There was no evidence to analyse the burden of taking precautions. It was plain from par 107 of the Whitby report that there would need to be additional workers allocated to the specific task of pallet turning. How many would have been needed at Smeaton Grange, and what the cost of those additional workers would be, was not the subject of any evidence. Further, it is not hard to imagine that putting additional workers, armed with pallet jacks, onto the task of turning pallets, could cause additional problems. There were already DPMs going up and down the aisles carrying out the task of picking and packing. There was a pick rate required of the pickers. Pallet turning would have required a worker to in effect block an aisle by pulling out the pallet, putting it on the ground, driving the pallet jack around the opposite side of the pallet, lifting it up, and placing the pallet back in the pick bay. Pallet turning may have led to the need for the re-design of the whole picking and packing system at Smeaton Grange, so as to accommodate the delays which would inevitably be caused by the pallet turners. Of course, having additional people working in the aisles, using equipment and turning pallets, could have also increased the risk of collisions and personal injury.
Ms Whitby in par 107 refers to pallet turning having “significant postural benefits”, although she does not indicate what they might be. Ms Whitby also indicates that pallet turning “reduces the reach distance to stock”. However, the reach distance to this particular box of water bottles could have been reduced by the plaintiff, in accordance with the defendant’s Standard Operating Procedures, getting his body as close to the box as possible.
Pallet turning still leaves a worker with the task of picking a box up from a pallet and manual handling it. Section 5C(b) of the CLA provides that the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. There is no evidence that pallet turning, being a different way of doing something, would have avoided the risk of harm. Ms Whitby does not say directly that it would have even reduced or minimised the risk of harm.
My conclusion on particular (g) and on pallet rotation is that I am not satisfied that in the circumstances, a reasonable person in the position of the defendant would have adopted pallet turning. This particular therefore fails.

Conclusion on Liability

The end result is that the plaintiff has not made out a case in negligence and his claim against the defendant therefore fails. There will be judgment for the defendant and an order that costs follow the event.

Theoretical Assessment of Damages

I have found that the plaintiff has failed on his claim against the defendant. In case that finding should be successfully challenged on appeal, I now make a theoretical assessment of the plaintiff’s damages.
The evidence of the orthopaedic specialists was all one way. The plaintiff tendered the reports of Dr Bodel, orthopaedic surgeon and the reports of Dr Stephen, orthopaedic surgeon. The reports of Dr Stephen had been obtained by the solicitors for the defendant.
The plaintiff first saw Dr Bodel on 7 March 2016. The plaintiff’s complaints then were a constant dull aching pain in the lower part of the back, radiation of the pain into the right buttock and the sacrococcygeal region, numbness and tingling and a burning sensation radiating down both legs, and an inability to sit or stand for more than 20 minutes. The plaintiff was taking Lyrica 75mg twice a day and Tramadol 150mg twice a day. A CT scan of the lumbosacral spine dated 28 August 2015 showed some central bulging of the L5/S1 disc. An MRI scan of the lumbosacral spine dated 1 September 2015 showed a central and right-sided disc prolapse at the L5/S1 level but no definite nerve root compromised. There was an annular tear at that level.
In summary the opinion of Dr Bodel was that the plaintiff had pain but no objective sign of radiculopathy. He was fit for light duty work that avoided repetitive bending, twisting or lifting. He was certainly not fit to work as a picker packer. He could not do stores work and would need to be re-trained to find appropriate alternative duties. This impairment was permanent.
Dr Bodel saw the plaintiff again on 29 August 2018. The plaintiff told Dr Bodel that there had been no real change in his clinical circumstances since he was last seen. The doctor thought that the prognosis remained guarded, and that the plaintiff was still symptomatic. The diagnosis was mechanical backache and right-sided sciatic pain. The plaintiff was not fit to work as a storeman or a packer or any other activity that required him to bend, twist and lift in an unprotected manner. The plaintiff would be capable of permanently modified lighter duty activities. He needed re-training.
Dr Bodel’s opinion regarding future treatment was as follows:

“In the future he will need conservative care with rest and analgesic medication and exercise. Improved core strength and physical fitness in general will assist his outcome. He will need further pain management treatment over time. I think it unlikely that he will ever require surgery.”

Dr Stephen saw the plaintiff on 10 July 2018. He found mild wasting of the right calf. There was tenderness at the lumbosacral junction. The diagnosis was mechanical low lumbar back pain with occasional radiation to the right lower limb, possibly representing intermittent right S1 nerve root irritation. Dr Stephen thought it likely that the pain was discogenic. He thought that the plaintiff had sustained minor damage to the lumbosacral disc in the lifting incident.
Dr Stephen was of the view that the plaintiff was fit for light to moderate work with the avoidance of prolonged sitting and standing and repeated bending and lifting and working in confined spaces. Dr Stephen remarked that the plaintiff “does appear somewhat symptom focussed”.
In a supplementary report dated 6 March 2019, Dr Stephen was asked to identify the point in the lift when the plaintiff suffered his back injury. He said:

“Concerning the report of Ms Whitby, I have to say that the exact mechanism of the back injury and the exact nature of the back injury remains unclear. What is clear is that Mr Gray did sustain a back injury at work and that he still has back pain. Exactly how the injury occurred cannot be ascertained with certainty. That the injury did occur whilst at work is an undeniable fact.”

At the request of the defendant’s solicitors the plaintiff saw Dr Samuel, clinical and forensic psychiatrist, on 6 March 2019. The plaintiff told Dr Samuel that he was taking an antidepressant but that it was not working well. The plaintiff acknowledged that he was feeling angry when he did not have control. The plaintiff told Dr Samuel that he had been seeing a psychologist named Nick for eight to nine months because of his anger. It was noted that there no reports from that treating psychologist. The plaintiff reported that he felt depressed and degraded because he had to lie around most of the day and did not have money. He was frustrated. He said that he had had four years in pain and that his insurer claimed that he faked the injury.
Dr Samuel was of the view that the plaintiff did not sustain a psychological injury as a result of his employment. There was no psychological restriction on him returning to work. Dr Samuel did say that the plaintiff was “experiencing common distress in relation to the alteration of his physical functioning”. He thought that it was appropriate for the plaintiff to see a psychologist to help him with his adaptation.
Both the plaintiff’s solicitors and the defendant’s solicitors sent the plaintiff for assessment of vocational capacity. Having regard to the opinions of the two orthopaedic surgeons concerning permanent restrictions on working capacity, it is not necessary to go into detail about those reports. They do helpfully provide figures for earnings in various occupations. A swimming coach earns more ($1,153 per week) than a packer ($933 per week).
The plaintiff’s experts recommended a pain management program ($10,000), psychological counselling ($2,500) and a supervised gym program ($2,500 plus $1,200 per annum for ongoing gym membership and supervision of an exercise program).
In relation to the cost of re-qualifying as a swimming coach, the plaintiff gave evidence that the cost would be $1,500.

Non-Economic Loss

The assessment of damages for non-economic loss is governed by s 16 of the CLA. The plaintiff submitted that non-economic loss should be assessed at 30% of a most extreme case. The defendant submitted that non-economic loss should be assessed at 20% of a most extreme case.
The plaintiff was fit and well prior to the lifting incident at Smeaton Grange. He had managed to bring up his four daughters on his own as well as working part-time in a variety of jobs to suit his family circumstances. He had done the physical work at Smeaton Grange with no difficulty whatsoever for some time before the lifting incident. He was a willing and able worker in all respects.
The orthopaedic opinions in the case are to the effect that he has suffered a disc injury at the lumbosacral junction. He has constant pain at that level of his back and has tingling, burning and pain intermittently travelling down both legs, but the right more than the left. He now takes strong pain medication. Further, the plaintiff has become depressed and miserable as a result of being unable to cope with the pain or improve his condition. He has become fixated on his pain and he feels that the doctors, his employer and the workers compensation insurer have abandoned him.
The plaintiff now cannot do the job as a picker packer or any similar task which involves bending, lifting or twisting. He can do lighter or sedentary work, but he needs re-training to do so. He has not had the money to do that, and his lack of employment has no doubt contributed to his depression and anger.
Taking those matters into account, I find that the plaintiff’s non-economic loss should be assessed at 30% of a most extreme case. On the tables, this is a figure of $151,500.

Past Out-of-Pocket Expenses

The parties agreed on a figure for past out-of-pocket expenses of $16,011.61 (T 200/46).

Future Out-of-Pocket Expenses

There was general agreement on all the expert evidence that the plaintiff requires a pain management program, consultations with psychologists, and re-training. The evidence was that he needs to regain his coaching and first aid qualifications to become a swimming teacher or instructor. This was a job that the plaintiff said that he could do and that he would do if he re-qualified. It is appropriate to include a figure for re-training in future out-of-pocket expenses. Having regard to the fact that there is general agreement that the plaintiff needs physical and psychological treatment to deal with his pain and hopefully to wean himself off the strong pain medication which he takes, I propose to also allow a figure for a gym program for a period of two years.
For future out-of-pocket expenses the following amounts are assessed:

Pain management course

$10,000

Psychological treatment

$2,500

Gym program

$3,700

Re-training as a swimming coach

$1,500

Total

$17,700

Future Care

The plaintiff claimed two hours per week at commercial rates. One of the plaintiff’s daughters lives with him and she performs the heavier tasks around the house. There was no evidence that this arrangement would not continue. In addition, if the plaintiff were to have rehabilitation as recommended, he would be better placed to do more around the house. I do not allow any figure for future care.

Past Economic Loss

Section 13 of the CLA governs the assessment of future loss of earning capacity and provides:

“(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)   When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3)   If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

The operation of s 13 of the CLA, which is in identical terms to s 126 of the Motor Accidents Compensation Act 1999 (NSW), has been considered and clarified in many well-known Court of Appeal cases. I respectfully adopt the approach extracted from those cases and set out in the judgment of Justice Hoeben in Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098 at [216]. That approach is as follows:

The court must assess the “most likely” of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration);

Assess the plaintiff’s economic prospects as a consequence of the accident;

Compensate the plaintiff for the difference between (1) and (2) including, where appropriate, the use of a buffer;

Adjust (3) by an appropriate percentage for vicissitudes, to reflect the possibility that the plaintiff may not have achieved (1) even had the accident not occurred;

Include a statement of the assumptions made as to the plaintiff’s most likely future circumstances on which the award was based and the relevant percentage adjustment.

I make the following findings:

The plaintiff was intending to apply for one of the permanent jobs on offer in the week after his injury was suffered. The plaintiff would have obtained a permanent job. He had a forklift licence and a first aid certificate. He had a good reference from his shift manager. His two youngest daughters were in their last years of high school and he could go back to full-time work. He had an excellent work history. Mr Tryhuba gave no evidence to gainsay the plaintiff’s evidence that he had good prospects of obtaining a full-time Coles job.

As a result of his lifting injury the plaintiff has not been able to work since he suffered his injury. He has genuine lower back pain. He has not improved as he has not been able to afford necessary medical treatment, including a pain management course. His employer and its insurer would not pay for appropriate treatment. He has not had the funds to re-qualify as a swimming coach. He has been depressed and takes an inordinate amount of opioid painkillers.

In relation to the broken box of bottles on the pallet, and the loose bottles which had fallen out of that box, the evidence which I have accepted shows that it was the responsibility of the cross-claimant itself to send its cleaners to remove such objects. This was the way the contract worked in practice. There can be no suggestion that, when the cross-claimant chose to operate Smeaton Grange in that fashion, it can now allege a breach by the cross-defendant of cl 13.2.1. Such allegation flies in the face of the cross-claimant’s on site requirements. Further, to give such a broad operation to cl 13.2.1 would, as Senior Counsel for the cross-defendant put it, make the cross-defendant responsible even if in some other part of the factory a person unassociated with Ready Workforce had broken or spilled a product.
I find that there was no breach of cl 13.2.1 of Sch 2 to the Services Agreement.

Conclusion in relation to Clause 1.15 of Schedule 2 to the Services Agreement

For the reasons set out above, I find that the cross-claimant is not entitled to indemnity for its costs of defending the plaintiff’s claim pursuant to cl 1.15 of Sch 2 to the Services Agreement. This is because:

there was no breach or failure to discharge the cross-defendant’s OHS Legal Obligations;

there was no breach of any obligation imposed under the common law relating to health and safety in the work environment;

there was no breach of any obligation imposed by any occupational health and safety related legislation;

there was no breach of any obligations relating to health and safety imposed under the Service Agreement.

Claim for Indemnity - Clause 13.1 of the Services Agreement

Paragraph 27 of the Cross-Claim pleads a claim for indemnity based upon cl 13.1 of the Services Agreement. The relevant provisions in cl 13.1, upon which the cross-claim relies, are as follows:

“13. Indemnities
13.1 Service Provider
The Service Provider releases and indemnifies Coles in respect of any loss, damages, claims or expenses (including legal costs on a solicitor and own client basis) that may be suffered or incurred by Coles, directly in connection with:
(a)   the failure by the Service Provider and/or the Agency Personnel to perform any of its obligations under the terms of this Agreement;
(b)   any breach by the Service Provider and/or the Agency Personnel of any provision of this Agreement;
(c)   any breach of warranty or negligence or other claim with respect to goods and services sold or provided by Service Provider and/or the Agency Personnel;
…
(f)   any negligent act or omission or wilful misconduct of the Service Provider or its employees, agents or Subcontractors and/or the Agency Personnel in connection with this Agreement; or
…
except to the extent that the loss is directly attributable to the negligence or wrongful act or omission of Coles.”

The particulars provided of the matters pleaded in par 27 of the Cross-Claim are as follows:

“The cross-claimant repeats and relies upon the breaches of the agreement as set out above.”

In considering whether or not the cross-claimant was entitled to an indemnity under cl 1.15 of Sch 32 to the Services Agreement, I have considered all of the pleaded breaches of the Agreement which are picked up and repeated in the particulars under par 27 of the Cross-Claim. I have found, for the reasons set out above, that there were no breaches of the Services Agreement as alleged by the cross-claimant. For that reason, the alternative claim for indemnity under cl 13.1 of the Services Agreement fails.
There is a further reason why the cross-claimant is not entitled to indemnity under cl 13.1. Such indemnity only operates where the cross-claimant has incurred expenses (including legal costs on a solicitor and own client basis) directly in connection with certain failures of the cross-defendant.
In Coles Supermarkets Australia Pty Ltd v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140, the Court of Appeal considered cl 13.1 of the Services Agreement, although in a different context. A worker suffered an injury at Smeaton Grange. The injury was sustained when the worker was an employee of Ready Workforce, which was a subcontractor to the cross-claimant pursuant to the Services Agreement. Ready Workforce made payments of workers compensation to the injured worker. Ready Workforce claimed indemnity from Coles pursuant to s 151Z(1)(d) and (2)(e) of the Workers Compensation Act 1987 (NSW). The Court of Appeal overturned part of the decision of the trial judge and found that Coles was not negligent. It affirmed the decision of the trial judge that Ready Workforce was negligent. Coles argued that it was entitled to an indemnity for its legal costs on a solicitor and own client basis, because of the operation of cl 13.1 of the Services Agreement.
At par [109] the Court of Appeal said:

“The costs and expenses incurred by Coles in defending the litigation were incurred not as a direct result of Ready Workforce’s negligence (as found) but as a result of Ready Workforce’s bringing a claim for indemnity under s 151Z(2)(d).”

Placing due emphasis upon the phrase “directly in connection with” in cl 13.1, the same reasoning runs in this case. The legal costs incurred by the cross-claimant (as defendant) in defending the litigation brought by the plaintiff were incurred not as a direct result of any breach by Ready Workforce of the allegations under the Services Agreement, but as a result of Mr Gray bringing a claim for damages against the cross-claimant (as defendant).
Adopting the reasoning of the Court of Appeal, the Cross-Claim in the present case fails, as the cross-claimant has not incurred legal costs “directly in connection with” any failure to comply with the terms of the Services Agreement or any negligence. In any event, I have already found that there was no breach of the agreement and no negligence by the cross-defendant.

Damages for Breach of Contract

Breaches specifically pleaded

The breaches of contract pleaded in paras 13-27 of the Cross-Claim, which I have dealt with above in the context of the claim for indemnity under cl 1.15 of Sch 2 to the Services Agreement, have not been established. My reasons appear above. This cause of action also fails.

Breach through actions of the plaintiff

The written submissions of Senior Counsel for the cross-claimant (MFI 8) put the breach of contract claim more broadly than is apparent from the pleading. In simple terms, the submission was that because the plaintiff lifted the box of bottles in a manner that did not comply with the cross-claimant’s safe work practices, the cross-defendant, through its subcontractor Ready Workforce and in turn through the plaintiff as an employee of Ready Workforce, had committed breaches of the Services Agreement.
The written submission of Senior Counsel for the cross-claimant was as follows:

“21.   It is Coles submission that the injury to Mr Gray was caused by breaches of clauses 3.2(c) of the general conditions of contract and clauses 1.21, 2.1(b)(d) of Schedule 2 to and Schedule 3.
22.   The breaches occurred while Ready Workforce was performing the contract on behalf of Chandler Macleod. Chandler Macleod is ‘liable’ for its subcontractor’s performance and failure to comply with the obligations imposed with respect to OH & S matters in accordance with clause 16(e) of the general conditions and clause 1.21 of Schedule 2.
23.   In general terms the reason for a party’s failure to fulfil a contractual promise is irrelevant to the question of breach. There is no requirement as a matter of contract for the breach of the obligation to involve negligence. Failure to comply with the obligations imposed by contract for whatever reason is a breach sounding in damages.
24.   Mr Gray was a person employed by the subcontractor Ready Workforce to carry out and provide the services under the agreement. Clause 1.18 applies.
25.   The injury to Mr Gray occurred when he lifted the carton of drinks with his back in a bent position. The evidence establishes that lifting in that manner did not comply with the safe work practices specified in Coles documentation.
26.   SOP14SG and 23, L0G026, L0G027 and the site operating procedure SG038SG Manual Handling - General Lifting Procedures are ‘OH&S requirements and on site procedures’.
27.   The contract required Ready Workforce and Chandler Macleod when performing the works to ‘ensure’ compliance with Coles OH & S policies (2.1(d)), undertake the work in a manner acceptable to Coles (2.1(b)), follow Coles reasonable on-site practices (3.2(c)) Schedule 2 including the obligation to complete and supervise the tasks in a manner that does not involve a risk to safety of anyone (2.1(d)).
28.   Clause 3.2(c) required when on site compliance with ‘the OH & S requirements and any other reasonable onsite procedures’ and 1.21 of Schedule 2 required Chandler Macleod ‘ensure that in the performance of that obligation the subcontractor is subject to all of the contractor’s obligations under this Schedule in so far as they are applicable to the subcontractor’s role’, ‘that’ refers to the part of the works subcontracted out by the contractor. In the context of this matter Chandler Macleod subcontracted all of the work to Ready Workforce.
29.   If Mr Gray and Ready Workforce had complied with the OH & S provisions and undertaken the lift in accordance with Coles on site OH & S requirements the injury would not have occurred. The injury occurred because of non-compliance by Mr Gray and Ready Workforce.
30.   Schedule 2 clause 2.1(b) and (d) required the contractor to ‘ensure that all works undertaken comply with the OH & S legal obligations and are otherwise undertaken in a manner which is acceptable to the principal’ and to complete ‘tasks in a manner which does not place the health or safety of the personnel or the principal or other persons customers or anyone at risk’.
31.   Ready Workforce employed Mr Gray. His non-compliance gives rise to a breach by Ready Workforce of clause 3.2(c). Ready Workforce is necessarily in breach of Schedule 2 clause 1.21, 2.1(b) and (d). It is of no relevance to liability in contract whether the breaches occurred with or without negligence or fault on the part of Ready Workforce. Chandler Macleod is liable for Ready Workforce’s breach of the obligations under the agreement.
32.   These provisions are likewise breached by Mr Gray’s failure to adhere to Coles safe work procedures and Chandler Macleod’s failure to ‘ensure’ that he did.
33. Furthermore, to the extent that the injury to the Plaintiff is found to be a consequence of the failure to provide adequate supervision, there is a breach of Schedule 3 to the agreement.”

Senior Counsel for the cross-defendant dealt with the claim for breach of contract in pars 19-50 of his written submissions (MFI 13). As he pointed in pars 23-24, the allegation that the plaintiff failed to comply with the on-site procedures, and thus there had been a breach by the cross-defendant of cl 3.2(c), required the plaintiff to be regarded as the “Service Provider” under the Services Agreement. The cross-defendant submitted that “Clearly, he was not”.
Clause 3.2(c) of the Services Agreement provides:

“Compliance
In providing the Services the Service Provider must comply with:
…
(c) When on the Sites, the OH&S Requirements and any other reasonable on-site procedures;
…”

Clause 1.1 of the Services Agreement defines “Services” to mean:

“Services means the supply of recruitment services for temporary labour by the Service Provider to Coles and any services incidental to those services or to the performance of the service providers obligations under this agreement. The parties acknowledge that despite any other provision in this Agreement, supplied temporary labour will be under Coles direction and supervision and that the Service Provider is not responsible for the work done by the temporary labour supplied by it, or the end-products of that work.”

Clause 1.1 defines “Service Provider” to mean the service provider whose details are set out in Sch 1. Sch 1 sets out the name of the Service Provider as Chandler Macleod Group Limited.
I accept the submission of Senior Counsel for the cross-defendant (MFI 13, pars 24-27) that consideration of the definition of “Services” in cl 1.1 of the Services Agreement leads to the conclusion that the agreement is speaking only of recruitment services provided by the cross-defendant or its subcontractor Ready Workforce. My reasons are:

The definition of “Services” speaks not of temporary labour per se, but of “the supply of recruitment services for temporary labour”.

The plaintiff himself had nothing to do with the supply of recruitment services for temporary labour and thus was not a provider of Services as defined in the Services Agreement.

The reference in the definition to “services incidental to those services or to the performance of the service provider’s obligations under this agreement” is a clear indication that the contract imposes obligations directly upon the cross-defendant and its subcontractor Ready Workforce, given that the “Services” are not the labour itself, but the supply of recruitment services for temporary labour.

The definition of “Services” goes on to provide that “despite any other provision” in the Services Agreement, “supplied temporary labour will be under Coles direction and supervision”. This is an indication that the control, being the direction and supervision, of employees of Ready Workforce, was the control of the cross-claimant alone.

Further, the cross-defendant, and its subcontractor Ready Workforce, was “not responsible for the work done by the temporary labour supplied by it”. This is a further indication that the Services were, as defined, the supply of recruitment services, rather than the actual labourers who were recruited by the cross-defendant and sent to work at Smeaton Grange.

Clause 3.1 of the Services Agreement provided that Coles engaged the cross-defendant as “an employment agency to provide Coles with the services of casual staff who are employed or contracted by the Service Provider”.

In his written submissions Senior Counsel for the cross-claimant (MFI 8, par 24) submitted that cl 1.18 applies. Clause 1.18 in Sch 2 reads, under the heading “Compliance with Laws”:

“1.18 The Supplier must ensure that the Supplier and its Personnel comply with all OHS Legal Obligations.”

Clause 1.10 of Sch 2 to the Services Agreement defines certain terms used in the Schedule. The cross-claimant is referred to in the Schedule as the “Principal”. The cross-defendant is referred to as the “Supplier” or the “Contractor”.
Section 6 of Sch 2 contains further definitions. The term “Personnel” is defined to include “the Contractor’s employees, agents and subcontractors (including work experience students and delivery drivers)”. The plaintiff himself was not an employee of the Contractor (the cross-defendant), nor was he an agent or subcontractor of the cross-defendant. It is understandable that the cross-claimant would wish to provide that its counter-party to the Services Agreement, the cross-defendant, must ensure that both it and its employees, agents and subcontractors, complied with all OH&S Legal Obligations. The reality is that the cross-defendant has control over its own actions, and the actions of its employees, agents and subcontractors. However, it is drawing too long a bow to suggest that the actions of the plaintiff, an employee of a subcontractor, result in a breach of cl 1.18.
If the intention of the parties to the Services Agreement had been that a one-off failure to follow safe lifting practices was enough to constitute a breach of contract by the cross-defendant, it would have been easy to say so. Nowhere does the contract make this plain, and it requires some verbal gymnastics to contemplate that as an end result. Further, if that was the intention of the parties, one wonders how the cross-defendant could have possibly performed that obligation under the contract. Was it expected to have a supervisor shadowing the plaintiff as he did every lift? In turn would it have been necessary to have a supervisor shadowing the supervisor to check that he or she did their job? Fairly soon the aisles of Smeaton Grange would have been crowded with people whose role was nothing more than checking on each other. The way in which this contract operated was that casual labour was thoroughly trained by the cross-claimant itself, and that the cross-defendant (through its subcontractor Ready Workforce) was required to supervise and monitor the casual labour. Apart from that, the cross-defendant was expected to stay out of the way as Coles specified the work practices and required that the temporary labour would be under Coles direction and supervision. I accept the submission of Senior Counsel for the cross-defendant (T275/48 – 276/3):

“Chandler Macleod I suppose could be guilty of failing to adhere to those guidelines or operating procedures if it actively instructed the personnel on the work site not to follow them, to disregard them. What Chandler Macleod and Ready Workforce are contractually obliged to do is to ensure that those safe operating procedures and guidelines remain the standard by which their workers operate.”

As Senior Counsel for the cross-defendant submitted, there are many indications within the Services Agreement, that there is a clear delineation between the cross-defendant and its subcontractor, and the workers who are sent as casual staff to Smeaton Grange. Some of those provisions are:

Clause 3.1 speaks of the “Service Provider” being “an independent contractor… as an employment agency”. The plaintiff was not performing this function.

Clause 3.2(e) required the Service Provider to comply with all laws and regulations, including industrial awards and the requirements of any government authorities that may relate to the provision of the Services. These are matters which would be relevant to Ready Workforce as an employer, but would have no relevance to the plaintiff, who would have no obligations under such laws and regulations.

Clause 3.3(c) requires the Service Provider to provide the Services “in a professional, responsive and flexible manner”. This is clearly an obligation on an independent contractor who is operating as an employment agency, and would not be an obligation cast upon a casual picker packer.

Clause 3.5 provides that if the Service Provider fails to comply with its obligations, then the cross-claimant may withhold payment of any Service Fees, require the Services to be performed again at no cost to Coles, and require the Service Provider to reimburse any Service Fees. Clearly those obligations in relation to “Non-compliant Services” have everything to do with the cross-defendant and its sub-contractor, and nothing to do with the plaintiff.

Clause 3.6 provides that the Service Provider must not actively recruit any Coles employees and must not advertise or promote the Service Provider’s services within Coles. This only makes sense as an obligation of the cross-defendant and Ready Workforce, and has nothing to do with a picker packer.

Clause 4.1 makes a distinction between a Service Provider, and a Candidate who is selected to perform an Assignment. Once again, this illustrates the delineation between the cross-defendant and Ready Workforce, and those who are their employees.

Clause 4.2 relates to Performance of the Assignments, and is a further indication of the delineation between the Service Provider, and the workers supplied by the Service Provider.

Clause 5.3 relates to Payment, and provides for Coles to pay the Service Provider the Service Fees. This has nothing to do with wages paid to people such as the plaintiff.

Clauses 6.1 and 6.2 relate to a Statement to be provided by a subcontractor, which relates to workers compensation insurance premiums and payroll tax. This has nothing to do with people such as the plaintiff.

Clause 8 regarding record keeping and audit clearly relates to the cross-defendant and Ready Workforce and has nothing to do with the plaintiff.

The same can be said of cl 9 which deals with intellectual property, cl 10 which deals with data and records, cl 11 that deals with confidentiality, and cl 12 that deals with warranties.

There are multiple further examples contained in the written submissions by Senior Counsel for the cross-defendant (MFI 13) and the oral submissions made by Senior Counsel, which are best summarised at T275/5-9:

“So wherever you look in this contract, you are met with clear distinction between service provider and agency personnel, and they have very different roles and different responsibilities and obviously have a different degree of relevance. The plaintiff was never a party to this contract.”

Further, as Senior Counsel submitted at T275/36-40:

“So the concept of breaching the contract is not something to be taken lightly, but my friend’s construction would have it that every time somebody did something which technically was in breach of the procedures and guidelines, that would be a breach of the contract by the service provider, and that just can’t be so.”

I accept those submissions.
For the above reasons, I reject the submission for the cross-claimant that any breach by the plaintiff personally of safe working practices mandated by the cross-claimant constitutes a breach of contract by the cross-defendant. The action for breach of contract fails.

Conclusion on the Cross-Claim

For the reasons given above, the cross-claimant is not entitled to the relief sought against the cross-defendant in the Cross-Claim. There will be judgment for the cross-defendant on the Cross-Claim, with an order that costs follow the event.

Orders

The orders are:

Judgment for the defendant against the plaintiff.

Order the plaintiff to pay the defendant’s costs of defending the plaintiff’s claim.

Judgment for the cross defendant on the Cross-Claim.

Order the cross-claimant to pay the cross-defendant’s costs of the Cross-Claim.

Grant leave to approach my Associate if any party seeks a different costs order.

**********

Decision last updated: 13 December 2019

Medium Neutral Citation:	Gray v Coles Supermarkets Pty Limited [2019] NSWDC 749
Hearing dates:	4, 5, 6, 7 and 8 November 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the defendant against the plaintiff. (2) Order the plaintiff to pay the defendant’s costs of defending the plaintiff’s claim. (3) Judgment for the cross defendant on the Cross-Claim. (4) Order the cross-claimant to pay the cross-defendant’s costs of the Cross-Claim. (5) Grant leave to approach my Associate if any party seeks a different costs order.
Catchwords:	NEGLIGENCE – whether a reasonable person would have taken precautions against a risk of harm – burden of taking precautions to avoid the risk of harm – Civil Liability Act 2002 (NSW) ss 5B, 5C CROSS-CLAIM – labour hire agreement – contribution as a tortfeasor – contractual indemnity – breach of contract OTHER – lower back injury during manual handling – training and instruction – supervision – pallet turning
Legislation Cited:	Civil Liability Act 2002 (NSW) Law Reform Miscellaneous Provisions Act 1946 (NSW) Motor Accidents Compensation Act 1999 (NSW) Work Health and Safety Regulation 2011 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Bunnings Group Limited v Giudice [2018] NSWCA 144 Coles Supermarkets Australia Pty Ltd v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140 Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098
Category:	Principal judgment
Parties:	Roland Gray (Plaintiff) Coles Supermarkets Pty Ltd (Defendant)
Representation:	Counsel: B D Dooley SC with M H Best (Plaintiff) G J Parker SC (Defendant/Cross-Claimant) J Catsanos SC (Cross-Defendant) Solicitors: LHD Lawyers (Plaintiff) McCulloch & Buggy (Defendant/Cross-Claimant) Holman Webb (Cross-Defendant)
File Number(s):	2018/131372

Pain management course	$10,000
Psychological treatment	$2,500
Gym program	$3,700
Re-training as a swimming coach	$1,500
Total	$17,700