Metcash Trading Limited v Gheorghe Scripcariu

[2006] NSWCA 78

Reported Decision: (2006) Aust Torts Reports 81-841

Court of Appeal

CITATION:	METCASH TRADING LIMITED v GHEORGHE SCRIPCARIU [2006] NSWCA 78
HEARING DATE(S):	2 February 2006
JUDGMENT DATE:	11 April 2006
JUDGMENT OF:	Mason P at 1; Santow JA at 55; Ipp JA at 56
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Extends to duty to establish, maintain and enforce safe system - NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Duty to provide adequate instructions – Lifting work – Where employees expected to maintain “pick rate” – Whether encouraged unsafe lifting techniques – Whether ongoing instruction necessary - NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Duty to provide adequate instructions – Lifting work – Where storage warehouse configuration rendered instructed safe lifting techniques impracticable – Not safe system - NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Duty to provide adequate instructions – Use of instructional video – Where employee from non-English-speaking background (ND)
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Czatyrko v Edith Cowan University [2005] HCA 14, 79 ALJR 839 Hadid v Redpath [2001] NSWCA 416 Hume v Walton [2005] NSWCA 148 McLean v Tedman (1984) 155 CLR 306 TNT Australia Pty Ltd v Christie [2003] NSWCA 47). Vozza v Tooth & Co Ltd (1964) 112 CLR 316
PARTIES:	METCASH TRADING LIMITED v Gheorghe SCRIPCARIU
FILE NUMBER(S):	CA 40395/2005
COUNSEL:	Appellant: J E Sexton SC Respondent: S G Campbell SC/ R I Harrington
SOLICITORS:	Appellant: Thompson Cooper Lawyers Respondent: Marsdens Law Group
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 537/2004
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ

CA 40395 OF 2005
DC 537 of 2004

MASON P
SANTOW JA
IPP JA

Tuesday 11 April 2006

METCASH TRADING LIMITED v Gheorghe SCRIPCARIU

JUDGMENT

1 MASON P: The respondent injured his lower back when working at the appellant’s warehouse premises. He was not at that stage an employee, but it is common ground that the appellant owed him a duty of care as if he were (cf TNT Australia Pty Ltd v Christie [2003] NSWCA 47).

2 In the District Court, Ashford DCJ found the appellant liable for failure to exercise reasonable care in providing a safe system of work.

3 The respondent was a storeman loading orders of grocery stock onto a power-operated pallet trolley known as a Crown forklift. The goods came from pallets arranged in aisles that were about 100-200m long. Some stacks of goods were placed under a shelf, about shoulder high for the respondent, that held an upper stack. This meant that the storeman had to bend under the shelf to pick up goods at the back of the pallet.

4 A computer generated a list of the goods required by a retailer customer, apparently in a sequence that allowed the operator to move up and down the aisles in an orderly sequence. Many storemen worked at similar tasks. At the commencement of the shift the worker would be given a “pick” order that set out the number of picks to be done and the time allocated. A large order could have over 200 picks. Once the trolley was loaded with its order it was wrapped with shrinkage wrap and left in dispatch. The respondent estimated doing five to ten pick orders per day. He worked principally in the afternoon.

5 The system recorded the time expected by the appellant to be taken to fill an order. After an initial period for familiarisation, each storeman was expected to achieve a 100 per cent pick rate. Employees who fell behind regularly were “counselled”. The respondent, who had not yet become an employee, believed that his well paid job might be at risk if he did not achieve the 100 per cent rate consistently. The best rate he achieved was in the order of 106 per cent, but he found it more difficult to meet the standard on longer runs. If the standard was not achieved on a particular run, he would rush to catch up his percentage on the next order.

6 The respondent’s testimony and the evidence of a video shown to this Court (Ex 4) indicated that it was quicker and easier for the storeman if items were at the front of the pallet. Frequently they were not, and the storeman would have to bend into the stack to pick them up. Some boxes were damaged and could not be picked up and it would be necessary to move past those broken boxes, losing time in doing so. Often the boxes were stuck together and it would be necessary to separate them. The grocery items were in cartons of varying bulk and weight, some weighing up to about 25 kg.

7 The respondent was born in 1965 in Romania. He came to Australia in 1988. His English was adequate, but the transcript shows that it was not his native tongue. This is relevant to the main issue in the appeal as to the correctness of the judge’s understanding of the respondent’s description of the mechanics of his accident.

8 The respondent was employed by a body hire firm when first sent to the warehouse in September 1999. He underwent an induction course which took three days. Instruction included a video and written information that demonstrated correct lifting techniques. These emphasised the importance of standing square-on and close to a load, bending the knees, and using a straight back. One of the written instructions was (Blue 208):

Never combine lifting with the twisting of your body. If you must turn, do it by moving your feet. Twisting causes the worst type of back injuries.

9 The induction video (Ex 2) showed three recurring scenarios, one of which involved goods on or near floor level at the back of a pallet. The instruction advocated use of a hook to drag items at the back towards the front of the pallet.

10 The case for the plaintiff at trial consisted of the evidence of the plaintiff and that of Mr Lasini, a fellow worker. The defendant led evidence from various storemen and managers involved in the operations at the warehouse.

11 Expert evidence for the plaintiff at trial included the reports of Dr Neil Adams, an ergonomic and safety management consultant. This was not the subject of cross-examination. The defendant’s expert evidence came from Dr J Olsen, a consultant physician in occupational and environmental medicine and an engineer. He gave additional oral evidence and was cross-examined on his two reports. Dr Adams responded to Dr Olsen’s principal report in writing.

12 Dr Olsen had regard to a video prepared in 2004 by the appellant to demonstrate how a storeman went about his tasks. In this Court it was referred to as a portable view. Portions of the video were shown to the Court. The video showed a Mr Adji going about his work at a measured pace, not apparently under any pressure. What was, however, striking were the number of occasions in which Mr Adji lifted “inappropriately”, compared to the induction video. Again and again he bent into the back of a pallet and brought out a load, twisting as he did so, before placing the load on his trolley. There was no sign of lifting in the “robotic” manner advocated in the appellant’s training video. Mr Adji was called as a witness. He said he believed that he was lifting properly, yet he clearly was not, as several of the appellant’s later witnesses acknowledged.

13 There is no dispute about the respondent having suffered a “frank” injury during the afternoon shift on 5 January 2001 when he picked up a box of Coca Cola that contained eight two litre bottles and weighed approximately 16kg. The medical evidence showed that the respondent suffered a discal injury to his lumbar spine that precipitated continuing soft tissue injury and exacerbation of a depressive psychiatric condition. It is also common ground that the damages flowing from the injury were correctly assessed at $245,105.54.

14 The respondent never contested that he knew the correct way to lift boxes. He had been a weight lifter in his native Romania. But it was his case that he had been led to fear that he would lose his job if he did not maintain a 100 per cent pick rate (Black 68-69). On 5 January 2001 he was on the verge of being offered a permanent position because the appellant regarded him as a good worker (Black 70). He explained the accident on the basis that he was hurrying to maintain the desired rate and that, in these circumstances, he did not follow the lifting instructions to the letter.

15 The respondent’s evidence that the 100 per cent pick rate was difficult to achieve consistently was supported by the evidence of a fellow worker, Mr Lasini. Mr Lasini also told of instances where he was “counselled” for falling behind (Black 98). Mr Lasini said that he had never seen a supervisor stop somebody and tell him that he was not lifting properly (Black 91). He also said that it was impossible to maintain a 100 per cent pick rate (Black 95).

16 The appellant’s Mr Blazejko, who was a supervisor, said that he had never pulled up people for twisting their back as they lifted (Black 127).

17 The respondent’s evidence about the mechanics of the accident is adverted to in four paragraphs of the judgment (J9, 16, 79 and 83). Her Honour’s reasons for concluding that there was negligence are at J79-83. It is convenient to set these paragraphs out:

9. On 5 January 2001 at work on an afternoon shift he had done 3 to 5 picks. He thought they were big orders as it was a Friday. At about 6.30pm to 7.00pm he was attempting to catch up on his pick rate which had dropped to about 90-92 per cent. He said he picked a box of Coca Cola which contained eight two litre bottles from a half full pallet. He bent at the knees and picked up the box but then needed to turn to the left to place the box on the trolley. As he rotated to the left whilst lifting he felt pain in his left lower back. At that stage he was unable to move because of the pain. He sat for a few seconds. He put the box down. He did not finish his shift.
16. .… In respect of the events of 5 January 2001 he maintained he had been lifting and twisting to the left as he did so, working quickly in order to catch up on his pick rate. He agreed he had lifted the box and then when he was upright had turned to the left.
79. The plaintiff submits that if the plaintiff did no more than establish the system as a whole was unsafe when his injury occurred this would satisfy the test of causation. At the time of injury the plaintiff said it was necessary for him to bend into and under the racks in order to lift a 2 litre box of coca cola containing 8 bottles. The pallet was half full and thus in a bent position he picked up the box and then needed to twist his body to come out and place the box on the trolley.
80. From the videos shown safe lifting techniques were not always followed by the operators. It is clear instruction was given on safe lifting techniques however unless that technique is followed and can be adopted and monitored it seems foreseeable injury will occur especially in a warehouse where some heaving items are to be lifted often from awkward and confined spaces. Mr Blazeko is an assembly supervisor with the defendant and was in agreement that the workers shown on video had used unsafe lifting techniques on a number of occasions. He agreed that in a situation where there was a half empty pallet and a worker had to go underneath the storage above to bend and obtain the items then it was necessary to lift and twist in order the collect the items.
81. From the evidence it is clear there has been some change to the system of picking employed at the warehouse since the time of the plaintiff’s injury. A voice activated system is now in place which apparently places less pressure on workers to complete a task in any particular timeframe. As well it appears there has been some modification to the configuration of the warehouse in particular noting that one level storage has been adopted for heavier items although Mr O’Shea the warehouse manager did not agree that pallets back to back and raising the rows of racking would be an effective reconfiguration. He did however agree that one of the changes which had been made was that the height of racks above heavy items had been increased, and for convenience a promotional alley for fast moving stock had been created which has no second level and allows better access for pickers. It also appears items such a toilet paper and cereal have no second level of racks.
82. The defendant submits that to introduce a substantial reconfiguration of the warehouse was not practical in monetary terms and the plaintiff has not submitted any evidence as to the cost or practicality of any of the alternatives which were suggested.
83. It seems to me the reconfiguration which has been done to allow promotional lines or heavy and bulking items to be stacked in a manner which does not require an upper level is a sensible and practical method of dealing with such items. Obviously smaller items can be stacked on shelving without causing particular difficulty to a worker in accessing them. It seems to me unreasonable to expect a worker to move into a pallet underneath shelving or racking in order to lift heavier items and it seems almost inevitable that when items at the back of the pallet are to be lifted it is necessary for bending and twisting movements to be adopted by a worker thus taking away any ability to follow proper lifting methods. Had bottles of coca cola been easily assessable without the need to bend and lift and twist in removing them to the pallet then it may well be the plaintiff would not have suffered injury. It is clear the defendant expected workers to maintain a high pick rate. In doing so it seems likely less attention would be paid to observing safe lifting techniques and I am not satisfied in any event there was proper observation of the workers to the extent they were corrected if safe lifting techniques were not being observed. That was amply demonstrated on the video which was shown to the Court. I accept the plaintiff’s evidence as to the manner of his working and that he suffered injury in the manner described by him in the course [of] his employment on 5 January 2001 as a result of an unsafe system of work.

18 The greater part of the judgment had summarised the evidence witness by witness, sometimes without clear indication as to acceptance or otherwise of the testimony. The conclusory paragraph (J83) blends fact-finding with evaluation as to negligence. The fact-finding is at times implicit, at other times expressed very generally, such as the acceptance of “the plaintiff’s evidence as to the manner of his working”. A judgment structured in this way may run the risk of being challenged because it leaves the losing party uncertain as the core reasoning and significantly impedes the process of appellate accountability. See Hadid v Redpath [2001] NSWCA 416, Hume v Walton [2005] NSWCA 148 at [69]-[70]. The appellant did not seek a new trial on this ground.

Did the trial judge correctly summarise the respondent’s evidence about the accident?

19 The appellant is critical of the opacity of the judge’s reasoning at various points, but accepts that the immediate cause of the injury was found to be that the respondent lifted and twisted concurrently as he brought out the carton that was stacked towards the back of the pallet.

20 This manner of lifting was not in accordance with the safe technique as instructed. There was no use of the hook made available to drag a carton to the front of the pallet where it could be lifted without the need to bend the head below the “roof” formed by the second level of pallet at shoulder height. More significantly, there was a twisting motion in the course of the lift itself. This was contrary to the recommended process of keeping the body square-on to the load until it had been lifted from the floor to a comfortable, waist-high position, then using the feet to turn the whole body to face the pallet that was on the tines of the Crown forklift.

21 Senior counsel for the appellant, Mr J E Sexton SC, submitted that the respondent’s evidence did not support the key finding that he twisted his back in the process of lifting the box off the pallet and out into the aisle. It was submitted that the evidence was to the effect that he had lifted the box “properly” in the sense that no turning occurred until he was standing upright in the aisle.

22 In my view, the trial judge has not been shown to have erred in her understanding of the evidence.

23 There are three passages of the respondent’s evidence bearing upon what he was endeavouring to convey about the mechanics of the accident. I shall emphasise the relevant sections.

24 The first passage is (Black 27-8):

Q. In the first three days that you had the induction --
A. Yes.
Q. --- okay, that’s what I’m asking now, was there discussion of manual handling techniques, say ---
A. Yes yes.
Q. When you started to work in the job and to keep up with the hundred percent pick rate, were you able to maintain those techniques?
A. No no.
Q. Why is that?
A. Because you have to rush, you have to be quick, you cannot work like a machine, put like that. You cannot do that, you have to rush a little bit .
Q. You’re indicating – you’re giving evidence of a very staccato machine like method of moving your arms like a robot is that what --
A. Yes, like a robot, I was trying, I knew and the old fellows in there they told me is very very essential to keep my back straight and bend my knee. I was doing that because that’s basic and very very very important for a storeman. I was doing that but you have to rotate to – sometime you have to put on the left on the pallet and rotate and when you do that you rush a little bit, you go quick because you cannot – if you go like a robot style you never going to make a hundred, never. I know that for a fact.

25 The respondent uses the analogy of a robot to describe the lifting motion advocated in the instruction video. The video was shown to the Court and this description is understandable though somewhat exaggerated. The video, like the written instruction, advocates a sharp demarcation between the processes of lifting with the back straight and of turning after the load has been picked up. The latter process should be done by shuffling the feet around.

26 The second passage contains the evidence in chief about the accident (Black 29-31):

Q. And do you recall how you were going with the pick rate on this --
A. I was behind.
Q. Do you have any recollection of how far you were behind?
A. I think eight points or seven points or something. Ninety-something, I was ninety-something, ninety-two, ninety-three I believe I was.
Q. As a result of being behind by some extent, what were you doing?
A. I was going more faster.
Q. You tell us something happened, you told us that something happened on this day, perhaps if you would tell us what exactly happened on that day?
A. Well I was trying to catch up and I pick up boxes and I turn on the left for just --
Q. Could I stop you?
A. Yes.
Q. What box were you picking up?
A. Coca-cola big two litre coco-cola.
Q. How many bottles in the box?
A. Eight.
Q. Eight bottles of two, sixteen litres is that right?
A. Yes sixteen litres.
Q. And do you know how heavy they are from the labelling on the boxes?
A. Two litre.
Q. Sorry how heavy the whole box is ---
A. Two litre bottles.
Q. Yes but do you know what the weight is by looking at the label. I think it can be worked out anyway because --
A. The box sixteen litre I believe.

Q. Does that make sixteen kilos or not?
A. Sixteen kilos.
Q. Was the pallet a full pallet that you were taking them off or a half full pallet or an empty pallet or what was the situation?
A. About half.
Q. Half?
A. Half yes.
Q. And had you parked your Crown forklift as close as you could as you were instructed?
A. Yes yes yes.
Q. And what position was your body in?
A. I bend my knee and I pick up the box.
Q. Yes but were you --
A. And I --
Q. Your Crown forklift’s beside you, was your body at the side of it or was your back facing the Crown facing the work in front of you, which way were you facing?
A. My back on the Crown and I pick up the box and I have to turn to the left to put the box on the Crown, on the pallet.
Q. What happened with your feet when you pick the box up and you turn to put the box on the pallet, did they move or stay in the same position?
A. Of course I move, I move my half feet to your left --
Q. When you say you move your feet half feet to your left --
A. On the left-hand side.
Q. --- what happened to your upper body, what did you do with your upper body when you were lifting the box?
A. I remain straight, I pick, I have the box in my hands.
Q. Yes?
A. I rotated to the left to put it on the pallet and when I rotate my body I have big pain, I feel pain, I --
Q. Why did you rotate your body, why didn’t you move your feet fully around like a robot?
A. I did, I did. I did put half, kind of a half --
Q. Why did you only do a half move, what was the reason --
A. Half move to make it quicker to make it faster. I that half move and I put that box on the pallet. You cannot work like a robot again. You have to go faster.
Q. And what did you notice when you were doing that move?
A. Big pain, big pain in the back like a thunder pain, like -

27 The third passage is the cross-examination referable to the accident (Black 72-3):

Q. The way you’ve described what you were doing on the afternoon of 5 January when you injured your back, is that you were lifting a box and you twisted as you lifted it, is that right?
A. I twist to the left and I move my leg – I rotate my leg and I twist it to the left yes.
Q. You’ve told us that you lifted the box in that way because you were rushing to catch up, that’s what you told us isnt’ it?
A. Well every box – there is no way I work like that. I did rush a little bit.
Q. Do you understand it correctly that you knew that the way you were lifting the box on the afternoon of 5 January, wasn’t the best way of doing it but you did it the way you did it because you were rushing?
A. No that’s not true.
Q. At the time you were lifted the box and you twisted as you were lifting it, did you know that that wasn’t the appropriate way to do it?
A. I did it properly.
Q. You did it properly?
A. Yes.
Q. So you lifted it, and then you turned, is that right?
A. Yes that moved my leg to the west.
Q. So you lifted it in the way that you’d been instructed to do it?
A. Yes.
Q. And the way that you knew was appropriate based on the instructions you got from the defendant and from your weight lifting training and so on, is that right?
A. Yes that’s right.
Q. But notwithstanding that you did it in a way you’d been instructed, you still felt a pain in your back, is that right?
A. Of course I felt pain in the back.
Q. So you weren’t lifting the box in a way that you didn’t think was correct because you were rushing, is that right?
A. When I’m saying rushing, that doesn’t mean I running around. I just was a little bit quick. I was a little bit quicker than the video shows. I wasn’t running around like a crazy man.
Q. You lifted the box and then when you were upright, you turned to your left, is that right?
A. That’s right.
Q. And you moved your feet as you turned?
A. Yes I did.
Q. So you weren’t twisting your upper body, you were turning your whole body?
A. Yes I did.
Q. And notwithstanding doing that, you felt a pain in your back?
A. Yes.

28 In the appellant’s submission, it was not open to the trial judge to read this evidence as she did in concluding that there was a twisting motion while lifting the “pick”. The judge should have found that the injury occurred while the respondent was lifting appropriately.

29 The appellant points to the evidence in the second passage as to the pain manifesting itself at the time when the respondent “rotated to the left to put it on the pallet” (Black 31). More significantly, the appellant relies on the emphatic assertions in the third passage about the respondent lifting the box in the way he had been instructed.

30 These matters do not persuade me that the judge erred. In the first place, I am satisfied that it was open for the judge to construe the nub of the evidence to be that the respondent twisted his back while he lifted. This is reflected in his references to rushing in each of the passages; his emphasis in the first passage about not moving like a robot; and the references to “half feet” and “half move” in the second passage. The fact that the pain manifested itself late in the move does not establish that it was not caused by what happened earlier given that the whole process would have taken less than a second.

31 Secondly, due allowance must be made for the fact that the respondent did not have English as his first language. It is dangerous to focus on any single answer.

32 A third pointer to the accuracy of the judge’s perception is the first question in the third passage. Defence counsel clearly understood the respondent to have been contending that he had injured himself through twisting as he lifted, and because he forgot to move “like a robot” as he rushed to catch up his pick rate. The balance of the third passage did not nail down a retraction of this case by the respondent, although it came close and may have been open to this interpretation. The critical matter is that the trial judge did not read the totality of the evidence in this way. Error has not been established in her perception as summarised in the judgment.

33 The appellant accepts that it was open to the trial judge to accept the respondent as a witness of truth in relation to the mechanics of the accident, as she did (see J83).

Was there negligence in the appellant’s system of work?

34 The passage at J79-83 concludes that an unreasonably unsafe system of work contributed to the respondent’s failure to use a safe lifting technique.

35 The reasoning may be summarised thus:

• It was necessary for the respondent to bend into and under the racks to lift the particular load (J79, 83).

• The appellant’s expectation that workers maintain a high pick rate meant that less attention was paid to observing safe lifting techniques (J83).

• The practice of storing heavy items in awkward and confined spaces meant that it was practically necessary to lift and twist in order to pick them up given the time pressures. This was the widespread practice tolerated in the workplace, as evidenced by Ex 4 (J80, 83).

• Changes since the accident showed, as did common sense, that it was feasible to stack heavier items with greater accessibility (J81-83).

• The appellant had not done enough by way of “proper observation of the workers to the extent they were corrected if safe lifting techniques were not being observed” (J83).

36 These findings were well open on the evidence and the conclusion that the appellant had unreasonably failed to provide a safe system of work was one with which I agree.

37 Exhibit 4 was compelling evidence that it was commonplace for loads to be stacked beneath the overhanging shelf and for storemen to remove them in the manner that the respondent lifted the box of Coca-Cola when he injured his back.

38 It was open to the appellant to chose whether to stack particular loads in a confined or more open space (see eg the photograph at Blue 75). Yet if a heavy load was placed under a low roof and at the back of a pallet then the storeman would inevitably have to bend in to pick it up if the hook was not used for whatever reason. In practice, this was the way things were done and the storemen would twist as they lifted as soon as their head was clear of the overhanging shelf. Use of the safe, “robotic” method was theoretically available. But it was not a natural way of doing things, the need to lift in this manner was not adequately reinforced after initial training, and the time pressure to maintain the 100 per cent pick rate contributed to a system in which most lifting from the back of the pallet was done inappropriately. This became more dangerous with heavier packages.

39 It was open to the judge to prefer the evidence of Dr Adams, who pointed out the measures practically available with respect to the particular problem (see esp Blue 128, 130, 166). Dr Adams’ evidence also attested to the reasonable availability of a safer system. His was part of the evidence that amply supported the application of the Shirt calculus at J81-83.

40 In Czatyrko v Edith Cowan University [2005] HCA 14, 79 ALJR 839 the High Court recently described the employer’s duty of care in the following terms (at [12] omitting footnotes):

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

41 The appellant submits that her Honour’s conclusions were not open on the evidence and/or represent a failure to give due recognition to the principle stated by Windeyer J in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319:

For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.

42 There were several strands in the respondent’s case.

43 First there was the evidence of Dr Adams whom the trial judge preferred.

44 Secondly, the video prepared and tendered by the appellant that became Ex 4 provided unintended but significant corroboration as to negligence. The appellant’s later witness Mr Kovacs, a supervisor at the Blacktown warehouse, agreed that there were a number of instances depicted in Ex 4 showing Mr Adji using inappropriate lifting techniques (Black 198ff). My own viewing confirms this assessment. The video shows Mr Adji performing several “picks” by use of an unbroken (ie un-robotic) single motion involving bending over under a protruding pallet to pick up a box at ground level and twisting the back as he brought the box out to the aisle for placement on the forklift pallet, all this being done in a casual and fluid single motion. This appears to be similar to the mechanics of the process that had unfortunate consequences for the respondent.

45 Thirdly, Dr Olsen had provided a risk assessment for the appellant in 2000 (Blue 485), ie well before the respondent’s accident in January 2001. Dr Olsen expressed concern about heavy soft drinks cartons in the range of 16 kgs or more (Blue 537). He also pointed out the need for attention in relation to posture and reaches (Blue 537-8, 553-5). The very matters that contributed to the respondent’s injury were thus flagged for attention well before the accident.

46 It was I think faintly suggested by the appellant that the matters referred to at J83 or some of them had not been advanced at trial. In fact they were. There was evidence in the expert reports and the videos showing that storeman frequently had to stoop to get at boxes towards the back of the pallet at floor level. There was evidence that this was a matter of concern to the ergonomics experts (see Dr Olsen at Blue 537). There was evidence that this situation could be avoided in relation to bulkier or heavier boxes. This would have involved a reconfiguration of the warehouse with doubtless some additional expense. Her Honour addressed these matters at J81-83 and concluded, as she was entitled in my view, that the decision to leave matters as they were was not a reasonable response to the foreseeable risk of injury of the sort that did occur in the respondent’s case.

47 The appellant submits that it was always possible for a storeman to reach in to the back of a pallet; pick up a load while bending the knees and back; then move straight backwards, off and outside the pallet; then straighten the back and legs; then rotate to face the pallet on the tines of the forklift. This proposition has never been disputed. It represents the “robotic” technique demonstrated in the instructional video. It is also the “safe lifting technique” advocated in the appellant’s EMPLOYEE INDUCTION PROGRAM brochure (Blue 207), albeit that the brochure does not squarely address a situation where a load is being brought out from the back of a pallet where the lifter has to bend to keep his head from bumping the shelf at shoulder height and bring the load backwards off the lower pallet onto ground level.

48 The appellant submits that it discharged its duty of care by the system of instruction that demonstrated proper lifting techniques and impressed their importance on the respondent. It acknowledges the observation by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309 that:

It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee.

49 It is contended that the principle is confined to “repetitive work under strain”. In the appellant’s submission, this was not a fair description of the respondent’s task given that it was not in the nature of boring work on an assembly line or using a single machine and given the fact that the respondent performed a variety of tasks including walking, driving the forklift and making easy “picks”.

50 It is wrong, in my view, to read the passage in Braistina as if it were in a statute. One is dealing with the factual issue of breach of a well-accepted duty stated at a comparatively high level of generality. The passage in Czatyrko set out above shows, by the use of “particularly”, that the illustrative proposition cannot be restricted in the manner contended for by the appellant.

51 The passage at J80-83 explains why, in the particular case, the duty of care was not satisfied by the system of instruction. It also shows why that very system was undermined by the work practices condoned and encouraged through a combination of factors including the height of the shelf above the ground floor pallet, the system of stacking boxes all the way through to the back of the ground level pallet and the time pressure imposed by the requirement that storemen maintain the 100 per cent pick rate.

52 In the circumstances, the appellant did not discharge its duty of care by giving the instruction it did. This was a case where its obligation extended to establishing, maintaining and enforcing a safe system (McLean v Tedman (1984) 155 CLR 306 at 313). It unreasonably failed to do so.

53 Her Honour did not overlook the requirement for a plaintiff to establish that alternative measures were reasonably open to the employer. The warehouse reconfiguration discussed at J81-83 that was put in place after the accident was available as proof about what was reasonably practicable. Its absence when the respondent injured himself was also available to the tribunal of fact asked to infer an unreasonable work system. A system that involved placing heavier loads near the front of pallets and not under overhanging shelves was feasible. It did not require a single-shelf system throughout the warehouse. I agree with her Honour’s conclusions on these two steps towards the finding of liability and with her conclusion that the system contributed to the respondent’s injury.

54 The appeal should be dismissed with costs.

55 SANTOW JA: I agree with Mason P.

56 IPP JA: I agree with Mason P.

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