Michele Box v Liquorland (Australia) Pty Limited

[2005] NSWSC 598

CITATION:	Michele Box v Liquorland (Australia) Pty Limited [2005] NSWSC 598
HEARING DATE(S):	20, 21 & 22 September 2004 14, 15, 16 & 17 June 2005
JUDGMENT DATE :	24 June 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	1. Judgment for the defendant; 2. The plaintiff is to pay the defendant's costs of the proceedings ; 3. The exhibits may be returned.

CATCHWORDS:	Lower back injury allegedly suffered by reason of moving cases of beer - issues of fact - no question of principle.
PARTIES:	Michele Box (Plaintiff) Liquorland (Australia) Pty Limited (Defendant)
FILE NUMBER(S):	SC 20679/01
COUNSEL:	Mr G B Hall & Mr M Eagle (Plaintiff) Mr A B Parker (Defendant)
SOLICITORS:	G H Healey & Co (Plaintiff) Landers & Rogers (Defendant)

LOWER COURT JURISDICTION:

- 23 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

24 June 2005

20679 of 2001 Michele Box v Liquorland (Australia) Pty Limited

JUDGMENT

1 His Honour: The plaintiff claims damages said to arise out of injury suffered at work during her employment with the defendant. It is said that the injury was suffered on 3 August 1998 while she was working at the defendant’s Pagewood store (the store).

2 The hearing commenced on 20 September 2004. Initially, it continued until 22 September 2004.

3 The plaintiff was born on 28 November 1968. She completed her School Certificate at the end of 1984.

4 Between 1988 and 1995, she was employed by the Royal Australian Air Force. During that time, she underwent various courses.

5 The plaintiff married her husband on 15 June 1991. At all material times, he has been in the Navy. They did not reside permanently with each other until the end of 1995. She says that she gave up her employment with the RAAF so that they could live permanently together. There are no children of the marriage.

6 The plaintiff was employed by the defendant between January 1996 and September 1999 as a service assistant. She described her duties as follows:-

The serving of customers, retrieval of stock, putting stock away, if a delivery came I went and got the delivery if there was nobody else in the store and put away all those deliveries, help to put those deliveries away. [Tr 20.9.04 p11]

7 On 3 August 1998, she had been rostered off work. Her version is that she received a telephone call from the manager (Steve Wiblen). She gave the following evidence:-

Q. What happened in relation to that day in relation to your work?
A. My manager rang me up and asked me to do some overtime because they had just received a delivery of seven pallets of VB.
… … …
Q. What did he say to you and what did you say to him, doing the best you can?
A. He just asked me if I would come in and help in the store as they got a big delivery of VB and he was doing bookwork that he had to do and they needed help and I said yes, I would come in. [Tr 20.09.04 p12]

8 In her evidence, she has described it as a “special” and “an unusual” delivery.

9 She says that there were only two other persons working at the shop on that day (Steve Wiblen and Christian Mauricio Berrios). Both were at the store when she arrived. She says that she believes she worked for about three or three and a half hours (she was not exactly sure).

10 I shall firstly refer to what seems to have been the procedure in relation to delivery of liquor to the store. Pallets were unloaded at a loading dock. It was some distance from the store. They were then moved from the dock to the store where cases were unloaded from the pallets. The store had, inter alia, a cool room and a display area.

11 I shall now turn to the evidence given in chief by the plaintiff concerning the work done by her on that day.

12 The plaintiff said that Mr Wiblen was ordering stock and doing bookwork. Mr Berrios was basically serving customers behind the register. She noticed “seven pallets or six and a half at that stage”. She started unloading the stock.

13 She said that the first task was to move old stock. There were about 80 cases of old stock. She believed that she moved “around 60 cases, could be less, I am not exactly sure, I didn’t count them” into the cool room. This was done by lifting the cases onto a two wheel trolley. She would put six cases of beer onto the trolley and wheel it into the cool room, take the beer off the trolley and put the cases in a stack in the cool room. The remaining old stock that wouldn’t fit into the cool room stayed where it was. She cleared a space.

14 She then started unloading the pallets of new stock. She believed that she unloaded three pallets. There were 70 cases of Victoria Bitter on each pallet (“VB stubbies, 375ml”). She placed one case at a time on the trolley. The trolley was then wheeled to a display and unloaded. The beer was then put on display. After shifting the three pallets of beer, the remaining old stock was put on top of it.

15 She gave the following evidence:-

Q. As you were doing this did you notice, as you were shifting the cases of beer did you notice something about yourself?
A. No I just was getting tired.
Q. Whereabouts you were getting tired?
A. I just felt sort of normal in my back, tired from all the repetitive lifting.
Q. You were getting tired in your back, what do you mean?
A. Just feeling sore, I had had enough, I’m not doing any more. [Tr 20.09.04 p14]

16 It was her belief that she moved “more to the tune of 200, 210 cases”. She did not agree with the suggestion that it may have been “only 150, 160” cases.

17 It is her evidence that she moved only cases of Victoria Bitter (each carton containing 24 x 375ml stubbies).

18 She says that Mr Wiblen did not help her move the cartons. She says that Mr Berrios may have moved some of them and that she may have served some customers. She says that on 3 August 1998 she did not know that she had hurt her back. She says that she told Mr Wiblen that she wanted to go home.

19 That evening, the plaintiff participated in a weekly competition of ten pin bowling. She played three games and used an 11 pound bowling ball. She said that she felt tired after the competition.

20 She says that the next morning, whilst dressing herself, she bent down and her back seized up and she experienced excruciating pain. A general practitioner was called.

21 Following this incident (and about an hour before she was due to start work), the plaintiff telephoned Mr Wiblen. She gave the following evidence:-

Q. He said, "The next day she rang an hour before she was due to start" and you told him you had hurt your back while lifting the beer; did that happen?
A. I told him I hurt my back and I didn't know how I had hurt it - I didn't say I didn't know how I did it, I told him "I hurt my back".
Q. He says you told him you hurt your back whilst lifting the beer. He said had you been tenpin bowling the night before. You said you had, but you had hurt your back while lifting the beer; did anything like that happen?
A. Not when I rang him that morning because I was still waiting for the doctor to come. [Tr 20.09.04 p24]

22 She saw the doctor after having this conversation. She was given medication.

23 Thereafter, three documents came into being. There was an incident report (Exhibit B), an employers’ report of injury (Exhibit H) and a compensation claim (Exhibit G).

24 In Exhibit B, the duties being performed at the time of the accident are said to be “unloading three pallets of beer to other parts of the store”. The description given of the accident is “lifting 210 cases of beer when unloading the pallets and therefore straining the muscles of my lower back”. The plaintiff’s recommendations to prevent recurrence were, “to not unload as many cases of beer”. At the foot of the document, Mr Wiblen has added:-

It was more like 150 cases of beer and she didn’t do them on her own.

It is dated 14 August 1998.

25 Exhibit H is signed by an employee of the defendant (Nick Giokaris). The occurrence of injury is related to “Unloading pallets of beer”. It contains an expression of his opinion as follows:-

Valid claim – independent medical.

It is dated 20 August 1998.

26 In Exhibit G, the plaintiff has inserted, inter alia:-

On the 3rd of August 1998, I unloaded 3 full palletts [sic] of beer from one part of the shop to another.

Mr Wiblen inserted the following:-

I was in the store on that day but no incident or accident was reported to me. In fact Michele went 10 pin bowling after her shift.

It is dated 14 August 1998.

27 The plaintiff was paid compensation for the period from 4 August 1998 until 24 August 1999 (Exhibit J). No taxation was deducted in respect of the weekly payments. The plaintiff relies on what are said to be admissions that flow from the making of such payments.

28 In her evidence in chief, the plaintiff said she was in good health prior to 3 August 1998. She gave evidence of a knee injury in 1984 when she was pushed downstairs at school and of being treated for asthma when she was in the RAAF. There was evidence that the asthma treatment led to weight gain. Otherwise, it was said that she had no continuing problems from those matters.

29 I shall now mention certain of the evidence given during the plaintiff’s cross-examination.

30 She was questioned concerning her seeing doctors in relation to problems with her left knee in 1999. There is evidence that she saw her general practitioner (Dr Trefely) concerning such a matter, that he referred her to a specialist (Dr Kohan), that she saw him twice and X-rays were taken. The defendant has tendered two reports from Dr Kohan (both are dated 12 August 1998) (Exhibit 1).

31 The plaintiff had no recollection of Dr Kohan. The suggestion that she had problems with her left knee in 1999 seemed to come as a surprise. She did not recall history recorded by the specialist.

32 The first of the two reports contain the following:-

Thank you for asking me to see this 32 year old salesperson, who presents with left knee pain. Symptoms have been present for some weeks, on this occasion, but she has had pain intermittently since the age of 15 or 16. At that stage, she had an arthroscopic lateral release, which helped, and she has been functioning satisfactorily.
The situation is complicated further by lower back pain. The knee pain has tended to aggravate her back symptoms. She feels that limping tends to cause more back discomfort.
Her knee pain is mainly in the mornings. She has pain on walking and kneeling. On occasions, the left knee, and to a lesser extent the left ankle feel weak, as though they would give way on her.
She is not able to run. She can climb steps only with difficulty. She has no pain at night.
… … …
I saw X-rays of the left knee, 12/7/99, there was evidence of medial compartment narrowing and evidence of early degenerative changes of the patello-femoral joint, with medial patella facet osteoarthritis and the development of a medial patella spur.
… … …
OPINION : Her signs and symptoms are consistent with patello-femoral osteoarthritis.

The second of the two reports contained the following:-

The presence of a medial patella spur is unusual and may imply the development of pathology in the trochlear groove, which is not obvious on plain X-ray.
I have advised an arthroscopic examination of her.
I have discussed the pros and cons of arthroscopic surgery, the risks and benefits. I have provided her with an information brochure dealing with arthroscopic surgery and I enclose a copy for your records.

33 In the circumstances, I regarded the plaintiff’s lack of recollection of Dr Kohan and of suffering a left knee problem in 1999 as being somewhat extraordinary.

34 She gave the following evidence concerning manual handling:-

Q. And what do you believe is correct manual handling?
A. What do you mean by that, as in the way you lift?
Q. Yes?
A. Well, you should always bend at the knees and not bend at the waist and lean over and pick up things, and not to lift too much. Like don't lift two cases of beer at a time. Lift one case of beer at a time.
Q. So you were taught or told to, when you were lifting anything of any reasonable weight, to bend at the knees; is that correct?
A. That's correct.
Q. To keep your back straight?
A. That's correct.
Q. Not to lean forward in lifting?
A. That's correct.
Q. And to keep whatever you are lifting close to your body?
A. That's correct.
Q. And when moving, when lifting it up, use your legs, keep your back straight, keep it close to your body?
A. That's correct.
Q. And not to lean forward with it, is that correct?
A. That's correct.
Q. Did you follow that advice?
A. Yes, I did.
Q. And did you follow that advice on 3 August?
A. Yes, I did.
Q. Is that the manner in which you lifted on 3 August?
A. That's correct.
Q. And is that the manner in which you lifted every day?
A. Yes.
Q. So it would be, of course, totally false to suggest that when you were performing lifting and lowering, you did so by reaching out with extended arms?
A. When the beers were on top of the pallet you have - I had to reach out with extended arms to pull the beer closer to the edge of the pallet and then I would lift it. I would leave - I wouldn't lift it off there. You had to get there because the beers are stuck down by a type of glue and you have to like try and get it to like move and then I pull it to the edge of the pallet and then I would lift it.
Q. But just pause, please. You're suggesting that when the beers were on the top of the pallet you have to reach out to slide them and wiggle them towards the edge, is that correct?
A. That's correct.
Q. But you weren't lifting them during that process, were you?
A. No, it was just--.
Q. --Twisting?
A. --Twisting them I had stretched out arms to do that.
Q. You would slide them on what was underneath, is that correct?
A. That's correct.
Q. So this work you are performing with your arms out extended does not involve lifting them?
A. No.
Q. Or lowering them?
A. No.
Q. It just means jiggling them sideways like that, get it free?
A. Yes.
Q. Then they slide. Once you get them moving they will slide okay; is that the situation?
A. Yes, that's correct.
Q. Then you go back into lifting them out, keeping your back straight, keeping them close to you all the time and again, when you are putting them down, you bend your knees to put them down, keep your back straight?
A. That's correct.
Q. So it would be quite incorrect to say that you were lifting and lowering by reaching out with extended arms?
A. I wouldn't - I couldn't do that.
Q. And you wouldn't do that?
A. No.
Q. And it would be quite improper to suggest that you were doing that, wouldn't it?
A. That's correct.
Q. Did Steve Wiblen ever speak to you about your lifting technique?
A. No, he never did.
Q. Is that because even if he saw you, there would be no need to?
A. That's correct.
Q. Because you always employed the correct lifting technique?
A. That's correct. [Transcript 21.09.04, pp 54-56]

35 The plaintiff said that whilst working on 3 August 1998, she experienced what she described as normal pain. This was a pain that she had experienced before during her employment with the defendant on days in which she had done deliveries. It was her evidence that she didn’t get the pain when she did not do deliveries. She did deliveries on most days.

36 The effect of further evidence given in cross-examination was that in the bowling games the plaintiff would have bowled somewhere between at least 36 balls and about 60 balls. The balls were said to have a weight in the order of 10-10.5 pounds. She said that she experienced no pain after the bowling games and that she did not have pain until she bent over the next day to put on her socks. She described the pain as one she had never had before. Her condition got better until 16 September 1998.

37 She made an unsuccessful attempt to return to work on 7 September 1998. She made a further unsuccessful attempt on 14 September 1998. On both occasions, she said that she was unable to continue work because of lower back pain.

38 On 16 September 1998, the plaintiff suffered a further incident (when reaching down to put her slacks on). Whilst getting dressed, her back seized up once again (she experienced the same pain as on 4 August 1998). Again, a general practitioner attended her at her home. She was given further treatment. The pain got better over a period of time.

39 On 23 December 1998, she was certified as being fit to return to work on light duties. Gradually, the time that she could work was increased until she was working a full week on light duties (no lifting was involved).

40 She retired from her employment with the defendant. She obtained employment with the NSW Police. Between October 1999 and 1 February 2000, she was employed as a civilian communications officer. The employment came to an end when she failed to complete her probationary period satisfactorily. She attributes this to her low back pain.

41 The plaintiff says that she suffers low back pain 24 hours a day for seven days of the week. She does not like to take medication because she does not want to become addicted. She gave the following evidence:-

I don't like to take painkillers. I will take painkillers if it becomes excruciating. Normally what I try to do if the pain gets bad I will get a heat pack and I will lie down with a heat pack on my back. I will do my stretching exercises that I am supposed to do or I will go and just have a hot shower or something to try and relieve that pain before I rely on painkillers. I don't want to become addicted. [Tr 20.09.04 p28]

42 She also gave evidence that she has been taking Panadeine Forte since 3 August 1998. The transcript records:-

Q. Are you still taking them?
A. I am – just not as much as what I was. [Tr 17.06.05 p206]

43 Exhibit Q (which was tendered by the plaintiff) is a Panadeine Forte box and receipt. It was tendered in support of a future out of pocket expenses claim (at the rate of $10 per month).

44 The plaintiff’s case is that she is now unemployable. She says that her injury makes sexual relations with her husband painful and they have decided not to have children because of the risk of further injury to herself. She says that prior to the injury she had engaged in various sporting and recreational activities which she is now not able to pursue. She says that since the injury she has required domestic assistance and can still no longer perform tasks such as washing up, vacuuming and other cleaning. She says that since 3 August 1998, she has had assistance both from her husband and other family members.

45 In support of her claim, the plaintiff has called a number of lay witnesses (her husband, her mother, one of her sisters and Kerry Cross, a friend). These witnesses fulfilled, inter alia, the role of what are usually described as before and after witnesses.

46 The plaintiff has sought to rely on expert evidence on the question of liability. Initially, she sought to tender parts of a report from Mr Spencer. He was presented as a work safety expert. His occupation is that of a safety consultant.

47 The defendant objected to the tender of the report. The objection was based on a number of grounds (including a challenge to Mr Spencer’s qualifications to give the expert evidence that had been sought to be adduced from him).

48 Mr Spencer gave evidence as to his qualifications. Argument then took place as to the admissibility of the tender. Apart from the question of qualifications, admissibility was opposed on the basis of false assumptions. The assumptions were inconsistent with the evidence that had earlier been given by the plaintiff. It was a very lengthy report and this problem went to the probative value of most, if not all, of the tendered material.

49 During the course of argument, a tentative view was expressed as to the admissibility of the material. This saw the plaintiff abandoning the report. The plaintiff made an adjournment application which was granted and directions as to the further conduct of the proceedings were given.

50 On 22 September 2004, the part-heard proceedings were stood over to a date to be fixed. The hearing resumed on 14 June 2005. It then continued until 17 June 2005.

51 When the hearing resumed, an affidavit sworn by the plaintiff was tendered. It may be seen as seeking to develop what had been earlier orally said by her. It was accompanied by a tender of photographs which had formed part of the Spencer report. She was briefly further cross-examined thereafter. Largely, she affirmed the earlier oral evidence.

52 The plaintiff then sought to rely on a different expert (Dr Emerson). The tender of this report also met objection. The basis for the objection was similar to that which confronted the report from Mr Spencer.

53 Like its predecessor, this report also had content that was substantially not relevant. Further, it contained opinion on matters that fell outside the expert’s area of expertise.

54 The report was founded on a factual basis that was largely in conflict with the evidence that had been earlier given by the plaintiff and the case that she was prosecuting in these proceedings. It seems that Dr Emerson had not been given a copy of the transcript of her evidence for the purposes of preparing his report. The tender of the report was rejected. This was not only because of its substantial irrelevance, but also because it was an appropriate case for the exercise of the discretion conferred by s135 of the Evidence Act 1995. It seemed to me, that whatever probative value it may have had was substantially outweighed by the danger that it might be, inter alia, unfairly prejudicial and cause, or result in, undue waste of time.

55 The plaintiff then sought to explore the possibility of eliciting oral evidence from Dr Emerson. Again, the proceedings were further stood over and listed for hearing on the following day.

56 When the hearing resumed, a further report was obtained from Dr Emerson. Because of its late service, a further adjournment was necessary to enable the defendant to, inter alia, read it and obtain further instructions.

57 The further report could be described as a discordant amalgamation. It contained material that had formed part of the original report. It contained references to instructions and a site inspection. It contained references to the transcript. It contained references to the affidavit that had been sworn by the plaintiff.

58 Largely, the report suffered from problems similar to that of its predecessor. As it seemed to be impracticable to undertake the task of isolating any parts thereof that may have been admissible, the course was taken of allowing Dr Emerson to give oral evidence on matters falling within his expertise and which were covered by what had been said in his report.

59 His evidence remained founded on certain assumptions (including an assumption that the plaintiff was engaged in the lifting of 210 cases of beer during a period of about three and a half hours). He had weighed a sample case and found it to be 14 kg.

60 He gave, inter alia, to the following:-

Q. I understand that - was it a safe system or not?
A. No the system was unsafe in requiring such an excessive load to be lifted in the course of a three and a half hour timeframe.
Q. I want you to assume that instead of 210 cases and 80 cases of old stock the plaintiff lifted only 135 cases. What do you say if that was what she was required to do over three and a half hours?
A. I still say that is vastly excessive lifting and still hazardous. [Tr 16.06.05 p150]

61 Dr Emerson regarded pivoting from the hips and twisting from a loaded spine as being dangerous.

62 I shall mention certain of the other assumptions upon which his evidence was founded. They were elicited inter alia during cross-examination. He assumed that there was continuity in the lifting process. He assumed that other employees had not been involved in the moving process. He assumed that there had been some lifting with arms outstretched. He assumed that the plaintiff had suffered a “frank injury” on 3 August 1998. None of these assumptions were made out by the plaintiff.

63 Dr Emerson regarded the training provided by Liquorland as being inadequate because it was not being reinforced. He seemed to have difficulty in accepting the evidence that had been given by the plaintiff.

64 The plaintiff has relied on a large bundle of reports prepared by other experts. Doctors Mahony and Trefely and Professor Kennett gave oral evidence.

65 Dr Mahony has prepared a number of reports (the latest of which is dated 3 June 2005).

66 In his latest report, he expressed the following opinion:-

Mrs Box has developed symptoms referable to lumbar disc lesions at the L3/4 and L4/5 levels and lumbosacral levels with nerve root irrigation affecting the lower limbs particularly the bilateral L5 nerve root and the “tingling” in the soles of both feet could suggest added bilateral S1 nerve root irrigation.
It is consistent that the lifting incidents she described on the 3rd August 1998 has produced such lesions.

67 I should mention that the plaintiff had given evidence that she found it very difficult to walk uphill. She said:-

If it’s any sort of steepness, I walk up a hill backwards. [Tr 20.09.04 p30]

68 During his cross-examination, questions were put to Dr Mahony concerning such a practice. He did not think that it would alleviate the plaintiff’s symptoms. It was not a practice that he would recommend. Indeed, he regarded it as being dangerous.

69 Professor Kennett gave the impression of an expert who had adopted the role of advocate for his client. He presented as an aggressive and difficult witness.

70 The defendant called the two other persons working at the shop on that day (Messrs Wiblen and Berrios). It also tendered certain medical reports. The reports threw up views that conflicted with those of the doctors relied on by the plaintiff. None of the doctors were required for cross-examination.

71 The defendant did not tender any documentation concerning the activities of 3 August 1998. It has not been suggested that the documentation is now unavailable.

72 Although it had qualified an expert (an engineer, Mr Cowling), the defendant did not tender any report in answer to the evidence given by Dr Emerson.

73 In these circumstances, the plaintiff asked that a Jones v Dunkel inference be drawn. This submission was the subject of miniscule argument.

74 In the light of the material that is before me and the minimal argument, I am not satisfied that any such inference should be drawn in this case.

75 The question of the availability of Mr Cowling was never explored. It was conceded that the expert has been qualified to respond to the Spencer report. Save as to what may be gleaned from this concession, the content of his report remains in the realm of the unknown. The circumstances leading up to the adducing of the evidence ultimately given by Dr Emerson may have placed the defendant in a position where an adjournment would be required if it made the tactical decision of giving evidence in reply. In the circumstances, it may have simply decided that the evidence did not warrant the taking of that course.

76 This is a case in which the credibility of witnesses and the reliability of evidence is a matter of some importance. I closely observed the witnesses during the giving of evidence. In addressing the questions of credibility and reliability, I have had regard both to demeanour and evidence.

77 The concentration of the submissions on liability was directed to the conflicting evidence as to what took place on 3 August 1998. This was seen as being crucial on this issue.

78 The plaintiff was not an impressive witness. To a substantial extent, I do not accept her evidence (including her evidence as to what she says happened on 3 August 1998). Her version as to the events of that day has an air of unreality about it.

79 I regard her evidence as to what she said happened on 3 August 1998 as being implausible. It is substantially in conflict with the two other versions as to what happened on that day. It is not consistent with other evidence.

80 This was not the only area of her evidence that I found to be implausible. There were other areas (including the evidence she gave concerning a left knee problem and seeing Dr Kohan).

81 Although both continued in employment with Liquorland for some time subsequent to 3 August 1998, neither Messrs Wiblen nor Berrios remain as employees.

82 Whilst both Messrs Wiblen and Berrios have suffered a loss of recollection during the lengthy period that has elapsed since that day, what remains in their memories sees both present versions that significantly differ from that offered by the plaintiff.

83 The version given by Mr Berrios sees the plaintiff mainly serving at the counter (she was serving at the counter when he arrived). He said that he unloaded three quarters of the beer from the three pallets that had been brought from the dock to the store. He did not know who had unloaded the balance. He did not see the plaintiff unload any pallets. He said that he always did the beer.

84 Mr Wiblen said that it was the plaintiff’s day off. He has no recollection of contacting her to come into work. There was a beer delivery that day but she was not brought in to deal with an abnormal or special delivery of beer. It may be that she was called in because of the absence of another employee who had been rostered for work on that day.

85 Mr Wiblen gave this evidence:-

Q. Did you give her instructions on that day?
A. Yes.
Q. As to what to do?
A. Yes.
Q. And what were her instructions to begin with?
A. As in when the beer came in or --
Q. When she arrived?
A. I can't remember when she arrived. When the beer was delivered I wanted Michele to serve at the counter and Chris to clear the pallets as I was pulling them through.
Q. Did you see her serve the customers?
A. Yes.
Q. And did you see Chris do something with the beer?
A. Yes.
Q. What did he do?
A. As I was pulling them through the dock he was stacking them from the pallets into where they had to go. [Tr 16.6.05 p184]

86 His version was that his instructions were for her to work at the counter and for Mr Berrios to unload the pallets that he had brought to the store from the loading dock. On at least three occasions (when he was “bringing the pallets through”) he observed that she was at the pallets and she was telling him, “look how I’m lifting correctly, together with a demonstration of correct lifting technique.

87 He gave evidence that, “I was getting angrier” and that on each of these occasions, she was sent back to the counter and Berrios was called back to the beer.

88 He also gave this evidence:-

Q And what did you then do?
A. I'd make sure she was back at the counter, Chris was at the beer and I would go and pull another pallet through. [Tr 16.6.05 p189]
… … …
Q. And that would have been three, that would have been 210 cases of beer?
A. Not necessarily.
Q. But could have been if there were 70 to a pallet?
A. Could have been but it would be very rare that you order three straight pallets of beer. [Tr 16.06.05 p192]

89 He was unable to say how much beer was unloaded by the plaintiff. He was cross-examined concerning what appeared in Exhibits B, G and H.

90 Largely, I accept the evidence given by Messrs Wiblen and Berrios. Both of them presented as witnesses who, in difficult circumstances, were doing their best to give truthful and reliable evidence.

91 Whilst there may have been some inconsistency in their respective versions (a matter which would not be unexpected), their evidence had the characteristics of plausibility. There was a general consistency in their recollections. Their recollections accorded with what appears in other material.

92 Largely, I accept their evidence. I prefer what they say as to what happened in and about 3 August 1998 to the version offered by the plaintiff.

93 The quantum of beer moved by the plaintiff on 3 August 1998 is at best a matter of conjecture. I am not satisfied that she moved any significant quantity. At least part of what she may have done was moved contrary to instructions given to her.

94 The plaintiff bears the onus of proving her case on the balance of probabilities. In my view, she has failed to discharge that onus.

95 I should make it clear that in reaching that conclusion, I have taken into account, inter alia, the admissions that arise from the making of compensation payments and other matters relied on by the plaintiff to support her oral evidence.

96 Whilst what has been said suffices to dispose of the claim, it may be of assistance to the parties if I express my views on other matters.

97 Dr Emerson gave evidence which I did not find to be persuasive. He gave me the impression of being eager to play the role of advocate. He exhibited a tendency to giving non-responsive answers during cross-examination. His evidence gave me little assistance.

98 It was founded on evidence that was not accepted. It was founded on assumptions that were not made out. It was infected by the taking into account of extraneous matters rather than concentrating on the evidence itself.

99 As an expert, he was placed in an advantageous situation. The evidence upon which he was being asked to express his opinion, had already been given. Rather than make use of that state of affairs, he seemed to be determined to take into account other matters (such as either his instructions and/or experience) and prefer it to the actual evidence given by the plaintiff in reaching certain of his views.

100 In my view, the plaintiff has failed to demonstrate that the defendant had an unsafe system of work. Further, I consider that she has failed to establish that her working conditions caused the suffering of the alleged injury. In my view, the evidence points to the conclusion that whatever problems she does have, they were otherwise caused.

101 Whilst the focus of the submissions made by counsel were directed to the question of liability, some little time was occupied by the question of quantum.

102 Senior counsel for the plaintiff has provided his assessment of the damages that should be awarded. It comprises assessments for past and future out of pocket expenses, past and future gratuitous and paid care, past loss of earning capacity and interest thereon, future loss of earning capacity, loss of superannuation benefits, income tax paid on weekly payments of compensation and non-economic loss. Counsel for the defendant has not provided the Court with any assessment.

103 However, the latter briefly raised the question of the thresholds that govern the awarding of damages under the relevant regime. Largely, counsel for the plaintiff have not addressed the Court on these matters.

104 In the circumstances, it does not seem to me that the Court is in a position to provide any assessment of its own.

105 The orders of the Court will be as follows:-

1. Judgment for the defendant;

2. The plaintiff is to pay the defendant’s costs of the proceedings; and

3. The exhibits may be returned.

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