Hunt v Aldi Foods Pty Limited trading as Aldi
[2024] QDC 15
•20 February 2024
DISTRICT COURT OF QUEENSLAND
CITATION:
Hunt v ALDI Foods Pty Limited trading as ALDI [2024] QDC 15
PARTIES:
TRACEY-MAREE HUNT
(plaintiff)
v
ALDI FOODS PTY LIMITED TRADING AS ALDI(defendant)
FILE NO.:
BD No 735 of 2022
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
20 February 2024
DELIVERED AT:
District Court at Brisbane
HEARING DATE:
27 March 2023; 28 March 2023; 29 March 2023; 16 June 2023.
JUDGE:
Sheridan DCJ
ORDER:
1. The plaintiff’s claim is dismissed.
2. If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 1 March 2024.
3. If the parties cannot reach agreement as to costs:
(i) the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 8 March 2024;
(ii) the defendant file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 15 March 2024; and
(iii) the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Wednesday, 20 March 2024.
CATCHWORDS:
TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where plaintiff employed by defendant as store manager – where the temporary closure of a nearby store led to increased sales – where store subjected to an international audit – where staff underperforming – where plaintiff suffered an injury to her left arm – where plaintiff alleges defendant breached duty of care by failing to provide additional assistance and systems to adequately deal with increased workload – where plaintiff alleges injury has caused ongoing impairment in her life – where liability and quantum in issue – whether defendant breached its duty of care – whether plaintiff has an ongoing impairment.
LEGISLATION:
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B
CASES:
Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627
McLean v Tedman (1984) 155 CLR 306, 313.
COUNSEL:
E M Fitzgerald for the plaintiff
H Berghofer for the defendantSOLICITORS:
Kare Lawyers for the plaintiff
BT Lawyers for the defendant.
In this action, the plaintiff, Ms Hunt, claims damages for personal injury alleged to have been suffered in the course of her employment with the defendant, ALDI Foods Pty Limited (“ALDI”) between 2 and 8 November 2019.
Ms Hunt was a store manager at the ALDI Cannon Hill store at the time and had been so since 12 November 2012. Ms Hunt alleges that in March 2019 she had been diagnosed with lateral epicondylitis (tennis elbow). At that time, she was placed on a suitable duties program by ALDI which excluded manual handling. Ms Hunt subsequently returned to full duties and no longer experienced any left elbow pain.
Ms Hunt says that in the period 2 to 8 November 2019 her workload increased and that she was unable to work as a result of left arm pain after that time. It is alleged that as a result Ms Hunt has “radial tunnel syndrome”. The claim relates to this alleged event.
Both the extent of the workload during the relevant period and the diagnosis are in issue.
Pleadings
Ms Hunt bases her claim on breach of contract of employment between herself and ALDI and breach of the duty of care owed by ALDI to her.
The breaches of duty are particularised in the second further amended statement of claim as ALDI:
(a)Failing to warn the Plaintiff of the risk of overuse injury from repetitive manual handling tasks;
(b)Failing to ensure the Plaintiff was engaging in safe manual handling practices;
(c)Failing to provide the Plaintiff with any or any adequate manual handling training relevant to repetitive manual handling tasks;
(d)Failing to provide the Plaintiff with adequate human assistance;
(e)Requiring the Plaintiff to work excessive hours of repetitive manual handling work when it knew or ought to have known that fatigue would increase the risk of overuse injury;
(f)Failing to institute a system of rotation between tasks to ensure the Plaintiff was not engaged in repetitive manual handling tasks for extended periods of time;
(g)Failing to take reasonable care for the safety of the Plaintiff;
(h)Failing to pay due care and attention for the safety of the Plaintiff;
(i)Exposing the Plaintiff to a risk of injury which it knew or ought to have known to have been in existence and which would have been avoided by the exercise of reasonable care;
(j)Failing to ensure that any, or any reasonable risk assessment of the tasks undertaken were conducted to identify any potential hazards to which the Plaintiff was exposed; and
(k)Failing to comply with its obligations pursuant to the provisions of WHSA and associated regulations and codes/standards of practice.
The pleading draws no distinction between the duties alleged to be imposed under negligence, contract or statute and no submissions otherwise are made about the contractual claim.
The focus of the claim in the second further amended statement of claim was on the period between 2 November and 8 November 2019 and the tasks Ms Hunt was required to perform during that period. The pleading alleges that Ms Hunt’s workload in November 2019 increased “so that she worked 7 days where every day was long and required a large volume of work.” The pleading alleged that Ms Hunt prepared the store for the attendance of an international audit, working 7 consecutive days, each day working between 7 and 13 hours, each day spending between 7 and 8 hours shelf stacking and working a total of in excess of 69 hours in that period.
ALDI admits it owed duties imposed on it by law as the plaintiff’s employer but denies the matters alleged were express or implied terms of the contract of employment. The duty is admitted to be to take reasonable care to avoid the risk of foreseeable injury to the plaintiff in the course of her employment.
ALDI denies it was negligent and says it did not breach its contract of employment with Ms Hunt. ALDI says it provided adequate warning of risks, the system of work was safe including providing an adequate system of rotation which did not require Ms Hunt to engage in repetitive manual handling or to work excessive hours, adequate training was provided and adequate human assistance was provided.
ALDI further says that if Ms Hunt did work excessive hours or engage in repetitive manual handling she did so on a frolic of her own and contrary to the training and manual.
Objection to evidence
During the hearing ALDI objected to certain evidence being led by Ms Hunt on the basis that it was not covered by the pleadings. The evidence was received on the basis that the Court would determine the admissibility of that evidence in giving its reasons for its decision.
The evidence to which objection was taken was evidence in relation to the Tingalpa store closure and the increase in sales for Cannon Hill. ALDI objected on the basis that it was not alleged that by reason of the Tingalpa store being closed the sales increased for the Cannon Hill store in the period from 2 to 8 November 2019, nor was the alleged effect pleaded, being the increasing customers, increasing stock delivered and limited staff.
Ms Hunt in response relied upon particulars to an allegation made in paragraph 6(c) of the original statement of claim that during the course of Ms Hunt’s employment the store was “busy”. The particulars, dated 22 April 2022, relevantly stated:
“The plaintiff describes the Cannon Hill store as “busy” as the Tingalpa store was closed for renovations at the time of her injury. The Cannon Hill store was the closest store to Tingalpa and so there was an increase in the number of customers and stock delivered to Cannon Hill without a corresponding increase in staff.”
No allegation was made as to when Ms Hunt was employed by ALDI in that statement of claim, or the particulars to that paragraph. The best that might be said is that it was alleged that Ms Hunt developed pain over time and sought medical advice on 29 March 2019. The diagnosis of common extensor tendinopathy and posterior interosseous nerve compression related to repetitive manual handling was described in the pleading as the injury. It was then alleged that her workload increased such that on 8 November 2019 Ms Hunt ceased work.
The allegation in paragraph 6(c), whilst re-numbered to become paragraph 10(c) in the first of the subsequent iterations of the statement of claim which followed, did not change in any of the later iterations, nor were the particulars amended or further particulars either requested or provided.
Subsequent pleadings did, however, change the allegations relating to the injury diagnosed on 29 March 2019 so that it became the “first injury” and the injury from the period in November 2019 became the “second injury”- the injury to which the claim solely related.
By the amended statement of claim and thereafter, the allegation was that the workload and hours worked between 2 and 8 November 2019 increased such that it was the cause of the second injury. The relevant paragraph alleged that Ms Hunt was preparing the store for the attendance of an international auditor on 8 November 2019, but it does not specifically state that this was the cause of the increased workload or hours. It might be inferred that this was the explanation for the increase, but the gravamen of the complaint is the fact of the increase, not its rationale.
The evidence relating to the closure of the Tingalpa store is similar. It is relevant to justify the increased hours and workload, and maybe relevant to credit in the sense that it gives context to the hours worked in that period, but the material facts leading to the injury are the increased hours and workload, not the closure of the Tingalpa store. There is no suggestion that ALDI are at fault for that act.
To the extent that reliance was placed upon the particulars to lead the evidence, it was submitted on behalf of ALDI that it was impermissible to use particulars to expand upon and introduce new allegations that were not pleaded in the statement of claim. That is obviously so, but no objection was taken to the particulars when they were provided, and, as I have stated, the closure of the store provides an explanation for the events and does not constitute an event of negligence for the purpose of Ms Hunt’s case.
In any event, the answers given in the particulars clearly put ALDI on notice that a reason why the Cannon Hill store was “busy” during the relevant period was the temporary closure of the Tingalpa store and the closure of that store resulted in an increase in sales at Cannon Hill.
Indeed, included in the documents tendered without objection from ALDI are sales data from ALDI for November and December 2019. They were ALDI’s own documents; so presumably ALDI considered the subject matter relevant enough to disclose them.
Finally, there was no suggestion that ALDI suffered or would suffer any prejudice by the admission of the oral evidence of Ms Hunt and Mr Bazzano on the subject.
I will accordingly admit the evidence.
LIABILITY
Events described by Ms Hunt in early 2019
Ms Hunt was born on 5 December 1983. She was 35 years of age at the time of the alleged injury.
Ms Hunt said in evidence-in-chief that she obtained employment with ALDI in October 2005 as an assistant store manager. She worked as an assistant store manager at ALDI’s Chermside, Salisbury and Victoria Point stores until December 2006 when she was promoted to a store manager at the Capalaba store. Following her return from maternity leave, Ms Hunt gave evidence of finding the position of store manager difficult and requested a lesser role and a transfer to a store closer to home. In late 2012, she commenced as an assistant store manager at the Tingalpa store.
In December 2013, she commenced the role of store manager at the new Fortitude Valley store. In August 2014, she was appointed store manager of the new Cannon Hill store.
In March 2019, Ms Hunt said that after work she went to pick up her son after school and felt a pain on the outside of her left elbow.
Ms Hunt said that she reported this injury to her workplace on 29 March 2019 by completing an online Incident Report form. The incident date was recorded as having occurred on reported on 21 March 2019 and the injury was described as non-work related. On a separate form dated 29 March 2019, Ms Hunt described the soreness/ pain in her left elbow as having occurred on 28 March 2019. Ms Hunt was given a medical certificate until 4 April 2019. She said she was subsequently placed on a “suitable duties program”. She was sent a letter from ALDI dated 10 April 2019 confirming she was to be provided with suitable duties to assist her recovery. Ms Hunt remained on sick leave until 11 April 2019.
The plan was for a two week period up until 24 April 2019 and included a recommendation for the wearing of a forearm brace at all times for two weeks, listed a number of tasks to be avoided for two weeks, in particular stocking shelves other than hand stacking individual items if required and the use of a right facing till only.
On 23 April 2019, Ms Hunt was put on a second suitable duties plan for the injury she reported in March 2019. The second plan still contained some recommendations including the wearing of the forearm brace for all lifting and a restriction on stocking shelves.
Ms Hunt gave evidence that she understood the suitable duties plans. Ms Hunt said that she understood that she needed to avoid manual handling.
Ms Hunt agreed in cross-examination that in “approximately May of 2019…[her] elbow pain got better”.
On 9 May 2019, Ms Hunt had her return-to-work questionnaire completed by a Dr Tara Hillister. The form was required to be completed by the treating medical practitioner. Dr Hillister diagnosed Ms Hunt with “tennis elbow” and noted that it was a “long term” injury.
The return-to-work form required Ms Hunt to wear an elbow brace as required and monitor symptoms and seek a review as required. The doctor imposed a lifting weight limit of 20kg but otherwise imposed no restrictions. The form provided that Ms Hunt was able to return to normal duties as of 9 May 2019 and noted Ms Hunt would not be left with any permanent restrictions.
Ms Hunt confirmed that she did return to normal duties. She confirmed that the lifting weight limit of 20kg did not impose any restriction because that is “the standard sort of …lifting limit … at ALDI anyway.” Ms Hunt said she continued to wear the counterforce brace when there was heavy lifting.
Ms Hunt said that she did not recall having pain between May and November 2019.
Events described by Ms Hunt in the immediate lead up to the injury
Ms Hunt said that over a period of seven days from 2 November 2019 to 8 November 2019, she experienced an increased workload at the store.
Ms Hunt said this increased workload was the result of an increase in sales at the Cannon Hill store due to the closure of the Tingalpa store, preparation of the store for the attendance of an international auditor and underperforming staff at the Cannon Hill store.
Ms Hunt said that she worked seven consecutive days. Records showed that during this time she worked 8.5, 10.9, 6.42, 11.75, 9.66, 13.37 and 9.08 hours respectively; a total of in excess of 69 hours.
Ms Hunt was responsible for the roster, including her own.
Ms Hunt confirmed that her roster was that one week she would work Monday to Friday and the following week she would work Monday to Wednesday, have Thursday and Friday off and then work Saturday and Sunday. She agreed that when the rotation comes around, she would do seven days straight.
In examination-in-chief, Ms Hunt was asked to focus on the last two days of the (November) period and explain the kinds of tasks she was doing. She said, in the morning, it would be running produce for the “first two and a half, three hours”. Ms Hunt said you would then turn to the next task “whether that’s filling bread, cleaning up the warehouse, building specials”, at lunch time re-stocking again and decarding the store (which she described as “getting rid of all empty cardboard”) and office type tasks. She said she did not finish at 2.00pm that day. She said that she thought she ended up working back until 8.00pm, “making sure that everything was okay for the auditor”. She described those tasks as “date checking every single product, price checking every single product, making sure everything was just completely in order for… the audit.”
In cross-examination, Ms Hunt was asked as to the hours she spent packing shelves. She was referred to that part of the pleading where it was said that she spent four to five hours a day stocking and replenishing. She said that it was not all “stocking and replenishing” but was “manual work within the store”. She said it could include “doing bread, doing specials… taking empty boxes away, pulling everything forward on the shelves.”
When asked as to whether she could make it so that she did not do any stocking in the morning, she said “not particularly” and related it back to her productivity target and said that there would not be other tasks for her to do; though she said there were certain days where she would “definitely not be doing the stacking”. She said, for example, Wednesday morning as Wednesday was a compliance day where there are a lot of price changes. She agreed that on special buy days on Wednesday and Saturday, she would be involved in building specials tables and that was different to stocking and re-stocking.
She said that the stocking in the morning generally took “the full two and a half hours” and on Saturday and Sunday “three at least”. She said the restock would generally take “maybe one, one and a half hours” and a “lot longer” on the weekends. On the weekends, she said it would generally take about “three hours to re-run all that again”.
On the weekends she maintained that she did seven to eight hours shelf stacking. She said that “on the weekends, its solely making sure that everything’s full and available.”
Ms Hunt agreed that on the weekdays she would not do the restocking as there were “other tasks”.
In cross examination, Ms Hunt was taken to each day during the seven day period in November. On the Saturday and Sunday she said it would have been predominantly stocking and re-stocking. She said she would have spent eight hours on the Saturday and probably seven to eight hours on the Sunday. She accepted she did not specifically remember the detail, but based her evidence on “knowing the store routine” and doing her best to answer.
She said that for a large part of that time she would be lifting. She referred to the stocking of produce and meat in the morning. She agreed the tasks included the lifting up of products, putting them on the shop shelf, taking products away and doing the rubbish. She also mentioned the specials restocking.
She said she would have only done three hours of stocking and restocking on the Monday but on the Tuesday she said that three quarters of the twelve hour shift would have been stocking and restocking; so she said maybe nine hours would have been restocking tasks. She agreed that included taking out the rubbish and building specials.
She said she would not be able to say what she did on the Wednesday. On Thursday she said that she would “probably say at least maybe seven or eight of those hours” on stocking. On Friday, her evidence appears to be that she spent six hours .
Ms Hunt said that she first felt pain on 8 November 2019 at around that sort of lunchtime period, and reported it later that same day.
Ms Hunt saw a doctor who recommended that she find work that did not include manual lifting. She was given a medical certificate and remained on sick leave until her resignation in December 2019.
Ms Hunt accepted a job in administration, initially with Puma. She now works in the supply team at United Petroleum.
She says that she still feels pain in her left arm. She says that different things trigger it. She says it could be reading a book, holding her phone, shopping if she holds the bag on her left arm or holding a baby in her left arm. She says she mostly relieves the pain by rest and stays away from activities that aggravate it. She said when it is sore she takes Panadol or Nurofen.
Ms Hunt says she can still play netball, once or twice a week. She says netball involves a different movement.
The Medical evidence as to the injury
Evidence of Dr Perkins and Dr Allen
Ms Hunt called Dr Simon Perkins, orthopaedic surgeon. He first saw Ms Hunt on 31 January 2022.
In his first report dated 21 February 2022, Dr Perkins reports Ms Hunt complaining of pain in her left forearm, with decreased strength as a result. Provocative tests for carpal tunnel were positive indicating an element of mild carpal tunnel syndrome. However, he did not think that this was related to her work at ALDI.
Dr Perkins reported that a MRI done on 8 May 2020 showed hypersensitivity in the posterior interosseous nerve sheath beneath the arcade of Frohse with denervation changes in the supinator and distal muscles suggesting a posterior interosseous nerve neuropathy. In view of that diagnosis, Dr Perkins recommended that she should have an electromyographic study as well as nerve conduction studies. Subject to that, Dr Perkins considered that Ms Hunt had posterior interosseous nerve syndrome.
The studies suggested by Dr Perkins were done on 4 May 2022. The reports were normal. Dr Perkins stated in his second report dated 21 June 2022 that those findings made his earlier diagnosis unlikely.
Instead, Dr Perkins diagnosed Ms Hunt as having radial tunnel syndrome. Dr Perkins stated that the syndrome was likely
“precipitated by performing repetitive wrist extension with varying amounts of pronation and supination whilst wearing a counterforce brace that was being used to treat a previous diagnosis of lateral epicondylitis in the setting of her work at Aldi Supermarket.”
Dr Perkins explained in re-examination, that the objective evidence of radial tunnel syndrome was that Ms Hunt “had some denervation changes to her supinator muscle” and that can be correlated to “changes consistent with radial tunnel.” He continued:
“The fact that she doesn’t have nerve conduction study or EMG study changes also excludes other causes of her pain, such as posterior interosseous nerve compression and would support a diagnosis of a radial tunnel syndrome”.
Dr Perkins also said that he conducted provocative testing on Ms Hunt and that she “had replicated pain over her radial tunnel with palpation”. He said that in one of his reports he wrote that Ms Hunt “had pain over the arcade of Frohse”. He said that Ms Hunt also experienced pain when he conducted a resisted middle finger extension.
During cross-examination, Dr Perkins was asked whether it was the repetitive wrist extensions whilst wearing the counter brace that has caused radial tunnel syndrome, he answered, “Yes potentially”. When then asked more directly, if Ms Hunt was not to wear the counterforce brace, would the condition have occurred, Dr Perkin’s response was more careful, “Potentially”.
Dr Allen’s evidence
ALDI called another orthopaedic surgeon, Dr Philip Allen. He saw Ms Hunt on 1 February 2022. At that time, the examination was entirely normal. There was a full range of movement and no residual evidence of epicondylitis. He said that itself was a degenerative condition and did not constitute a work related injury. Dr Allen had a similar view of posterior intraosseous nerve entrapment, and referenced an article evidently once available online.
Dr Allen conceded in cross-examination that the article, which was now available online, also said that “Repetitive pronation/supination activities can also cause posterior interosseous nerve syndrome.” Dr Allen did not agree with that proposition as he considered you needed to look at the body of evidence and that from the evidence he had seen over 40 years of practice, the condition is generally not considered primarily associated with repetitive pronation and supination and is more commonly associated with sports people who are doing such repetitive activities, and inferentially it could be verified by the usual laboratory and radiographic tests.
He confirmed that the studies conducted in this case had not substantiated the diagnosis. Dr Allen confirmed in cross-examination that both conditions relate to the radial nerve and compression of that nerve. He said that the electrophysiological evidence and MRI evidence can support the posterior interosseous nerve syndrome. When the tests are negative, as here, then radial tunnel syndrome becomes the fallback diagnosis.
He said the clinical examination must be the thing to fall back on. He said, his clinical examination, as laid out in his report, gave “none of the clinical stigmata associated with either of those conditions.” He said, “In fact, my clinical examination pointed me away from both of those conditions.”
In his report, Dr Allen noted that the imaging studies of her elbow did not demonstrate any significant pathology of any magnitude to account for the symptoms reported.
In response to Dr Allen’s reports, Dr Perkins said in his third report dated 24 October 2022 that he could not assess how Dr Allen had come to his view as to the absence of evidence of radial tunnel syndrome “due to the lack of detail in the report”. He said that his own test “prompted a manifestation of the symptoms”. In his oral evidence, Dr Perkins said that, whilst a large part of a clinical diagnosis was based on patient history, these responses were objective evidence of the condition of Ms Hunt. In his third report, Dr Perkins repeated his view that the repetitive lifting tasks that Ms Hunt was required to undertake at ALDI were consistent with the evidence of changes to her radial nerve.
Dr Allen was asked in cross-examination about the basis for his opinion as to testing and what provocative tests he had undertaken. He said that he did the middle finger provocative test, a wrist resistant provocative test and palpitation test along the epicondyle area and the muscle distal to it and the usual nerves around that area. He did not have any notes supporting that fact as he said it was his usual practice to discard them in line with what he said were privacy considerations. When asked how he could recall the tests conducted, he said, “I did and I recorded them as much” and they are his standard examination for this type of condition.
He was unable to explain why there would be a difference between his testing and that of Dr Perkins. Dr Perkins was not asked that question.
Consideration
It reflects poorly on Dr Allen that he discarded his notes. His approach to the request for them and the article upon which he relied in giving his written report, and when being questioned on those subjects in court, were most cavalier. The citation in his report of an article for support for his view but his failure to refer to other parts of that article which lent support to the case for Ms Hunt is unfortunate and did not give any confidence that he brought an objective approach to the issues about which he was being asked. However, the explanation given in response to cross examination on the issue was logical and carefully considered.
One of the difficulties of the case is that although Ms Hunt gave evidence of the number of hours she worked, and the number of hours spent stocking and re-stocking, she did not give any evidence as to the precise types of commodities stocked, nor their weight. There was only reference to running the produce and meat and to building specials with some reference to the number of loads and reference to the loads being between two and 10 kgs and it being an ALDI policy that there was a weight limit than 20 kgs.
The difficulty is that the volume and frequency of the lifts appeared to be significant for Dr Perkins but there was no evidence given of that.
In his first report Dr Perkins recorded that Ms Hunt on a twice weekly basis:
(a) Lifted 150 to 200 cases of fresh produce weighing 2 to 12 kgs;
(b) Lifted 150 to 200 cases of meat weighing 2 to 12 kgs;
(c) Unpacked 10 pallets of special buys products ranging from 2 to 20 kgs; and
(d) Restocked ambient produce and bakery goods.
When Dr Perkins was asked whether it would make a difference if Ms Hunt were only stocking two to three hours in a morning and potentially one to two hours during the day, and not every day that she was worked, Dr Perkins responded that he was not sure it would. He said that he would need to know the volume, the type, the weight and the frequency of the lifts, and whether that is everyday of her work. He said there were “lots of factors” but he said, he did not consider that the fact of having worked seven days straight and in excess of 69 hours would make a difference.
In his second report, Dr Perkins referred to Ms Hunt telling him that everyday she was lifting cases of fresh produce, meat and ambient goods that can weigh between 2 and 20 kgs up to 150 and 200 times a day. In cross examination, he agreed that if this were not found to be the case, he would need to know the weight and frequency of the lifting. He agreed, it was correct to say, “it’s dependent on what the court finds in so far as it’s the weight and frequency of the lifting.”
In his third report, Dr Perkins referred to Ms Hunt telling him that most shifts she lifted between 20 to 30 kgs; what he described as heavy manual lifting. He agreed that was different to his earlier reports, where he had assumed two to 12 kgs. Originally, when asked in cross examination, he said that if the court were to find that she was not doing a high repetition of lifting tasks of weights between 20 to 30 kgs that would not significantly affect his opinion. Later in his evidence, he appeared to say that it would make a difference to his opinion. That answer seems more consistent with his evidence as to the factors which would affect his opinion and his evidence that Ms Hunt could lift weights of up to 20 kgs consistently without issue.
Although Ms Hunt did give evidence as to the amount of time she said she spent re-stocking, that evidence is difficult to accept in the context of her role as store manager and the existence of less senior staff who were also employed at the store. Her evidence of the time spent during the relevant week is inconsistent with her evidence as to the normal amount of time spent stocking and the evidence of ALDI (Mr Bruggy and Mr Ridge) who stated that the aim was to complete stocking in the two and a half to three hours before the store opened with the need to simply re-stock a couple of times as the day progressed. Their evidence on the subject was compelling and logical. The closure of the Tingalpa store and the existence of an international audit in the relevant week is insufficient explanation for the change in routine of Ms Hunt given that she knew of the closure of the store and she was responsible for rostering and that the international audit was not concerned about stock levels in the store.
Clearly important to Dr Perkins was the weight and frequency of the lifting, though with an emphasis on what he described as the heavy manual labour of 20 to 30 kgs. If it were as onerous as he was told, it would make the likelihood of his diagnosis being correct. The evidence of Ms Hunt completely contradicts any suggestion that she was lifting weights of over 20 kgs. In fact, Ms Hunt’s evidence was that ALDI had a lifting limit of 20 kgs.
As for the different responses recorded by the doctors to the palpitation tests, there is no reason not to find that there simply was different responses at different times. That is, however, an unsatisfactory basis to reach any conclusion as to Ms Hunt’s medical condition.
That leaves for consideration a related issue, namely that even the results of these tests evidently related to the reaction of Ms Hunt. Dr Perkins found a reaction and Dr Allen did not. Even if it could be said that Dr Allen was unsympathetic to Ms Hunt, I found Dr Perkin’s reaction to seeing the video of Ms Hunt shopping surprisingly unhelpful. He was reluctant to admit that he was watching Ms Hunt doing the shopping, and to find that it held any significance.
The video itself showed Ms Hunt lifting a bag of groceries from the floor with her left arm. A later recording shows her holding a bag of groceries in her left arm, whilst holding her phone in her right hand. She was not asked and did not give any evidence about what was in the bag, but the video is not consistent with her evidence that she stays away from activities that aggravate the injury and as to the pain that she sustains in her left arm.
In any event, I did not find the evidence of Ms Hunt as to her condition very compelling. Not only did the video contradict her evidence, but I found it hard to accept that she suffered the pain she described, sufficient to require Panadol or Nurofen, from reading a book or holding a phone. Her ability to play netball, involving as it does active throwing of a ball of some size and weight, uninhibited by pain, once or twice a week, does not support the existence of a disabling condition.
In the end, I am unable to accept that Ms Hunt suffers the condition described by Dr Perkins, and that any incapacity was caused by her conditions of employment.
Evidence as to the system of work
The next issue, should I be wrong about this conclusion, is whether ALDI had a safe system of work.
The most relevant enquiry, given the absence of evidence as to the weights and precise type of goods lifted, relates to the hours and intensity of hours worked by Ms Hunt. In her evidence, Ms Hunt not only described the long hours worked, but said she felt under pressure to perform by the absence of suitably qualified staff and the statements made to her by senior management as to the effect of an international audit.
ALDI called the director of store operations for ALDI (Mr Bruggy) and a person who at the relevant time was the area manager for a number of ALDI stores in Brisbane, including the Cannon Hill store where Ms Hunt worked (Mr Ridge).
As to stocking, Mr Bruggy said that the aim for stocking was that it be completed before the store opened at 8.30am. He said he would expect the stocking to take two and a half hours. He said they aimed for two and a half hours and said it was generally more efficient to stock before the store opened. He said that would normally be done by a minimum of four people. For the re-stocking, his evidence was that it would take “roughly half an hour” each time it was done through the day and would involve about the same amount of people.
He said as store manager there would be a portion of the role where they would be stocking shelves and working with their team. However, he said they would not want to spend all their time doing that because they should be leading the team. He said that the role of a store manager in stocking was less than a store assistant as the store manager had other roles to perform. He said it was the responsibility of the store manager to allocate people to their tasks, and they would do that when they completed their rosters.
Mr Ridge gave similar evidence, though said that stocking could take three hours, depending on the load size. He thought there would be five or six people assigned to the task at the Cannon Hill store. He said the re-stock would occur multiple times through the day and each time would take half an hour and generally one to two people would be allocated to that task.
Mr Ridge said he had spoken to Ms Hunt on numerous occasions about her not doing stocking in the mornings because he wanted her to focus on the development of the team and safety and compliance. He said that was a weak point in the store. He said those discussions had been occurring since middle to early 2018, though he said that he vividly remembered discussions after the Easter break in 2019. He said they sat down and discussed it in depth. He said a big part of the store manager’s role was the leadership, delegation and management of the staff. He mentioned building specials out the back, doing compliance, price changing, rostering, staff training, staff development and team meetings.
Ms Hunt did not accept any such conversation had occurred; except there being a conversation about her not doing stocking during her suitable duties plan.
Mr Bruggy said that ALDI emphasised the importance of task rotation, and that store managers were required to set the routine for the store in that regard.
Ms Hunt originally did not accept that task rotation was built into the ALDI system. Later when asked to review an employee handbook from 2016, Ms Hunt agreed that in a section headed, Task Rotation, ALDI had warned about the risks of repetitive tasks and that the purpose for task rotation was to reduce fatigue and the chance of workplace injuries. Ms Hunt agreed that employees would have received the handbook when they first started and that a handbook would be kept at each store. She said that a copy would be sent to the stores each time it was updated.
Ms Hunt subsequently said that task rotation for register work was the “bigger highlight”. This is not entirely accurate. The handbook refers to a person spending their time between cashier, shop floor and cleaning, but this is only given as an example of task rotation. A manual handling retraining quiz also does specifically ask about the correct procedure if a person has been sitting on a register for the first three hours of a shift, and does say that the correct procedure is that the person should go out on the shop floor. This is explained, however, on the basis that the procedure is designed to help avoid any repetitive strain injury caused by repetitive activity. The question is proceeded by a question which, amongst other things, identifies that increasing the number of times an object is handled or the length of time it is handled is a risk factor which can increase the risk of injury in the workplace.
As to manual handling, Ms Hunt said that one of her responsibilities was to do re-training of staff quarterly as to manual handling. She also explained that staff had to do multiple choice questionnaires on an iPad as to manual handling. In evidence there were a number of documents demonstrating that Ms Hunt had participated in manual handling and retraining each quarter; including a quiz at the end of it.
In terms of hours worked, Mr Bruggy said that Ms Hunt was on a 45 hour contract, and if she worked additional hours she was entitled to time in lieu. Mr Ridge referred to it as a 90 hour contract for a fortnight. Ms Hunt agreed that this was the situation.
Mr Bruggy said that the hours worked by Ms Hunt were the responsibility of Ms Hunt as the store manager. Mr Ridge gave the same evidence.
The evidence of Mr Bruggy and Mr Ridge as to the responsibilities of the store manager with respect to rostering and staff performance is consistent with the job description of Ms Hunt and the ALDI documents which were tendered at the trial. It is also consistent with the oral evidence of Ms Hunt.
There existed a managers’ group chat which appeared to be used to exchange messages between those in the management team as to the state of the store and staffing issues. The messages for the period from 2 November to 8 November 2019 were tendered in evidence.
It is clear from those messages that the management team worked closely together and were very supportive of each other. The team were happy to work extra hours, when asked and willing to change their shifts. On 6 November, despite an offer from one of the team to start early, Ms Hunt opted to herself start at 5.00am.
Ms Hunt’s evidence as to staffing the store focussed on the problems caused by the underperforming staff, staff calling in sick and new staff.
Ms Hunt accepted that her role involved “developing, leading and motivating a capable team”. She accepted it was her responsibility to ensure that everyone in the store was trained to the best of their ability.
Ms Hunt explained the process of planning the staffing requirements. The manual required her to estimate sales one month in advance and schedule staff hours to meet productivity targets and adjust the plan if required. She explained that they were required to do sales forecasting within the store in advance based on estimated sales and that would become the figure they would plan from.
Mr Bazzano, who was called by Ms Hunt and who was the assistant manager of the Cannon Hill store at the relevant time, considered that there was never anyone to work the extra hours. Mr Bazzano now works in supply at United Petroleum; the same place where Ms Hunt now works. Mr Bazzano was taken to text messages between himself and Ms Hunt.
Mr Bazzano was referred to a message where he said, “Brendan (Mr Ridge) keeps saying use extra hours.” In giving evidence, he explained that Brendan kept saying “use extra hours… but there just never was anyone to work extra hours.” In the text messages, Ms Hunt did not respond to the comment said to have been made by Mr Ridge and did not give evidence that there was never anyone to work extra hours.
As to the international audit, Mr Bruggy was asked as to who would get the store ready for an international audit, he said, “…ideally no one should”. He said that there would be no shelf stacking in preparing for an audit “[b]ecause it’s not something that they look at”. Mr Bruggy said that he would not have expected Ms Hunt to have worked seven to 13 hours a day for an international audit. Mr Ridge gave evidence to a similar effect, both in terms of hours and tasks.
Mr Bruggy acknowledged that when stores are audited then they will often let their colleagues know. He said, “So you might have 24 hours notice as … a team at most.” He said then if you are “prepping for it”, “you’re looking at things that are compliance by nature”.
Mr Ridge gave similar evidence. The fact of some notice being given is also confirmed by the text messages between Mr Ridge and Ms Hunt. The text messages also confirm the types of things the auditors were focussed on. When asked as to the purpose of the text messages, Mr Ridge said it was to inform his stores as to what the auditors were looking for and what “we should be probably looking or double checking”. He agreed with the statement that they were to “make sure that their stores were looking presentable and meeting what the auditors were looking at.”
Mr Ridge said that if an aspect of the audit was found to be poor or bad, then there would be a discussion with the store manager or area manager about why that had occurred and “how we can resolve and what behaviours or processes we can put in place …to fix it.”
Ms Hunt’s evidence was that she had worked a long shift on Thursday 7 November in preparation for the audit the next day. She gave evidence that instead of finishing at two that day, she had worked until around 8.00pm. Consistent with the evidence of Mr Ridge and the text messages, she described those tasks as “date checking every single product, price checking every single product, making sure everything was just completely in order for… the audit.” She said she would have spent four hours doing that.
In her evidence, Ms Hunt said she had been told by Mr Ridge that if the international audit was unfavourable, she would be going back to head office and there was no guarantee that she would be returning to the store. Ms Hunt said she understood that to mean that her employment could be terminated. Mr Ridge denied any such conversation.
Text messages sent by Ms Hunt to the management team referred to her relief once the auditors had been. It included celebratory emojis and a comment, “I’m about to have a nervous breakdown but we’re good.”
Mr Bazzano said in his evidence that there has “always been the hype leading up to” an international audit. He said, “the stress kind of got passed down from the area manager to store manager to the rest of the management team”.
As to the closure of the Tingalpa store for refurbishment, Ms Hunt confirmed that she was notified of the store closure. She said it was discussed in the lead up and it was discussed in terms of sales. She thought the discussion was with Mr Ridge. She said they were discussing sales and that she was told the other stores had “five… three to five per cent increase.” Mr Ridge was not asked about the discussion.
Both Mr Bruggy and Mr Ridge agreed that the closure of the Tingalpa store would have had an impact on the sales at the Cannon Hill store. They both accepted that an increase in sales would result in an increase in ordering of stock, and an increase in the ordering of stock would result in an increase in workload in restocking or refilling the shelves and additional staff to deal with the additional stock.
The impact of the increase in sales on the Cannon Hill workload was confirmed by Mr Bazzano.
He gave evidence as to the hours he worked the week of 2 November 2019. He had worked Monday 4 November, Tuesday and Wednesday and then Saturday and Sunday. The hours he had worked were 11.25, 8.35, 7.57, 11.67 and 11.02.
Mr Bazzano said the effect of the closure meant that Cannon Hill had gone well over its target for the month. He suggested the increase in sales was 20 per cent.
Mr Bruggy gave evidence that there was a seven percent sales growth in that month. He said that the store had been tracking a six and a half percent growth from January to October that year and that they were bumped up by another six and a half to seven percent for the following month.
The management team group chat confirmed that there were significant sales increases. The Stores Operations Balanced Scorecard November 2019 data[1] confirmed an increase in the November results for Cannon Hill, which suggested an increase of 15 percent over the entire month. That would suggest an increase of some 8 percent that month; not that different to the figure given by Mr Bruggy.
[1]Exhibit 4
Mr Bruggy was asked questions about the productivity bonus and as to whether that bonus would be increased by having fewer staff at the store. He admitted that an increase in sales, but less staff, could result in a productivity bonus, but said that the productivity bonus was less than the sales bonus and that what a manager should be chasing is long term sales growth for a team.
There is not much of the evidence of Mr Bruggy and Mr Ridge that was seriously in dispute. I accept their evidence as to the normal requirements for store re-stocking, the emphasis ALDI placed on task rotation and the role of the store manager. It was logical, consistent with the documents and objectively given. I accept there were conversations between Mr Ridge and Ms Hunt about the role of store manager. I am not prepared to accept that the discussion was limited to the period whilst Ms Hunt was on a suitable duties plan, as there would be no reason why the numerous matters he mentioned she should perform would be limited to the period while she was on light duties. I have already indicated that I do not accept that the international audit required additional time in re-stocking, but I am prepared to accept that it may have caused some stress to all concerned. I doubt that the conversation about the audit occurred in the terms stated by Ms Hunt; though I am prepared to accept, given the text messages from Mr Ridge, that some conversation (probably along the lines of the text messages) would have occurred.
Safe system of work
The obligations of an employer are to take reasonable care to avoid exposing its employees to an unnecessary risk of injury.[2] That requires an employer to devise and implement a safe system of work; including the enforcement of such a system.[3]
[2]Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627.
[3]McLean v Tedman (1984) 155 CLR 306, 313.
Section 305B of the Workers’ Compensation and Rehabilitation Act2003 (Qld) further provides as follows:
“A person does not breach a duty to take reasonable precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken precautions.”
There is clearly a risk that if a person were to undertake repetitive tasks, including by manual handling, they might be injured. ALDI knew of that risk, as is apparent from the manuals and training modules in evidence. The same evidence suggests that the risk should be assessed as “not insignificant”.
On behalf of Ms Hunt it was submitted that ALDI was obliged to:
(a) Implement manual handling training relevant to the risks associated with repetitive handling tasks;
(b) Implement a procedure to ensure adequate human assistance, especially in the period prior to audits;
(c) Implement a procedure to ensure that excessive hours were not worked;
(d) Implement a procedure to ensure rotation of tasks to ensure that the plaintiff was not engaged in repetitive manual handling tasks for extended periods of time; and
(e) Conduct a risk assessment to identify potential risks with repetitive manual handling.
As to subparagraphs (a), (d) and (e) of this submission, there is clearly a risk that if a person were to undertake repetitive tasks, including by manual handling, they might be injured. ALDI knew of that risk, as is apparent from the manuals and training modules in evidence. The same evidence suggests that the risk should be assessed as “not insignificant”. The evidence already dealt with is that ALDI undertook manual training and placed emphasis upon rotation of tasks.
The warnings and education given was a reasonable response to the risk. Ms Hunt was clearly aware of the risks and the proper procedure. It may be that closer attention should have been given by ALDI to the risk of repetitive lifting tasks in particular, but as I have stated I am not satisfied that Ms Hunt spent the time she alleged in stocking and re-stocking, let alone that she was required to do so, or that she suffered any injury as a result of the time she did spend stocking and re-stocking.
As to sub-paragraph (b), although there was a passing comment from Mr Bazzano, it was not seriously suggested that the number of staff employed at the store was inadequate. Certainly no evidence was adduced from Ms Hunt on the subject, nor were Mr Ridge or Mr Bruggy cross examined on the subject. The only evidence adduced related to staff said to be underperforming, absent due to calling in sick or new.
Three out of 19 staff were said by Ms Hunt to be underperforming. It is unnecessary to identify these persons by name as none were called to give evidence or given some way to challenge the evidence of Ms Hunt. One person (Mr P) was said to constantly call in sick. Ms Hunt said that she could not do much about that situation other than to request a doctor’s certificate. Another person (Ms L) was also said to call in sick regularly. Ms Hunt said that she arranged for warnings to be given to this employee by the area manager, and believed that occurred. Ms Hunt said she recommended termination a number of times to Mr Ridge, but that he said that he was concerned about an unfair dismissal case arising. In cross-examination, Ms Hunt agreed that she could have taken up the issue with Mr Bruggy, but she said she did not do so. It would appear that not even a warning was given to the third person identified as an under performer (Mr C).
Ms Hunt did not suggest that she had requested additional people be employed and that had been refused.
None of this consists of convincing evidence that ALDI failed to provide adequate human assistance.
As to staff members being occasionally sick, there was a system that if a store were short-staffed on a particular shift the manager of the store could request staff from another ALDI store in the area. The evidence is that on one of the days, Ms Hunt was unable to find another staff member and so was required to herself work a longer shift that day.
It was suggested in evidence that extra pressures were placed upon Ms Hunt by reason of the closure of a nearby ALDI store. It is not suggested, however, that Ms Hunt had not been told of the closure of the store. In fact, the evidence is that Ms Hunt knew of the closure and that it was her responsibility to prepare the staff rosters to take account of that closure.
There is no compelling evidence, however, that the lack of staff or closure of the store required that Ms Hunt personally perform packing work for the unusual lengths of time, as suggested in parts of her evidence. With respect to her evidence as to the time she spent in that period packing, it is difficult to not conclude that Ms Hunt was exaggerating the time spent.
Whilst I accept that the evidence of Mr Bruggy was that it was not expected stores prepare for the international audit, having been told that the store was to be audited, it would not be surprising that Ms Hunt spent time doing the ‘compliance checks’ to which she referred in giving evidence. That did not involve, as Ms Hunt accepted, picking up boxes and restacking shelves. and was limited to Ms Hunt working additional hours on Thursday, 7 November doing compliance checks.
As to sub-paragraph (c), by her job description, however, Ms Hunt was responsible for assigning work, directing and rostering staff and for controlling and reviewing staff performance. Her responsibilities included involvement with the planning of staff with the area manager and recommending to the area manager when staff should be terminated or face disciplinary action. Ms Hunt was also responsible for managing store resources effectively and for monitoring staff training, development and performance. She was also to control annual leave and absenteeism of staff. Ms Hunt accepted in evidence that it was her responsibility to ensure that she had adequate staff on roster.
Ms Hunt was employed on a 45 hour week. Her evidence was that she could take time in lieu if she worked longer hours. It was a matter for her discretion. I am not satisfied that ALDI had an obligation to do anything to prevent Ms Hunt, as store manager responsible for staff and her own working hours, working the hours she did in the relevant period.
Conclusions on liability
In the result, even if I had been satisfied that Ms Hunt suffered the injury diagnosed by Dr Perkins and that this was caused by her working conditions, I do not find that ALDI breached its duty of care to Ms Hunt.
The claim is accordingly dismissed.
QUANTUM
Medical evidence
It is necessary to address the question of quantum in case I am wrong on any of these conclusions. This is not a simple task given that such an assessment depends on the medical evidence which I have addressed earlier.
In his first report, Dr Perkins considered that Ms Hunt was unable to perform duties required as a store manager and, in particular, repetitive pronosupination activities of lifting cases of fresh produce, meat and ambient goods that weigh between two and 20kgs up to 150 to 200 times per day. He considered that she had sustained a peripheral nerve impairment of her left arm and had a 3% whole person impairment under the AMA Guidelines. In that report, Dr Perkins did not make it clear whether that was the result of any work related injury.
In his second report, Dr Perkins said it was likely that the repetitive nature of the heavy manual work through extended periods that Ms Hunt undertook at ALDI caused the degeneration within her arm and forearm tendons which caused the cascade that led to the angiofibroblastic dysplasia within the tendons. Dr Perkins described Ms Hunt as having a 3% upper body impairment and a 2% whole person impairment.
Dr Allen, consistent with his approach generally, did not think that there was any objective pathology and hence insufficient evidence to assert a work related injury or any impairment. He did not think that she was incapacitated for any work.
I have previously indicated that I do not accept the opinion of Dr Perkins.
General Damages
The claim for general damages is to be assessed in accordance with the Civil Liability Regulation 2014 (Qld). Even if I had decided otherwise, I am far from convinced that general damages in the amount of $12,880 should be assessed on the basis that Ms Hunt had a moderate elbow injury assessable under item 103 with an ISV of 8; as submitted on behalf of Ms Hunt.
On behalf of ALDI, it was submitted that even if Dr Perkins’s opinion was accepted, the injury would fall under item 104, a minor elbow injury, given that Dr Perkins assessment was for a 2% impairment and the injury was not to her dominant limb.
Item 103 is for an injury which would cause moderate long term disability and item 104 is for an injury which would cause no permanent damage and no permanent impairment of function.
If I had accepted the opinion of Dr Perkins, item 104 would not be readily applicable and a more appropriate assessment, in my view, would be an ISV of 6, that is at the lower end of item 103. That is $9750.
Out of pocket expenses
If I had accepted the medical opinion of Dr Perkins, I would have assessed the out of pocket expenses as claimed; namely the medical expenses in the amount of $2,775.86 paid by Workcover, the amount of $526.45 repayable to Medicare and the agreed amount of other expenses namely $1,447.28; with interest.
Economic loss
Ms Hunt resigned her position on 9 December 2019; effective 6 January 2020. Ms Hunt worked for Puma for roughly a year and a half and then went to Dowell Windows for three months. At Dowell Windows she was a customer service supervisor doing administrative computer work. Ms Hunt then obtained employment at United Petroleum. This is a role in administration and does not involve any lifting. It was not suggested that she had any period when she was not employed.
On behalf of Ms Hunt, it is submitted that the difference until trial between the income she would have earned at ALDI and the income she in fact earned was $8,282.30. It is not quite clear how this sum was calculated.
ALDI submits that, accepting the evidence of Dr Allen, no past loss of income is recoverable, but says that otherwise the difference between the pre-injury earnings and her post injury earnings until trial was a total of $29,874.95.
This sum was calculated by adding the net income that ALDI submits she would have earnt working for it, and subtracting the net income she did earn as appeared in her income tax returns.
That is a reasonable approach.
Adopting the sum submitted by ALDI, compensation for loss of superannuation at 10% is $2,987.50.
As to the future, on behalf of Ms Hunt it is submitted that Ms Hunt is entitled to compensation for loss of earning capacity, and that should be assessed having regard to the reduced income that Ms Hunt is currently earning. It is submitted that this is $275 per week. Ms Hunt was born on 5 December 1983 and has 27 years until the statutory pension age of 67 years. That is a total of $273,075 on the 5% tables.
ALDI submits that no future economic loss is recoverable, but if Dr Perkin’s evidence was accepted, it should be assessed on the basis that the loss was $1,461 per year; the difference between her income for the financial year ended 30 June 2019 and the financial year ended 30 June 2023.
The submissions made on behalf of Ms Hunt assume that she would continue to remain employed at ALDI. I am not convinced that this is a correct assumption as I have indicated I am not prepared to accept that Ms Hunt has a disabling condition which required her to leave that employment. The submissions made on behalf of ALDI, however, failed to take into account the evidence as to what Ms Hunt could have earned if she remained employed at ALDI.
If I had accepted that the injury was as diagnosed by Dr Perkins and hence work related, it would be reasonable to make some allowance for his advice that she should avoid repetitive lifting tasks. Such an allowance would need to take cognisance of the fact that between the injury and trial Ms Hunt was able to obtain alternative employment without evidently any difficulty and in 2023 earned a wage comparable with the one she had earned at ALDI.
On that basis, it is difficult to do otherwise than assess the loss on a global basis. A reasonable allowance for future economic loss in the circumstances would have been $30,000.
Loss of superannuation at 11% would be $3,300.
Future Expenses
Ms Hunt claims an amount of $5 per week for Panadol and Nurofen, when necessary. Ms Hunt indicated that she rarely took pain relief, and chose to avoid situations which caused her pain.
If I had decided that the injury was work related, nevertheless, I would have awarded a lump sum of $2,000 for that contingency.
Ms Hunt also claims the cost of nerve decompression surgery; on the basis that it was recommended by Dr Perkins. This was on the basis of his previous diagnosis and there is no basis for such an award now.
Summary
The claim is, in any event, dismissed.
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