Norsgaard v Aldi Stores (A Limited Partnership)
[2022] QDC 260
•22 November 2022
DISTRICT COURT OF QUEENSLAND
CITATION:
Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260
PARTIES:
LUCY VICTORIA NORSGAARD
(plaintiff)
v
ALDI STORES (A LIMITED PARTNERSHIP)
(ABN 90 196 565 019)
(defendant)
FILE NO:
1872/21
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
22 November 2022
DELIVERED AT:
Brisbane
HEARING DATE:
13 – 15 July and 5 August 2022
JUDGE:
Jarro DCJ
ORDER:
Judgment for the plaintiff in the amount of $157,767.71.
CATCHWORDS:
TORTS – NEGLIGENCE – BREACH OF DUTY – where the plaintiff was employed by the defendant as a store person – where the plaintiff sustained an injury to the lumbar spine – where it is the plaintiff’s case that the injury was a consequence of the defendant failing to adequately train the plaintiff in manual handling techniques, an activity which the plaintiff says carried with it a clear risk of injury – whether adequate practical & module manual handling training was conducted.
DUTY OF CARE – employer’s liability – unnecessary risk of foreseeable injury – whether employer took reasonable steps to provide a safe place of work and a safe system of work – Workers' Compensation and Rehabilitation Act 2003 (WCRA) ss. 305B & 305C – whether duty of care has been breached under s. 305B of the WCRA.
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES
LEGISLATION:
Workers’ Compensation and Rehabilitation Act 2003 Qld ss. 305, 305B & 305C
Workers’ Compensation and Rehabilitation Regulation 2014 Qld Sch 8
CASES:
COUNSEL: R J Lynch and N I Congram for the plaintiff
S McNeil for the defendant
SOLICITORS: Kartelo Law for the plaintiff
BT Lawyers for the defendant
The plaintiff in this matter seeks recovery of damages for injuries said to have been sustained in the course of her employment, as a store person, with the defendant on 28 June 2019. Both liability and quantum are in dispute. For the reasons that follow, it is my view that liability has been proven and the plaintiff’s damages are assessed in the amount of $157,767.71.
Background
In around May 2018, the plaintiff commenced part-time employment as a store person at the defendant’s store in the suburb of Brassall. As part of her duties, she was required to undertake the unloading and stacking of stock from what is known as an “ambient pallet”. That task, she says, was required to be completed in no more than 20 minutes.
It is largely not in contest what occurred on the day the plaintiff injured herself. At approximately 7:55 pm on 28 June 2019, in aisle 6 of the Aldi Brassall store, the plaintiff was required to undertake the unloading and stacking of stock from an ambient pallet. She lifted three cardboard trays from the pallet. Each cardboard tray had 12 tins of canned tomatoes which weighed approximately five kilograms, such that the plaintiff was lifting approximately 15 kilograms in total. As she performed the lift, she was bent over at the waist and her trunk was at an approximate 30-degree angle from vertical. She then turned to her left and took two steps towards the shelving whilst carrying the load. The carry was performed with the load held with outstretched arms below her waist. She then began to take a third step towards the shelving when she lost control of the lift. The cans of tomato then fell onto the floor.[1] As a result of being involved in the lift and carry, the plaintiff suffered a musculo‑ligamentous injury to her lumbar spine.
[1]See pleadings and CCTV footage of the incident.
The plaintiff alleges that the defendant breached its duty of care by failing to adequately train her in manual handling techniques, an activity which she says carried with it a clear risk of injury. It is asserted on her behalf that there was never any limit imposed on what weight or number of items the plaintiff could safely lift at one time. It is also asserted that safe manual handling practices were not enforced by the management at Aldi Brassall. Rather, the emphasis within the store was on speed and completion of the task, as opposed to safety. The case advanced on behalf of the plaintiff was that she felt compelled to increase her speed of completion and so she lifted more product to become more efficient.
The defendant admits that the plaintiff was required to undertake the unloading and stacking of stock from an ambient pallet as part of her work duties, but denies the assertion that the plaintiff was expected or required to complete the task in no more than 20 minutes, which was much the focus of the plaintiff’s claim. The defendant says that there was no directive or instruction given to the plaintiff that this task was to be completed within that timeframe. The defendant denies that lifting three cardboard trays of canned tomatoes was part of the plaintiff’s usual or accepted work duties. Its case is that:
(a)the plaintiff was not instructed, required, committed or directed to lift three cartons of canned tomatoes at a time;
(b)the plaintiff had been trained in safe manual handling, which included an instruction that items of more than 10 kilograms should be lifted by way of a team lift;
(c)the plaintiff elected to lift three cartons of canned tomatoes at a time and in circumstances where there was no requirement for her to do so, she had not been trained to do so and there was no instruction or directive upon her to do so; and,
(d)the plaintiff lifted three cartons of canned tomatoes in direct contravention of the theoretical and practical training that was provided to her by the defendant.
The evidence led at trial established that the plaintiff commenced at Aldi Brassall on 21 May 2018. From her first day, the plaintiff underwent the defendant’s induction program that consisted of five training modules which was designed to be done in the first five days. The plaintiff completed the modules in two and a half days. The store manager, Mr Hutchinson, showed the plaintiff around the store, the warehouse, the office and the break room. He had an iPad with him to sign off and confirm that the plaintiff had been shown and completed these things.
Manual Handling Training
A major focus of the evidence led at trial revolved around the extent to which employees were trained in manual handling techniques. A number of witnesses gave evidence about this issue being the plaintiff, Mr Ashleigh Hutchinson, Mr Joel Gannon, Ms Ellen Barton, Ms Karen Mills, Ms Lucinda Dixon and Ms Taylah Watson.[2]
[2]Ms Watson was called on behalf of the plaintiff. The other remaining witnesses were called by the defendant.
The plaintiff recalled watching a video during her induction, and at one point, Mr Hutchinson asked her if she knew how to lift. She responded, “Yes”. The plaintiff gave evidence that Mr Hutchinson did not perform a demonstration of lifting and did not require the plaintiff to perform one either. The plaintiff did not recall receiving any further training with respect to manual handling during her first week at work.
The evidence of Mr Hutchinson’s practical manual handling training provided to the plaintiff is, to some extent, in conflict with that given by the plaintiff. My impression of Mr Hutchinson’s evidence was that Mr Hutchinson spoke more in general terms about what he would have done rather than what he actually did at the relevant time. He is hardly to blame for that because he only had to recall the training he provided to the plaintiff for the first time, in the week prior to trial.
Relevantly Mr Hutchinson said that he gave examples of “manual handling, tills and preboarding” in respect of the five modules which formed part of the theoretical component conducted on the iPad. There were videos in the module that new staff members, including the plaintiff, were required to watch. The videos were followed by a quiz. Once the new staff member completed viewing the video, Mr Hutchinson said that he would then explain to them that he was going to show them how to carry out the manual handling, including bending properly and lifting using the knees. He would then have the new staff member demonstrate the lifting technique to him. He said he would then “sign them off on that module” if their demonstration was sufficient. In respect to signing them off, it was Mr Hutchinson’s evidence that after carrying out the demonstration himself, and having the new staff member perform the task, he would then explain to the person what they had done, the reason they have done it, following which he would put a password into the iPad in order to confirm they had been shown the manual handling technique.
At the commencement of the plaintiff’s first shift, Mr Hutchinson recalled showing the plaintiff stretching posters which were located in the staff room, as well as in the office where there were more stretching posters (including a stretching sign-off sheet). It is unclear to me whether the plaintiff was required to provide her signature for the sign-off sheet. Mr Hutchinson said that he provided the plaintiff with training in relation to the stretching (as identified in the stretching posters), and during the training on the iPad showed the plaintiff the stretches again before she commenced the manual handling training.
In terms of the manual handling training, it was Mr Hutchinson’s evidence that the plaintiff located him in the store and advised him that she had finished the manual handling module on the iPad, at which point he would check to see where she was up to in respect of the quiz and he would view the iPad to see what process had to be followed. He said that he demonstrated picking up a box using the correct technique. That involved what he described as sizing up the load, positioning his feet correctly, bending down using his knees by squatting, picking up the box in a nice comfortable fashion, holding the box close to his body, standing and turning using his feet, not twisting with his waist, and walking to another part of the warehouse and placing it down gently bending his knees, following which he would pick it back up and then walk it back to where it was originally found and place it down by bending his knees and lowering the product back onto the pallet. After this demonstration, Mr Hutchinson required the plaintiff to carry out the same actions. He observed her during this process. He relevantly observed the plaintiff to look at the box, size it up, position her feet close to the box, bend down with her knees by squatting, picking up the box comfortably, holding it on to her body, standing up and turning using her feet, walking across the warehouse and placing it down on another pallet whilst bending her knees. This process he estimated took about 10 to 15 minutes.
It was his evidence that he ran a number of loads with the plaintiff when she commenced at the store. Relevantly, the plaintiff and Mr Hutchinson would be working off the same pallet and if he observed anything incorrect with the plaintiff’s lifting technique, he said he “would pull her up immediately and explain to her how she had moved or picked up a box and that it was incorrect”, following which he would show her the correct technique, reiterate the reason why they did not do it that way, get her to do it again and once he was satisfied with what she had done, they would continue working.
Mr Hutchinson said that after the plaintiff had completed her training and became a member of the team, he observed the plaintiff to perform an incorrect lift, at which point he immediately went over to her, explained that she was lifting incorrectly and demonstrated to her the correct way to lift. After that, he had her explain back to him what he had just shown her and then had her demonstrate the process again. Once he was satisfied, he would continue working on his own pallet. Mr Hutchinson could not initially recall the period of the plaintiff’s employment when this occurred but recalled there were a “few other times further down the track”, following which he approached her in the same manner. In cross-examination, he recalled this may have been a few weeks prior to the incident.
Mr Gannon, who is a store manager for another one of the defendant’s stores, gave evidence with respect to the training that was afforded to him by Mr Hutchinson when he first started at Aldi in 2017 which included the modules on the iPad, and manual handling training, the buddy system, the timeframe to unload an ambient pallet and the expectation on staff in terms of that timeframe. I will briefly refer to the issue of manual handling training and refer to the remaining matters later in these reasons. Mr Gannon said that he was required to demonstrate to Mr Hutchinson that he understood the training module after having completed the iPad training in four days. He was required to demonstrate to Mr Hutchinson that he could display the manual handling technique to him. Mr Gannon also gave evidence that after completing the iPad training, he worked on regular shifts and for the first two or three weeks, he was paired with someone (known as the ‘buddy’ system). Mr Gannon said that following the completion of the iPad training module in the first week and completing working with a buddy, there was ongoing training being quarterly refresher courses required to be carried out by staff. When asked whether the training specified a maximum weight an employee could lift or whether there were rules or expectations regarding how many trays a person should lift at one time, Mr Gannon’s evidence was “not that I can remember”.[3]
[3]T3-35, ll 1-7.
Ms Barton worked for Aldi between 2016 and 2021, including at the Brassall store between June 2018 and January 2019. She worked with the plaintiff from time to time. She became aware of the training that was being done for new staff as it was part of her training to be exposed to how the training was done. She gave evidence in respect to the training required for new staff members when she commenced in June 2018 at the Brassall store, being a five-day program on the iPad called “new starter introduction”. This involved the new staff member watching the videos and completing modules with questions and after going through the questions they would have to go and see the manager on duty and go through a bunch of steps that would show them how to do things. She recalled that one of these aspects was manual handling which she believed was carried out on day one of the program. She had some knowledge of the manual handling module in terms of the training and knew that it had included how to use a manual pallet jack and an electronic pallet jack, as well as lifting techniques. She recalled new staff members from June 2018 undergoing manual handling training with the manager but could not specifically recall who or which staff members they were. She recalled watching the new staff with Mr Hutchinson and hearing things said to them like “this is how, like, we would lift it”.
Ms Mills, an Aldi sales assistant, gave evidence that when she commenced working with Aldi in 2016 she underwent training, albeit at a different store which included having to undergo a medical assessment to get the job, and completing training via modules that they had to pass with the manager signing off. The modules were done on an iPad in the staff room and included having to carry out the theory by herself in the staff room, watching the video and answering numerous questions. Following the iPad training, she went onto more basic training including registers and customer service and it went on from there until she said, “it felt comfortable”. She also gave evidence that when she commenced the Brassall store in 2018, she observed new staff members undergoing training. She recalled that they usually had a buddy with them or that there was a deputy that went alongside them to see that they were doing the job correctly.
Shift manager Lucinda Dickson gave evidence that she has worked with Aldi Brassall from about 2017 and was first employed with the defendant in around 2016 at a different store as a store assistant. When she underwent training, she trained on the iPad including doing “a whole bunch of modules” in terms of how to do the job including running load, working tills, cleaning and “all that stuff like that”. In terms of a practical element to the training, it was Ms Dickson’s evidence that they had to do the iPad training and then “you’d go physically and do what the iPad basically entailed”.[4]
[4]T3-58.
The remaining evidence about the defendant’s manual handling training came from Ms Watson who was called by the plaintiff. Ms Watson commenced as a store assistant with the defendant in August 2018. Ms Watson gave evidence that during her time she completed some iPad training, including in respect of manual handling. She completed a series of modules which “weren’t all that memorable” to her. Following the module training she was given some kind of “shadowing/mentoring training, [where] we were meant to be viewed and signed off as competent”.[5] She gave evidence that Mr Hutchinson did not demonstrate any lifting techniques to her, but simply asked her, “Do you know how to correctly lift a box?”[6] Ms Watson also gave evidence of seeing another worker lifting multiple cartons of produce in the presence of a manager and being applauded for it. I treat Ms Watson’s evidence with some caution given she was and is a very good friend of the plaintiff.
[5]T1-45, ll 15-40.
[6]T2-46, l 14.
I note the first training module the plaintiff completed was the manual handling module. The completed module record shows a start time of 2.44 pm on 21 May 2018 and a completion time of 2.48 pm on 21 May 2018, being a time taken of four minutes and two seconds. It is accepted that the four minutes and two seconds is not a reflection of the entire time taken to conduct the manual handling training, however as the plaintiff submitted, the more important aspects of the manual handling induction module were that:
(a)at no point in the video on manual handling technique was there any instruction about the maximum weight an employee could safely lift or the maximum number of boxes or items an employee should carry;
(b)the lifting demonstration in the video was of an employee lifting a box in the warehouse in what was clearly a staged scenario. The demonstration bears limited resemblance to the types of product that the plaintiff was required to lift when running an ambient load as part of her job;
(c)the iPad module contained a quiz with three simple questions. The quiz could not be considered a true “test” of an inductee’s knowledge of manual training. There were only two possible answers to each question. The correct answer to each question was a photograph of the instructor who had demonstrated the correct lifting technique in the video shown only moments earlier, which clearly gave the correct answer.
I consider that the more crucial evidence about the manual handling training the plaintiff received came from the plaintiff herself and Mr Hutchinson because, ultimately, they were the two individuals who were directly involved in such training, whereas the other witnesses spoke of the training they received or were involved with.
To the extent of the inconsistencies with respect to the practical manual handling training provided to the plaintiff on the first day, I fall on the side of preferring the plaintiff’s evidence. That is because much of Mr Hutchinson’s evidence about the training provided was often prefaced in terms of what he would have done, not specifically what he provided to the plaintiff in particular. That is of course no criticism to Mr Hutchinson who in his evidence, as I have stated, indicated that he only first recalled the training he provided to the plaintiff the week prior to the commencement of this trial. Further one module the plaintiff was required to complete involved knife safety. Mr Hutchinson’s evidence was that it would take approximately 20 minutes to conduct the required practical training. He also agreed that it was an important module. However, the plaintiff’s training records demonstrated that Mr Hutchinson conducted that training within a maximum of eight minutes.[7] Mr Hutchinson was unable to provide an explanation for that. The plaintiff’s knife safety module contained, as the ‘trainer sign-off’, the plaintiff’s name, rather than that of the trainer’s name. It could be inferred that the training, certainly to that extent, lacked sufficient attention to detail. It was my impression that based on the evidence of Mr Hutchinson, there were aspects of Aldi’s manual handling procedures that, as a store manager, he did not enforce. Specifically, it was put to him that he did not slavishly enforce the stretching policy, his response was simply “no comment”. Again, no criticism can be placed upon Mr Hutchinson particularly given he was only required to first recall the training he provided to the plaintiff in the week prior to the commencement of the trial. However, I am not sufficiently confident upon acting on his evidence where it conflicts with that of the plaintiff. Concerningly too, despite what was pleaded on behalf of the defendant, Mr Hutchinson did not give evidence that he provided any instruction that the plaintiff was not to lift more than 10 kilograms.
[7]The plaintiff’s manual handling induction module record (Exhibit 3) shows a completed time of 2.48 pm on 21 May 2018 and her safety knife induction module record (Exhibit 33) shows a start time of 2.56 pm on 21 May 2018 (i.e. eight minutes after the manual handling induction module was completed). Mr Hutchinson’s evidence was that he conducted the practical training for each module before he logged on to the iPad, so the clear inference is that he conducted the practical training for the safety knife module within a maximum of eight minutes.
I am also prepared to act upon the evidence given by the plaintiff with respect to the practical manual handling training that was provided to her, irrespective of the evidence given by any of the other defendant witnesses because those witnesses spoke largely about the training which was afforded to them and not the plaintiff as such.
A number of witnesses, including the plaintiff, gave evidence about employee retraining. For instance, in January 2019, more than six months after the plaintiff commenced her employment, the plaintiff did some form of manual handling retraining (as opposed to the quarterly refresher course Mr Gannon and Ms Dixon gave evidence about, which consisted of an online module).[8] That module for present purposes however contained no instruction about the maximum weight an employee should safely lift or how many items an employee could carry safely. I am left with the view that there seemed to have been no practical element to the retraining.
[8]Exhibit 10.
Buddy System
After the plaintiff completed the remaining training modules in the first few days of her commencement (including the module on knife safety), Mr Hutchinson said that the plaintiff participated in a buddy training system whereby each new staff member was placed with a buddy so that “the buddy could run load with them” and help them learn where all the products were in the store, including having the buddy assist the new staff member when they were performing cash register duties, until they were comfortable to perform the tasks themselves. Similar evidence was given from all of the other witnesses, as well as Ms Arama Taurau.
In terms of the persons who buddied up with the plaintiff, Mr Hutchinson recalled that those included him, as well as other people in the store. He said he liked to rotate the role of the buddy with the new staff.
The plaintiff’s evidence about the buddy system was that sometime towards the end of her first week or the beginning of her second week, she followed Ms Taurau around when she “ran load”. On another occasion, she followed a Deputy Manager, Robbie, around once before she started work. The plaintiff otherwise denied that she was assigned a buddy. Whilst perhaps there was an informal arrangement in place for a short period of time where new staff members were observed with how they manually handled stock, I am not sufficiently confident a formal system was allocated, particularly in circumstances where there is no written record of that occurring and it is inconsistent with the evidence of the plaintiff, which I accept in this respect, that she would be in the best position to recall what allocation was given to her in her initial employment period with respect to this issue.
Time to Unpack Ambient Load
At the time of the incident, the plaintiff was running an ambient load. The plaintiff gave evidence that there was an expectation on the part of the defendant that the task would be completed in no more than 20 minutes. Her evidence was that she had a time limit of 20 minutes per full running load to distribute around the store. She was told about the time expectation in her job interview, as part of her training, and that it was mentioned by “pretty much everyone in the store”. Therefore another aspect of the plaintiff’s complaint against her former employer is that there was apparently an expectation on the part of the defendant that the task of unloading and stacking of stock from a pallet would be completed in no more than 20 minutes. This complaint is rejected by the defendant. The rejection is difficult to reconcile in light of not only Mr Hutchinson’s evidence, but also other evidence, which I shall now consider.
Mr Hutchinson gave evidence that with respect to a timeframe to unpack an ambient pallet, the average was approximately 19 minutes. He indicated that the average time would have been made known to the plaintiff during her initial training and would have been repeated throughout her employment. In respect of a staff member (including the plaintiff) not being able to meet the average time of 19 minutes, he said the load would simply be postponed until the next available opportunity the staff member had to actually complete the unloading of the stock from the pallet. If staff were known to take longer, Mr Hutchinson said that he would explain to them that their performance was not up to “standard” and they would need to work on how to get their performance up. In terms of the plaintiff specifically running load and meeting the 19 minute average, Mr Hutchinson’s evidence was that the plaintiff was inconsistent with “running load” and he had spoken to her about this. It was his evidence that he raised this with the plaintiff in the context of her managing to “get three double (ambient pallets) done, which was really good, but, the next time she should try to get four (ambient pallets) completed”.
This is consistent with the plaintiff’s evidence that she had several conversations with Mr Hutchinson during which Mr Hutchinson told her that she needed to work on her speed. One of those occasions occurred a few months before the injury when she was approached by Mr Hutchinson about a deputy manager position that was becoming available. He responded that if she was to get her speed up then she would be considered for that role. He said he would mentor her but, according to the plaintiff, that never eventuated.[9] Mr Hutchinson recalled that in the months leading up to the incident there was the prospect of the plaintiff being considered for a promotion to a duty manager role.
[9]T1-22.
As was highlighted on behalf of the plaintiff, which I accept, the plaintiff’s evidence that such an expectation existed at the defendant’s premises is consistent with the following:
(a)Mr Hutchinson’s evidence was that between May 2018 and June 2019 there was a timeframe in place for an average of 19 minutes for every double-D pallet. He confirmed that this expectation was communicated to the plaintiff as part of her initial training and that the expectation was repeated throughout her employment.[10] His evidence was also that if a staff member did not meet the 19 minute timeframe then he would explain to them that their performance was not up to standard and that they needed to work on how to get their performance up.[11]
(b)As to timing more generally, Mr Hutchinson’s evidence was that on occasions Aldi head office would ask him to time staff and that there were occasions when the plaintiff would have been the subject of timing when she was running loads.[12]
(c)Mr Gannon’s evidence was that the 19 minute guideline was communicated to him by Mr Hutchinson when he first started at Aldi Brassall in 2017.[13] He said that if staff were not meeting the timeframe there would be a discussion with them that they were not meeting the expectation and then a plan would be devised to help and assist to reach that.[14] He said that he would keep track of the time that elapsed when other staff members were running load.[15] He also agreed that the entire emphasis at the Aldi Brassall was on speed of completing the task of running the ambient load.[16]
(d)The Aldi Expectation Document “Running Ambient Mixes” effective 1 November 2020 states that a key expectation was a timeframe of “Average 19 minutes per standard DD”. Although that document postdates the incident, the evidence of Mr Gannon was that the same position applied in June 2019.[17]
(e)Ms Barton’s evidence was that the 19 minute timeframe was an “Aldi standard of execution” which meant that an employee should be able to unload one ambient pallet in 19 minutes.[18] However, she said that she personally did not enforce the standard.
(f)Ms Taurau’s evidence was that she recalled there being a timeframe in place between May 2018 and June 2019 of 19 minutes per ambient load, but she could not recall how she first became aware of that timeframe.[19] She said that if an employee did not complete the 19 minute timeframe then Mr Hutchinson would give them a bit of a warning after the shift was done and that Mr Gannon “would time us on his phone”.[20]
(g)Ms Mills’ evidence was the time expectation had previously been 20 minutes but in 2019 it was 19 minutes.[21] She recalled working the same shifts as the plaintiff and them saying to each other something to the effect of “Geez, it’s busy tonight. We need to get this done quite quickly.”[22]
(h)Ms Dickson’s evidence was that there was a 19 minute timeframe that Aldi had set for employees to try and achieve.[23]
[10]T2-97, l 45 – T2-98, l 5.
[11]T2-98, ll 4 – 29.
[12]T3-14, ll 30 – 40.
[13]T3-19, ll 20 – 35.
[14]T3-20, ll 4-10.
[15]T3-25, ll 30 – 38.
[16]T3-26, ll 28 – 30.
[17]T3-24, ll 2.0 – 40.
[18]T3-49, ll 1 – 15.
[19]T3-31, ll 25 – 33.
[20]T3-32, ll 10 – 15.
[21]T3-43, ll 13 – 19.
[22]T3-40.
[23]T3-60, ll 37 – 43.
Additionally, the plaintiff had been counselled about being too slow in unloading pallets. Her evidence was that she often fell short of meeting the time target and that “conversations about my speed started almost immediately upon being employed and continued all the way up to my injury”.[24] The defendant’s “30/60/90 DAY PROBATIONARY REVIEW – STORE ASSISTANT” document about the plaintiff is consistent with the plaintiff’s evidence that she was counselled about being slow in unloading pallets because she was graded as “needs improving” for the 30 and 60 day reviews and as “meeting the standard” for the 90 day review under the defendant’s criteria of “speed and efficiency”.[25]
[24]T1-22, ll 23 – 24.
[25]Exhibit 9.
The plaintiff referred to an occasion when she was called into the office by Ms Ryan and Ms Barton. The two assistant managers told her that her speed was unacceptable. Ms Barton’s recollection of that occasion, on New Year’s Day 2019, was consistent with the plaintiff’s evidence. Ms Barton, who in 2019 was a trainee store manager, recalled having to speak to the plaintiff about her performance on that occasion. She said she had to talk to the plaintiff about the fact that it was unacceptable that the plaintiff and another co-worker took so long for a load to be run. She recalled telling the plaintiff that it was unacceptable how slow the unpacking took, and she needed to try to keep up her speed for a bit longer and a little bit more. The plaintiff’s response was simply that she said “okay”.[26]
[26]T1-51.
Ms Mills, a sales assistant who worked at the defendant’s premises between 2016 and 2018, recalled relevantly her observations of the plaintiff when they were both store assistants. She worked alongside the plaintiff from time to time and initially observed that the plaintiff was “quite efficient with her job”.[27] Ms Mills observed a noticeable difference from the time the plaintiff first commenced employment, to the end of June 2019 (being the period before the incident) and in respect of the period around June 2019, it was her opinion that the plaintiff’s “performance was not as well as when she first commenced”. In other words, meaning that the plaintiff was “not as quick, not as enthusiastic, quite slow”.[28]
[27]T3-39, ll 23-37.
[28]T3-41.
The defendant sought to highlight that due to the evidence of Mr Hutchinson, Mr Gannon, Ms Mills, Ms Barton, Ms Dickson and Ms Taurau, the 19-minute timeframe was not strictly enforced, and the time expected for someone to unpack an ambient load varied depending on the load being unpacked. For instance, it could take 10 minutes for a load with chips, or longer than the 19 minutes with a load with heavier items. Be that as it may, my view is that it was still an average time over which ambient pallets should be unloaded during a shift, and, in any event, it seems to me that on several occasions prior to the incident, management at the defendant’s premises told the plaintiff that her speed of unloading ambient stock was too slow and she needed to improve. Further, in the months before the incident, the plaintiff approached Mr Hutchinson about a deputy manager role becoming available. Mr Hutchinson told her that if she got up to speed, then she would be considered for the role. In order for her to become more efficient, the plaintiff decided that she would have to increase the volume of stock she lifted at one time. Her attempts to increase her speed were supported by Ms Barton who would at times encourage her to pick up her speed.
The plaintiff also gave evidence that nobody said anything to her about the way she was lifting. It is not overly controversial that the plaintiff was never reprimanded, counselled or further instructed in respect of her manual handling technique by anyone in management at the defendant’s store.[29]
[29]Further Amended Statement of Claim, [13] and Further Amended Defence, [9].
Employer’s Liability
At common law, an employer owes a non-delegable duty of care to its employees to avoid exposing them to unnecessary risk of foreseeable injury.[30] The duty does not oblige the employer to safeguard employees completely from all perils.[31] Among other things, the duty obliges an employer to take reasonable steps to provide a safe place of work and a safe system of work.[32] Further, “the employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.”[33] What that requires was explained by Boddice J (McMurdo P and Gotterson JA agreeing) in S J Sanders Pty Ltd v Schmidt [2012] QCA 358 that:
“An employer’s duty of care requires that it establish, maintain and enforce a safe system of work. That obligation requires the undertaking of appropriate risk assessments, the devising of a proper method, training in its use, instruction to use that method, and the taking of reasonable steps to ensure its implementation. It includes the giving of such instructions, and the supervision of their enforcement, to experienced workers, having regard to the fact that an experienced worker may inadvertently or negligently injure themselves”.[34]
[30]Czatyrko v Edith Cowan University (2005) 79 ALJR 839, [12] (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).
[31]Knott v The Withcott Hotel [2015] QDC 15, [89] citing Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 318.
[32]Kondis v State Transport Authority (1984) 154 CLR 672, 680, 687-688 (Mason J)
[33]McLean v Tedman (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan and Dawson JJ).
[34][29], citing McLean v Tedman (1984) 155 CLR 306, 313; Reck v Queensland Rail [2005] QCA 228, [16] and Bus v Sydney County Council (1989) 167 CLR 78, 90.
By reason of s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA), the duty the defendant owed to the plaintiff is not breached unless the risk was foreseeable, not insignificant and, in the circumstances a reasonable person in the position of the defendant would have taken the precautions. Regarding the determination of whether there has been a breach of duty, ss 305B and 305C of the WCRA are as follows:
“305B General principles
(1)A person does not breach a duty to take 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); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
(a)the probability that the injury would occur if care were not taken;
(b)the likely seriousness of the injury;
(c)the burden of taking precautions to avoid the risk of injury.
305C Other principles
In a proceeding relating to liability for a breach of duty—
(a)the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b)the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.”
The enquiry as to whether a duty of care has been breached is prospective and not confined to the circumstances of the plaintiff’s accident.[35] The analysis must be undertaken from the viewpoint of the defendant, in the circumstances that were known, or ought to have been known, to the defendant at the time of the alleged injury.[36]
[35]See Lusk v Sapwell [2012] 1 Qd R 507 per Muir JA (Margaret Wilson AJA and A Lyons J agreeing), [18] and [22].
[36]Ibid.
The risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, it is not confined to the precise set of circumstances in which the plaintiff was injured. Rather, what must be reasonably foreseeable is “the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred”.[37] An employer is not required to guard against all risks of injury.[38]
[37]See Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232, [150].
[38]See Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, 41 per Williams J.
The first step, as has been identified to me on the plaintiff’s behalf, in assessing whether a breach of duty has occurred under s 305B of the WCRA is to identify the risk of injury.[39] I find in the present instance the relevant risk of harm is the risk of injury to an employee when manually handling products over 10 kilograms.
[39]Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, [77].
On the plaintiff’s behalf, it was submitted that the risk was both foreseeable and not insignificant in terms of s 305B(1)(a) and (b) of the WCRA, in circumstances where:
(a)The defendant operates a supermarket business that relies on its employees to manually re-stock items of product on the shelves.
(b)The evidence established that running load was a significant part of an Aldi store assistant’s job. The plaintiff’s evidence was that every shift she would generally do some form of load running.[40]
[40]T1-20, ll 19 – 39.
(c)The “Running Load – Ambient” task in “ALDI Stores Job Dictionaries – Store Assistants & Managers” confirmed that the task of running ambient load involved:[41]
[41]Exhibit 35.
(i)Frequent (being 34-66%) waist lifting of less than (or equal to) 10kg;
(ii)Occasional (being 10-33%) waist lifting of 10 to 15 kg;
(iii)Occasional (being 10-33%) push/pull of less than (or equal to) 10 kg;
(iv)Occasional (being 10-33%) overhead lifting of less than (or equal to) 5 kg; and,
(v)Occasional (being 10-33%) ground lifting of less than (or equal to) 15 kg.
(d)The “Running Load – Ambient” task is described as “medium”. “Medium” is described as “exerting 10-25kg of force occasionally, or 5-10kg of force frequently, or up to 5kg of force constantly to move objects…”.[42] One of the intentions of the ALDI Stores Job Dictionary is to provide:
“An analysis of the inherent physical requirements for each individual task; and identifying areas of risk within the business.”[43]
(e)The defendant, therefore in its own document, identified this task as a “medium risk”. The document is also completely contrary to the defendant’s pleaded case of the plaintiff being instructed to never lift on her own, more than 10 kilograms.
(f)One of the first slides shown in the Manual Handling Training Module is a slide which states that “36% of injuries that occur in the workplace are defined as manual handling injuries.”[44] In the video, the instructor states, inter alia, “poor manual handling can lead to workplace injuries and that is something we definitely want to avoid.”
[42]Exhibit 35, page 1.
[43]Exhibit 35, page 1.
[44]Exhibit 20.
At trial, it seemed to me that much of the focus of the defendant’s defence related to the measures the defendant took to avoid a foreseeable risk of injury, although I do note that it was specifically pleaded by the defendant that the task of unloading a pallet with 5 kilograms trays of tomatoes did not create a foreseeable risk of injury and the work did not expose the plaintiff to a risk of injury.[45] However, the case advanced by the plaintiff at trial was that the relevant risk of harm is the risk of injury to an employee when manually handling products over 10 kilograms. In any event, when viewed objectively, I am satisfied that such a risk was foreseeable and not insignificant in light of the features identified to me in the preceding paragraph (and where the employer has acknowledged in its own risk documentation that a worker will occasionally lift 10 to 15 kilograms).
[45]Further Amended Defence, [11](j) and (l)].
The plaintiff has agitated that she did not receive appropriate manual handling training as part of her induction. It was also emphasised on her behalf that the lack of appropriate manual handling training occurred in the context of a store culture where a significant emphasis was placed on speed of completing the task of running an ambient load. In circumstances where it was effectively left up to individual staff members to determine how much weight they were comfortable lifting at any one time, this, it was said, invariably led to unsafe manual handling practices evolving. There was no, or no effective, follow-up manual handling training and the plaintiff was not supervised.
Arguments have been advanced on the plaintiff’s behalf that there were a number of precautions a reasonable person in the defendant’s position would have taken against the risk of injury.
The first was to ensure that the plaintiff was provided appropriate initial training in manual handling. That first would have involved complying with the Manual Handling Module that was in existence at the time of the plaintiff’s induction. That, it was suggested, did not occur. Additionally, appropriate training would involve more thorough testing to ensure a proper understanding of what was being taught. There also ought to have been instructions given about the maximum weight the plaintiff should lift safely by herself and the maximum number of cardboard trays she should lift at any one time. On the defendant’s pleaded case, this ought to have been 10 kilograms and two cartons.
The defendant sought to rely upon a number of matters. In terms of the plaintiff’s manual handling training, it was highlighted that the plaintiff’s evidence-in-chief was that Mr Hutchinson showed her around the warehouse, the store, the office and the break room. The plaintiff was required to watch a video and was asked by Mr Hutchinson if she knew how to lift, to which she replied “yes”, in circumstances where she had not previously (prior to commencing with the defendant) received any training about lifting.[46] The effect of the plaintiff’s evidence in this regard, it was submitted, was that she lied to Mr Hutchinson about previous training. In cross-examination, the plaintiff accepted that by the end of watching the video on the iPad for manual handling training, she had been told of the following features of the manual handling training:
[46]T1-17.
(a)to carry out stretches before each shift;[47]
[47]T1-59.
(b)that there were stretching posters located in the store that contained pictures of stretches to carry out;[48]
[48]T1-59.
(c)the lifting technique to follow to safely lift and move items,[49] which technique comprised the need to plan how the item was to be lifted, to look where the item was and the path of its final destination, to examine the item and make a judgment on the weight of it, to look for the weight of the item listed on the box, to consider using a manual handling aid;[50]
[49]T1-60.
[50]T1-60.
(d)if gloves were required, they were always available in store;
(e)that she was shown a demonstration in the video of a lift which included the following detail:
(i)to place the feet as close as possible to the item that is being picked up;
(ii)to bend at the knees if bending down to pick up an item;
(iii)that she had to get a good grip on the item using the palms of her hands and then pull the item close to the body;
(iv)to then lift by straightening the legs and slightly straightening the back;
(v)once the item was in her hands, to be careful moving;
(vi)to continue to hold the item close to the body, at waist height and to pay attention to where she was walking; and,
(vii)once reaching the final destination, to lower the item carefully by bending the knees, and to put the item down and slide it into place;[51]
(f)that she would then be observing a demonstration to practice her manual handling.[52]
[51]T1-60 to T1-61.
[52]T1-62.
On the basis of the plaintiff’s evidence, it was submitted by the defendant, that a factual finding should be made that by the end of the iPad training on manual handling, the above features of manual handling had been appropriately explained to the plaintiff, and demonstrated to her in a video on the iPad. In my view that is not an ambitious submission to make, however, it is not a submission I am willing, on balance, to accept when balanced against the fact that the training was short in duration and occurred within the first day or two of the plaintiff’s employment. Whilst I am not of the view that the initial training was entirely unsatisfactory, there were some features which cause me concern. Relevantly, based on the evidence which I have preferred, it is my view that more thorough testing of the initial training in manual handling should have occurred to ensure a proper understanding of what was being taught, together with clear, explicit instructions given about the maximum weight the new staff member should lift safely by themselves at any one time, including the number of cardboard trays. I maintain this view despite Mr Hutchinson’s evidence that the plaintiff located him in the store, said that she had finished the module, and after grabbing the iPad and checking to see where things were up to, Mr Hutchinson demonstrated the picking up of a box to her, and had her repeat the process, where he had her “physically do it”.[53] It was his evidence in terms of the demonstration to her that he picked up the box, held it close to his body, stood and turned using his feet, not twisting his waist, walked to another part of the warehouse, placed down gently bending his knees (or whatever), picked it back up again and walked it back to where it was found, bending his knees and lowering the product back into place.[54] Perhaps the plaintiff should have demonstrated to Mr Hutchinson how she lifted a number of boxes or cardboard trays, of various weights, sizes and dimensions (as opposed to a fleeting assessment).
[53]T1-91.
[54]T1-92.
I also maintain the view that there were some features of the training which were reasonably lacking even though it was Mr Hutchinson’s evidence that he then had the plaintiff do the same demonstration that he had done, where she “… looked at the box, she sized it up, she positioned her feet close to the knee-box, then she bent with her knees like squatting down. She picked the box up comfortably, held it to her body, then stood up and then turned using her feet, walked across the warehouse and placed it down on another D pallet with bending her knees, and then stood up and I got her - then she repeated the process…”.[55] That evidence is in conflict with the plaintiff’s evidence, which I have accepted, regarding the practical manual handling which she received on the first day. I am unable to reach the view, on the defendant’s case, that the plaintiff was, by the manual handling training conducted on 24 May 2018, adequately trained and instructed to safely perform the task of unpacking an ambient pallet, including the lifting and carrying of trays of tinned tomatoes.
[55]T1-92.
Additionally, it was submitted by the defendant that it is not open to make any factual finding that the plaintiff’s manual handling training lasted only four minutes and two seconds. I accept this. I also note too that this submission was accepted on the plaintiff’s behalf that the four minutes and two seconds is not an accurate reflection of the entire time taken to conduct the manual handling training. Moreover however, the more significant aspects of the Manual Handling Induction module were that:
(a)at no point in the video on manual handling technique was there any instruction about the maximum weight an employee could lift safely or the maximum number of boxes or items an employee should carry;
(b)the lifting demonstration in the video was of an employee lifting a box in the warehouse in what was clearly a staged scenario. The demonstration bears limited resemblance to the types of product the plaintiff was required to lift when running ambient load as part of her job;
(c)the iPad module contained a quiz with three simple questions. The quiz could not be considered a true “test” of an inductee’s knowledge of manual handling. There were only two possible answers to each question. The correct answer to each question was a photograph of the instructor who had demonstrated the correct lifting technique in the video shown only moments early, which clearly revealed the correct answer.
I also accept as was contended on the plaintiff’s behalf that another precaution a reasonable person in the defendant’s position would take is to maintain and enforce a system of work where:
(a)appropriate manual handling techniques, including the need to keep the load close to the body were enforced by members of the management team;
(b)the speed of completion of the task was not emphasised by management, particularly for newer, inexperienced members; and,
(c)a proper system of supervision occurred so that unsafe manual handling practices can be observed and corrected. Only one to two trays of canned tomatoes were to be carried at one time.
It was submitted these are all measures which were discussed in Mr O’Sullivan’s report.[56] Mr O’Sullivan is an Ergonomist. It was emphasised by the plaintiff that Mr O’Sullivan’s opinions were not contradicted at trial. Be that as it may, I do not have to act upon his opinions to find in favour of the plaintiff because ultimately it is the trial judge’s assessment about matters of law and fact which is relevant. So much so was acknowledged by Mr Lynch of counsel for the plaintiff during his closing address.
[56]Exhibit 2, Tab 4, particularly at page 24.
Even without considering Mr O’Sullivan’s opinions of which I am, on this occasion, not inclined to necessarily consider, it is my assessment of the evidence that another precaution a reasonable person in the defendant’s position would have taken to maintain and enforce a system of work would be to implement a proper system of supervision to reduce and/or avoid unsafe manual handling practices to ensure, for instance, that product was lifted and carried close to the body, or that only one to two trays of product be permitted to be carried at one time, especially where speed of the completion of the task was not emphasised to inexperienced or newer staff members.
As to the factors in s 305B(2) of the WCRA, namely, the probability of the injury occurring and the likely seriousness of the injury, these are matters which, as already demonstrated, were recognised by the defendant in its induction training material. It was documented in the defendant’s records that a person running an ambient load would be required to waist lift 10-15 kilograms, up to 33 per cent of the time.[57] Given that level of frequency and weight, there is a demonstrated high likelihood of serious physical injury if a person were to adopt unsafe manual handling techniques. It was submitted on behalf of the plaintiff that the burden of taking the precautions was low, in circumstances where the defendant had already in place a training program and employed management staff who had been capable of enforcing the appropriate system of work. I accept this submission. The plaintiff had not received any training in respect of the maximum weight she was able to safely lift, or how many trays of product she was able to safely carry at one time. The training she did on manual handling was a cursory and as part of a much larger volume of training information. The testing of the manual handling understanding was superficial and inadequate. I am left with the impression that it was effectively left up to individual staff members to determine how much weight they were comfortably lifting at any one time which invariably led to unsafe manual handling practices evolving. There was no or no effective follow up manual handling training and the plaintiff was not supervised. At a minimum there ought to have been instructions given about the maximum weight the plaintiff should lift safely by herself and the maximum number of cardboard trays she should lift at any one time. Even on the defendant’s pleaded case, this ought to have been 10 kilograms and two cartons. There was no proper system of supervision to prevent unsafe manual handling practices because management did not observe or correct the plaintiff. Therefore, I find that the defendant breached its duty of care it owed to the plaintiff.
[57]Exhibit 35.
Having been satisfied that the defendant has breached its duty of care, I move to the issue of causation.
Pursuant to s 305D (1) of the WCRA, the plaintiff must establish that the breach of duty was a necessary condition of the harm and that it is appropriate for the scope of liability of the defendant to extend to the injury. The first requirement, that the breach was a necessary condition of the harm, requires the plaintiff to prove that “but for” the defendant’s breach of duty, her injuries would not have occurred. [58]
[58]Strong v Woolworths Limited (2012) 246 CLR 182, [18].
In my view, the provision of proper manual handling training or the enforcement of safe procedures for the performance of the task would have either prevented or significantly minimised the risk of injury to render it unlikely that the incident would have occurred because such measures would have, on balance, brought to the plaintiff’s attention the inadvisability of lifting three trays of canned tomatoes at one time. Indeed it may have, as submitted by the plaintiff, reduced any emphasis placed on the importance of her speed, which in turn would have eliminated the plaintiff’s perceived need to lift as many products as possible at the one time, such as she did when the incident occurred.
Further, the evidence was that at the time of the incident the plaintiff was striving to secure a promotion. There was no evidence that she disobeyed any staff instructions. Therefore it is plausible that she was striving to comply with management expectations. Accordingly, the clear inference is that if she received proper training or instructions from management then she would have complied with that and not lifted the three trays of tomatoes away from her body and therefore would not have suffered her injuries.
The medical evidence also supports a finding that the plaintiff in fact suffered an injury during the incident. There is no issue around the scope of liability given that the incident plainly occurred in the course of the plaintiff’s employment duties.
Accordingly, I am satisfied that it has been established, that but for the defendant’s negligence, the plaintiff would not have suffered the injury to her back.
Contributory Negligence
The defendant pleaded that if liability was established, the plaintiff’s damages should be reduced by 100 percent for contributory negligence (or to such a lesser extent as the court deems fit) because the plaintiff:
(a)failed to act with due care and attention;
(b)failed to take responsible care for her own safety;
(c)failed to take account of the obvious risk in lifting three cartons of tomatoes in circumstances where:
(i)it was obvious that three cartons would be unstable;
(ii)she had not been trained and instructed to adopt the technique;
(iii)she had been trained in safe manual handling practices (both theoretically and practically);
(iv)her training (both theoretical and practical) did not instruct her to adopt the technique;
(v)a reasonable person in the position of the plaintiff (who underwent the theoretical and practical training that the plaintiff had undertaken) would not have adopted the technique;
(d)failed to comply with training and instruction provided by the defendant (both theoretical and practical);
(e)failed to comply with the defendant’s safe system of work.
Pursuant to s 305F of the WCRA, the same principles that apply in determining breach of duty by defendant are engaged in determining contributory negligence by the plaintiff. The standard of care required of the plaintiff is that of a reasonable person in her position, and the matter is to be decided on the basis of what the plaintiff knew or ought reasonably to have known at the time.[59] Section 305H provides the circumstances where a court may make a finding of contributory negligence.
[59]Section 305F(2) of the WCRA.
Given my earlier findings regarding the training and instruction which the plaintiff received, on balance, I am not satisfied a finding of contribution can be made, despite at least the employer requiring the plaintiff to watch the instructional video, complete a quiz and confirm with Mr Hutchinson, when it was not completely accurate, that she knew how to lift. A principal criticism I have of the employer is the enforcement of safe procedures in the system of work. I am therefore unable to find that the plaintiff failed to comply with instructions regarding her permissibility or otherwise to carry more than two cartons of canned tomatoes. I am not satisfied that she disobeyed any instruction given to her by the defendant or undertook an activity involving an obvious risk or failed to account of an obvious risk. I am also not satisfied that she knew that she was taking a risk for her own safety. The plaintiff’s evidence, which I am prepared to act upon, was that she was not instructed to lift any maximum weight and was not instructed to lift any maximum number of trays.
Further, evidence was led from other witnesses that they would engage in the same or similar lifts.
All in all, it seems to me that it was essentially up to the individual employee to determine what was reasonable. Accordingly, I am not satisfied that a reasonable person in the plaintiff’s position would not have lifted three trays of canned tomatoes when such an activity was not prohibited or discouraged. I therefore make no order for contribution.
Quantum
The incident took place on 28 June 2019 at a time when the plaintiff was 33 years of age. She is now 37.
On the day of the incident, the plaintiff completed her shift and worked the next two days before raising the incident with Mr Hutchinson on 1 July 2019. A formal report was made the following day.[60]
[60]Exhibit 34.
On 2 July 2019, the plaintiff presented to her General Practitioner complaining of a “twinge”. The doctor’s impression was of a “likely disc irritation”. She was advised of “heat packs, stretches and analgesia” and to return two days later for further advice and a medical certificate was issued. The plaintiff then returned two days later where it was reported of ongoing pain in her lumbar region. She was referred for physiotherapy. On 8 July 2019, she commenced physiotherapy.
CONCLUSION
There is judgment for the plaintiff in the amount of $157,767.71. I will hear from the parties as to costs.
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