Prasad v Ingham's Enterprises Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Prasad v Ingham’s Enterprises Pty Ltd [2016] QCA 147

PARTIES:

ROSELYN PRASAD
(appellant)
v
INGHAM’S ENTERPRISES PTY LTD
ACN 008 447 345
(respondent)

FILE NO/S:

Appeal No 8810 of 2015
DC No 2892 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


District Court at Brisbane – [2015] QDC 200

DELIVERED ON:

7 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2016

JUDGES:

Fraser and Philip McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is dismissed.

2.   The appellant pay the respondent’s costs of and incidental to the appeal on a standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where the appellant was an employee of the respondent – where the appellant developed the condition bilateral plantar fasciitis – where the respondent owed a duty to exercise reasonable care to avoid a foreseeable risk of injury to the appellant – where the appellant alleged several conditions of her working environment constituted a breach of the duty owed to her by the respondent – where the primary Judge found the risk of the development of bilateral plantar fasciitis was reasonably foreseeable – where the primary Judge found the respondent had not breached its duty – whether the primary Judge erred in finding the respondent had not breached its duty

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – where the primary Judge found that the appellant’s work conditions were a cause of her plantar fasciitis – where the primary Judge found that the appellant had not established that her condition was caused by the respondent’s breach of duty – where the primary Judge’s finding was made on the basis that there was no evidence any measure taken by the respondent would probably have prevented the appellant developing plantar fasciitis – whether the primary Judge erred in failing to find that the respondent’s breach of duty caused the appellant’s injury

Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53, applied
Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, cited
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, applied
Prasad v Ingham’s Enterprises Pty Ltd [2015] QDC 200, not followed
Tame vNew South Wales (2011) 211 CLR 317; [2002] HCA 35, cited
Woolworths Ltd v Perrins[2015] QCA 207, applied

COUNSEL:

P W Hackett, with A S Katsikalis, for the appellant
M T O’Sullivan for the respondent

SOLICITORS:

Carman Lawyers for the appellant
BT Lawyers for the respondent

  1. FRASER JA:  For the reasons given by Boddice J, and the additional…

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Details
Case
[2016] QCA 147
Decision Date

CaseChat Overview and Summary

The appellant in this case brought an action against the respondent, her employer, for injuries sustained during her employment. The appellant claimed that she developed bilateral plantar fasciitis due to her working conditions, which required her to stand for long periods on concrete floors at a temperature of 13 degrees Celsius. The respondent denied any negligence and argued that the injuries were due to pre-existing conditions or the appellant's contributory negligence. The case was heard by the court of appeal, which was tasked with determining whether the primary Judge erred in finding that the respondent had not breached its duty and that the medical evidence did not establish causation.

The court examined whether the primary Judge correctly found that the respondent had not breached its duty of care. The primary Judge had accepted that the appellant's working conditions were a cause of her plantar fasciitis but found that the respondent had not breached its duty of care as there was no evidence that any measures taken by the respondent would probably have prevented the appellant from developing plantar fasciitis. The court of appeal needed to determine if this finding was correct and if the primary Judge had erred in his assessment of the evidence.

The court of appeal found that the primary Judge had not erred in his assessment of the evidence. The court noted that while the appellant's working conditions were a cause of her plantar fasciitis, there was insufficient evidence to establish that the respondent's breach of duty was the cause of her injury. The court found that the primary Judge's conclusion was supported by the evidence presented, and there was no basis to overturn his finding. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal on a standard basis.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal on a standard basis.

Background

Background to the litigation

The appellant appeals that decision. At issue is whether the primary Judge erred in finding that: the respondent had not breached its duty; and that the medical evidence did not establish any relevant causation.Background The appellant was born on 2 December 1971. She had previously worked for the respondent between 1994 and 1997. She commenced employment with the respondent again in March 2000. She was employed as a process worker at the respondent’s chicken processing plant at Murarrie in the State of Queensland. The appellant worked five days a week. A working day consisted of a 6 am start with four working sessions of eighty four minutes, interspersed with breaks of ten minutes, fifteen minutes and thirty five minutes. Halfway through each work session, the appellant stretched for a couple of minutes. Her duties required her to stand for lengthy periods. The appellant mainly worked in a room where she packed chicken pieces into plastic trays. The appellant would take chicken pieces from a conveyor belt, place them in in plastic trays and then put the packed trays onto a higher conveyor belt. At times, the higher belt stopped. When this occurred, the appellant loaded wrapped chicken pieces onto trolleys and pushed them into the cold room. The area in which the appellant worked had a concrete floor and was cooled to thirteen degrees Celsius. The appellant dressed warmly under a food hygiene uniform supplied by the respondent. The uniform included a set of boots. The appellant wore two pairs of socks to keep her feet warm and wore larger sized boots. When the appellant recommenced employment in 2000 the workers stood on rubber mats placed on the concrete floors. Those rubber mats were removed in 2006 for health and safety reasons. After their removal, the appellant would stand on cardboard sheets, but she was subsequently told by supervisors she was not allowed to do so. The appellant also had access to a metal stand. In March 2010, the appellant reported suffering from pain in her feet. Her heels were swollen and red, the right heel being worse. The appellant saw a podiatrist and later a general practitioner, who referred her to an orthopaedic surgeon. When the appellant found it too painful to perform her normal working duties she was transferred to lighter duties. Her employment was terminated on 26 June 2010. The appellant subsequently had treatments to her heels in hospital, four treatments on each side. The treatments produced some improvement. She also used creams to treat her pain. Her pain lessened when she was no longer required to stand for lengthy periods of time. The appellant later resumed employment on a part time basis with another employer. The appellant commenced the proceeding against the respondent in 2011.The proceeding The appellant alleged that her duties as a process worker involved repetitive activities of standing in rubber boots on concrete floors for long periods in areas which were maintained at cold temperatures of 13 degrees Celsius. The appellant was required to pick chicken pieces from conveyor belts and pack them into trays, crates or boxes and to work on the breast line and downstream wrapper/packer line.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The respondent denied it was negligent and in breach of contract and that any negligence or breach of contract caused the appellant’s bilateral plantar fasciitis and bilateral heel spurs. If the appellant suffered such conditions they were as a result of pre-existing congenital developmental or degenerative abnormalities or a pre-existing disposition to the development of those conditions. The respondent also contended the appellant had failed to mitigate her loss and that her injuries were caused or contributed to by the appellant’s contributory negligence.Decision below The primary Judge accepted that the appellant’s duties of employment required her to work in 13 degrees Celsius, whilst standing in rubber boots on concrete floors. The primary Judge also accepted that the appellant in March 2010, had developed swollen and red heels which caused her significant pain. However, the primary Judge found aspects of the appellant’s evidence unsatisfactory. Her explanations were found unconvincing on occasions. There were also inconsistencies in her evidence. The primary Judge concluded that whilst it had not been shown the appellant was deliberately exaggerating her symptoms or inventing them, he was cautious about her reliability. In respect of the appellant’s pleaded injuries, the primary Judge found that the appellant’s bilateral heel spurs were a constitutional condition which had nothing to do with her working environment. The primary Judge found that the other condition, plantar fasciitis, is a fairly common condition which can arise as a consequence of a wide range of matters placing unusual stress on the ligaments in the foot. Whilst it appeared that most of the factors identified as being associated with the condition were not present in the appellant’s case, the primary Judge concluded that more likely than not the conditions under which the appellant was working were a cause of the plantar fasciitis. The primary Judge accepted the appellant wore rubber boots but did not accept the boots were defective in that they provided no adequate shock absorbing sole. The primary Judge also did not accept the appellant was required to carry boxes by balancing a stack of them on her toe. If the appellant did so it was by choice in circumstances where she was discouraged by the respondent to do so. The primary Judge found an assertion that the appellant was required to carry these boxes 50 metres a gross exaggeration. The primary Judge also did not accept the appellant undertook such a task with any great frequency. The primary Judge accepted the appellant was required to work standing on concrete floors but found that metal stands were provided if workers requested them. The primary Judge also accepted the respondent had at some point removed the rubber mats because they presented a tripping hazard and a risk to hygiene. The primary Judge accepted anti‑fatigue matting was available and used at other food processing plants but was not persuaded there was any negligence in the removal of the rubber mats by the respondent.

Ratio Decidendi

Legal Principle Established

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