Parry v. Woolworths Limited

[2008] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

Parry v Woolworths Limited [2008] QDC 231

PARTIES:

Mervyn Parry

(Plaintiff)

v

Woolworths Limited

(Defendant)

FILE NO/S:

BD 776/06

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2008 – 29 May 2008

JUDGE:

Searles DCJ

ORDER:

PLAINTIFF’S CLAIM BE DISMISSED WITH COSTS

CATCHWORDS:

Negligence – Breach of Statutory Duty – Breach of Contract – Estoppel –Workplace Health and Safety Act 1995 (Qld) – Validity of Notices of Assessment under s 185 Workers’ Compensation and Rehabilitation Act 2003 (Qld)

COUNSEL:

R. Myers – Plaintiff

D. North SC & R. Whiteford - Defendant

SOLICITORS:

Shine Lawyers – Plaintiff

DLA Phillip Fox - Defendant

1. The plaintiff was, and is, a butcher working for the defendant and claims damages for an injury which he says occurred on 19 or 20 November 2003. (Hereinafter referred to as 19 November 2003). The injury was a prolapsed disc in the plaintiff’s lumbo-sacral spine. In short, a lower back injury. The plaintiff alleges negligence, breach of statutory duty under the Workplace Health and Safety Act 1995 [Act] and breach of contract against the defendant.

1. The plaintiff normally worked in the defendant’s boning room but on this occasion was working overtime in the value added room.  According to his supervisor Mr Auld who gave evidence, that room was in the nature of an abattoir.

WHAT HAPPENED ON 19 NOVEMBER 2003?

Plaintiff’s evidence

1. The plaintiff said he was asked by Mr Auld to give him a hand to lift up a tub of meat.[1]  He said the tub in question was a white oval tub with a handle on each side about two to two and a half feet in depth and at the time three quarters filled with meat.[2]  In metric measure adopting a conversion of 25.4 mm per inch[3] that would make the tub’s height/depth, on the plaintiff’s evidence, between 609.6 mm (24 inches x 25.4) and 762 mm (30 inches x by 25.4).  If the tub was three quarters full as the plaintiff said, then the meat product would have been between 457.2 mm (6 inches) and 571.5 mm (7.5 inches) from the top.  The plaintiff identified the tub in a supplier’s brochure.[4]

   [1] Transcript day 2 p 9 line 10.

   [2] Transcript day 2 p 9 lines 15-20.

   [3] Instant metric reckoner – Peter W Fyfe, Lansdown Press 1976 version p 9.

   [4] Exhibit 21; Transcript day 2 p 37 lines 45-50.

1. The plaintiff said that, when lifting the tub he was pretty sure he used his left hand, bent his knees to go down and lifted the tub up with Mr Auld.  He said he felt a pain in his back and let Mr Auld take most of the weight.  He said he was not sure whether he put his right hand under the tub to tip it but he could have.  He said the pain he experienced occurred pretty close to lifting the tub off…