Loveday v Woolworths (Qld) Ltd

[1994] QCA 219

IN THE COURT OF APPEAL	[1994] QCA 219
SUPREME COURT OF QUEENSLAND

C.A. No. 240 of 1993

Brisbane

[Loveday v. Woolworths (Q'land) L]

BETWEEN:

ANNETTE JOY LOVEDAY

(Appellant)

AND:

WOOLWORTHS (Q'LAND) LTD

(Respondent)

The Chief Justice
Mr Justice McPherson

Mr Justice Demack

Judgment delivered 17/06/1994
Judgment of the Court

APPEAL ALLOWED. THE JUDGEMENT GIVEN ON 5 NOVEMBER 1993 SHOULD BE VARIED BY DELETING THE WORDS "THE PLAINTIFF RECOVER NOTHING AGAINST THE DEFENDANT, AND THE DEFENDANT RECOVER AGAINST THE PLAINTIFF ITS COSTS OF DEFENCE TO BE TAXED", AND BY SUBSTITUTING IN LIEU THEREOF "THE PLAINTIFF RECOVER $18250 AGAINST THE DEFENDANT AND THAT THE PLAINTIFF RECOVER AGAINST THE DEFENDANT THE COSTS OF THE ACTION TO BE TAXED". THE DEFENDANT PAY THE PLAINTIFF'S COSTS OF THE APPEAL TO BE TAXED. INTEREST ON THE AMOUNT OF THE JUDGMENT AT TEN PERCENT PER ANNUM TO RUN FROM 5 NOVEMBER 1993

CATCHWORDS: NEGLIGENCE - master and servant - plaintiff injured when carton of margarine fell on her - risk of neck injury foreseeable - safe system of work - weight and positioning of cartons meant an unnatural lift

Counsel:  D McMeekin for the Appellant R Stenson for the Respondent

Solicitors: Macrossan and Amiet t/a Quinlan Miller

Treston for

the Appellant

Barry Beaverson & Stenson for the Respondent

Hearing date: 30 May 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 240 of 1993

Before the Court of Appeal

The Chief Justice
Mr Justice McPherson

Mr Justice Demack

[Loveday v. Woolworths (Q'land) L]

BETWEEN:

ANNETTE JOY LOVEDAY

(Appellant)

AND:

WOOLWORTHS (Q'LAND) LTD

(Respondent)

JUDGMENT OF THE COURT

Judgment delivered 17/06/1994

This is an appeal from the decision of a District Court Judge sitting in Mackay. Mrs Loveday, who had worked for Woolworths (Q'land) Ltd ("Woolworths") for eighteen years, was placed in charge of the dairy section at Woolworths Canelands store in 1985. On 25 July 1990, she was injured in the course of her employment when a carton of margarine fell on her. She commenced proceedings claiming negligence and breach of statutory duty. The learned District Court Judge dismissed her claim, and from this decision she has appealed.

The circumstances in which she was injured are not in dispute. The issues are whether the facts establish negligence on the part of Woolworths and, then, whether Mrs Loveday is in part to blame for her injuries.

At about half past two in the afternoon of 25 July 1990, Mrs Loveday's superior, Mr David Baulch, asked her to get a carton of margarine from the coldroom to fill the shelf out in the front of the shop. The coldroom was fitted with shelves around its walls. The particular carton was on a shelf 1535 mm above floor level, and another carton containing a different type of dairy produce was on top of it. Each carton was 220 mm high and 560 mm long, and weighed between 12.5 and 13 kgs. Mrs Loveday was 1650 mm tall.

On the floor of the coldroom were a number of pallets of cartons. The height of those cartons was approximately the height of the relevant shelf. One of these pallets was in front of the part of the shelf where the particular carton of margarine was placed. Mrs Loveday had frequently removed cartons from the shelves in the coldroom. If she required a carton which had another carton resting on it her practice was to hit the uppermost carton and then to pull out the lower carton. The blow was struck to loosen the two cartons which tended to adhere to one another. She had never received instructions about safe practices in the coldroom.

On 25 July 1990, she saw that she could not reach across the cartons on the pallet and reach the carton which she had to move. She took a milk crate and placed it near the cartons on the pallet. She stood on the crate, reached across, struck the uppermost carton and began to pull on the lower carton. The uppermost carton fell on her. In cross- examination she admitted that it was commonsense to remove the uppermost carton first.

Among the issues raised by Mr Kahler, the engineer called by the plaintiff, were the following:

a)	stacking the shelf with one level of cartons;
b)	planning the layout of the coldroom so that aisle ways are defined and kept clean;

c) training in lifting techniques;

d) many undesirable features". provision of a suitable platform from which to reach The engineer said, "The work environment ... contained

In the course of his reasons for judgment the learned District Court Judge said:

"Mr Kahler did not propose any methods that could reasonably be adopted by the employer in this case, it seems to me, which would have avoided this accident as distinct from identifying features which may be said generally to be undesirable. I can appreciate that the system generally may be said to have had some undesirable aspects to it, but I cannot be satisfied that if they had been removed the plaintiff's accident is likely not to have happened.

I can appreciate that there will be some cases of chaotic systems in which it is asking too much of employees to adopt what comparatively might be refined behaviour, but that is not, in my view, the case here. It is important, it seems to me, to remember that I am primarily concerned, in this case, with what position obtained in the coldroom on the day in question. By pure coincidence, the top of the load on the pallet provided, it seems to me, a convenient place on which to rest the uppermost box if it had been extracted first.

The plaintiff agreed in cross-examination, in my view accurately, that it would be a matter of commonsense that to avoid the risk of the uppermost carton falling one should remove it first and then remove the required carton. This could involve pulling the uppermost carton onto the top of the pallet load. This procedure would not be lengthy, it would not necessarily involve replacing the uppermost carton back on to the shelf. I accept that the plaintiff was required to obtain the carton quickly, but the obvious method, outlined by me above, would not cause any relevant delay. That process might logically also involve moving the top box by manipulating it in order to break any bonding."

The duty placed on Woolworths was that of a reasonably prudent employer and was a duty to take reasonable care to avoid exposing its employees to unnecessary risks of injury : Hamilton v. Nuroof (W.A.) Proprietary Limited (1956) 96 C.L.R. 18 at p. 25. A risk of injury, which is unlikely to occur, may nevertheless be plainly foreseeable, because the concept of a risk of injury being "foreseeable" is not a statement as to the probability of its occurrence but merely an assertion that the risk is not one which is far-fetched or fanciful: Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at p. 47. A risk of injury is unnecessary if, by the adoption of some reasonable form or precaution or safeguard, it could have been eliminated or minimised: Neill v. N.S.W. Fresh Food and Ice Pty Limited (1963) 108 C.L.R. 362 at p. 370. In taking care to avoid injury to an employee, the employer is bound to have regard to any risk that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing an allotted task: McLean v. Tedman (1984) 155 C.L.R. 306 at p. 312.

It will be seen from this brief resumé of the principles to be applied, that his Honour overstated the issue when he said that, if the "undesirable aspects" of the system had been removed, he could not be satisfied that "the plaintiff's accident is likely not to have happened". If there is a foreseeable risk of injury, the duty is to take whatever steps may reasonably be called for to eliminate it or minimise it. Here there is nothing far-fetched or fanciful about the risk of injury to which Mrs Loveday was exposed. She was lifting a carton weighing between 12.5 and 13 kgs from a shelf by reaching across to her right over a pallet of cartons. That in itself is an awkward lift.

Added to that was the second carton which she tried to dislodge. Further, she apparently was in the process of stepping down from the milk crate as soon as she began to withdraw the carton from the shelf. When the activity is looked at, it clearly involves a significant risk of injury.

The fact that the pallet with its load of cartons provided a convenient place on which to rest the uppermost box if it had been extracted first does not show that Woolworths had discharged its duty of care. The pallet was in place "by pure coincident" and a safe place of work is not established fortuitously.

The fact that Mrs Loveday agreed that it was commonsense to remove the uppermost carton first may be significant on the issue of contributory negligence. It is not determinative of the question of Woolworths' duty of care. If Mr Baulch, as the relevant superior, had looked at the situation that afternoon, it is not obvious that it was likely that he would have told Mrs Loveday to remove the uppermost carton first, and rest it on the cartons on the pallet. To do that would involve Mrs Loveday in lifting a 12.5 to 13 kg carton from above her head height, placing it on the cartons on the pallet in a position that did not impede the removal of the carton she needed, reaching across to that carton, removing it and placing it on some convenient place and then returning the first carton to the shelf. Arguably this procedure exposed her to a greater risks of injury than the course she followed.

The fact that Mrs Loveday had performed this task many times without injury may show there was not a high probability that injury would occur. It does not show that this risk was not foreseeable or that there was no obligation on the employer to take steps to minimise the risks of injury to the employee which did exist.

Alternatively there should have been a precise instruction that if heavy cartons were placed on the shelf on top of cartons to be selected, they should first be separately moved to an adjoining position on the shelf and adequate access should have been provided to enable this to be done without strain.

The first three matters referred to by Mr Kahler would all have reduced the risk of injury. They were not so expensive that they could not reasonably be adopted. The learned District Court Judge's decision in respect of the defendant's negligence cannot be sustained.

In respect of contributory negligence, this is a case where the employee was left to do the best she could with an overcrowded coldroom. She had been doing that for years, and had not sustained injury. On 25 July 1990, the inadequacies of the place of work defeated her. This does not amount to a lack of care for her own safety.

His Honour assessed the quantum of Mrs Loveday's damages, after deducting the refund due to the Workers' Compensation Board, at $18,250.

The appeal should be allowed. The judgment given on 5 November 1993 should be varied by deleting the words "the plaintiff recover nothing against the defendant, and the defendant recover against the plaintiff its costs of defence to be taxed", and by substituting in lieu thereof "the plaintiff recover $18,250 against the defendant and that the plaintiff recover against the defendant the costs of the action to be taxed". The defendant should pay the plaintiff's costs of the appeal to be taxed. Interest on the amount of the judgment at 10 percent per annum should run from 5 November 1993.