Zealley v Liquorland (Aust) Pty Ltd & Anor
[2015] VSC 62
•5 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 3570
| MICHELLE ZEALLEY | Plaintiff |
| v | |
| LIQUORLAND (AUSTRALIA) PTY LTD | First Defendant |
| and | |
| LINFOX AUSTRALIA PTY LTD | Second Defendant |
---
JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 14, 15, 16, 20, 21, October and 11 November 2014 |
DATE OF JUDGMENT: | 5 March 2015 |
CASE MAY BE CITED AS: | Zealley v Liquorland (Aust) Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 62 |
---
NEGLIGENCE – Workplace injury – unloading from rear of a truck operated by third party – whether employer breached its duty of care – whether third party breached its duty of care – apportionment between defendants – contribution from another tortfeasor - whether employer’s conduct after the injury was negligent and caused further damage – Wrongs Act 1985 (Vic), Part IV.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer QC with Mr A Hill | Slater & Gordon |
| For the First Defendant | Mr P Scanlon QC with Mr B McKenzie | Thomson Geer |
| For the Second Defendant | Mr R Gillies QC with Ms K Popova | HWL Ebsworth |
HIS HONOUR:
Introduction
Just prior to the commencement of the trial, the plaintiff, Ms Michelle Zealley, settled her claims against her employer, Liquorland (Australia) Pty Ltd (Liquorland) and the owner-operator of a delivery truck, Linfox Australia Pty Ltd (Linfox). These two defendants, however, could not settle their contribution dispute, which is now resolved by this judgment.
An allied claim by Wesfarmers Ltd[1] under s 138 of the Accident Compensation Act 1985 (Vic) is considered in a separate judgment.[2]
[1]Liquorland is now part of Wesfarmers Ltd, though at the time of the incident it was a subsidiary of Coles.
[2][2015] VSC 63 (s 138 proceeding).
There was no dispute that Ms Zealley sustained an injury to her back on 22 July 2008 at Liquorland’s Casey Central store (Casey Central) while assisting in the unloading of roll cages containing cartons of alcoholic beverages from a Linfox truck. Nor was there any dispute that subsequent to the accident Ms Zealley developed a major psychiatric condition to the point that she now, six years after the accident, continues to experience regular pseudo-epileptic fits, described as ‘pseudo seizures’.
The issue for determination is the responsibility of each defendant for Ms Zealley’s injuries pursuant to Part IV of the Wrongs Act1958 (Vic).[3] There is, however, one slight wrinkle in what would be an otherwise standard contribution claim. Linfox asserts that part of the damage sustained by Ms Zealley (both to her back and to her psyche) related to Liquorland requiring Ms Zealley to carry out work beyond her certified medical capacity when she returned to work 30 July 2008.[4]
[3]The defendants agreed that there was no issue that the settlement amount was excessive.
[4]In the s 138 proceeding Linfox also asserted that the termination of Ms Zealley’s employment broke the chain of causation and/or was not reasonably foreseeable and that it could not be held liable for any loss and damage caused by that event.
I have determined that there is some substance to this allegation, although I regard it as of minor significance when compared to the injury and damage suffered by Ms Zealley as a result of the unloading accident. Both Liquorland and Linfox are liable for that injury.
Responsibility between these two parties should be apportioned 40 per cent to Liquorland and 60 per cent to Linfox. My reasons now follow.
The contribution proceeding
Section 23B(1) of the Wrongs Act permits a tortfeasor ‘liable in respect of any damage suffered by another person’ to recover contribution from any other person ‘liable in respect of the same damage’. Accordingly, it matters not whether the liability flows from the same event or whether an award of damages against the respective parties differs provided the parties are liable in respect of the same damage.[5]
[5]See Mahony v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 526; Mitchell Morgan Nominees Pty Ltd & anor v Vella & ors [2011] NSWCA 390, [37].
Liquorland’s notice of contribution to Linfox relates solely to Linfox’s alleged breach of duty in relation to the unloading of the truck.
The Linfox notice of contribution not only alleges negligence on the part of Liquorland in relation to the unloading of the truck, but also in relation to the work carried out by Ms Zealley when she returned to work after the accident. The following are the relevant particulars of negligence:[6]
[6]Linfox’s Amended Notice of Contribution filed in Court 16 October 2014, [9].
(f)Requiring or permitting the worker to engage in work which entailed repetitive bending and excessively heavy lifting –
·at the time of;
·subsequent to –
the accident.
(g)Requiring or permitting the worker to engage in work which entailed repetitive bending and excessively heavy lifting –
·at the time of;
·subsequent to –
the accident when it knew or ought to have known that she –
·had an injured and vulnerable back;
·was in a psychiatrically vulnerable state.
(h)Subsequent to the accident defying medical advice by failing to provide the worker with light duties.
(i)Failing to heed the worker’s requests for assistance in the performance of her duties.
(j)Failing to take any or any sufficient precautions to avoid the worker aggravating any injury sustained as a result of the accident.
(k)Causing injuries to the worker’s back or aggravating injuries to her back on 22 July 2008, 22 September 2008, 2 January 2009, 23 February 2009, 10 June 2009, 22 June 2009, 5 September 2009 and 9 November 2009.
(l)Failing to ensure that the worker was sufficiently supervised and counselled to ensure that her –
·back injuries were;
·psychiatric state was –
not aggravated.
(m)Failing to comply with the provisions of the Occupational Health & Safety Act 2004 (Vic) and the Occupational Health & Safety (Manual Handing) Regulations 2007.
An alternative claim based upon breach of statutory duties pursuant to the Occupational Health and Safety (Manual Handling) Regulations 2007 was also pleaded.
Section 24(2) of the Wrongs Act provides:
… the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person’s responsibility for the damage;
It was, consistent with authority and the terms of s 24(2), open to Linfox to make these allegations in endeavouring to reduce its liability. The damage suffered by Ms Zealley as a result of the accident was to her back and psyche, for which if Linfox is found liable it would be responsible in the contribution proceeding. It is open to Linfox to argue that if there was tortious conduct on the part of Liquorland between August 2008 (when Ms Zealley returned to work) and the end of November 2009 (when Ms Zealley ceased work) which contributed to the damage to her back and psyche then this may be brought into account in determining the extent of Liquorland’s responsibility for that damage.[7]
[7]See the further discussion commencing at [80] of these reasons.
The Coles corporate structure
There were three principal actors who gave evidence at the trial: Ms Zealley, Mr Field and Mr Ord,[8] each Liquorland employees and present at Casey Central on the day of the accident.
[8]Mr Loran, the driver of the Linfox truck, was not called to give evidence.
Liquorland formed part of an amorphous grouping of wholly-owned subsidiaries of Coles, known as ‘Coles Liquor Group’ (the Group).[9] The three companies within the Group at the time of Ms Zealley’s accident were Liquorland, Vintage Cellars and First Choice Liquor.[10] When Ms Zealley was initially engaged on a casual basis her contract provided that she work for the Group.[11] Linfox’s obligations for delivering to Casey Central were determined by an agreement to which another Coles company, Coles Supermarkets Pty Ltd, was the signatory (Transport Agreement).[12]
[9]The group of companies is also referred to as ‘Coles Myer Liquor Group’..
[10]T174.
[11]Letter of Coles Myer to Ms Zealley concerning employment dated 20 September 2005 (Exhibit WF3).
[12]Intrastate Transporting Agreement with Linfox (Exhibit WF8).
In terms of its day-to-day operations, Casey Central was run by Liquorland employees. From time to time, employees of Coles had an involvement in Casey Central. The most obvious example was that of management of employment contracts and workplace injuries. In Ms Zealley’s case, this appears to have been managed out of Coles’ Tooronga head office, although it was never clear as to which corporate part of Coles was responsible for overseeing the return-to-work program other than it was not managed by Casey Central employees (who were responsible for implementing it).
Casey Central – management structure
I have set out Ms Zealley’s background in the s 138 judgment.[13] It is only necessary here to recite matters relevant to her employment with Liquorland.
[13][2015] VSC 63.
Casey Central is located at the corner of Little Croft Crescent and Narre Warren-Cranbourne Road, Narre Warren.
Ms Zealley commenced employment in September 2005 and worked at its Cranbourne West store as a casual employee. She later became a permanent full-time employee,[14] and was promoted to second-in-charge of the store.[15] In the first half of 2008 she was transferred to Casey Central to be the second-in-charge to manager Mr Field,[16] who at around the same time was transferred to Casey Central from another store.
[14]Letter of Coles Myer Liquor Group to MS Zealley in relation to employment (Exhibit WF3); see also T81-82.
[15]T87-88.
[16]T87-88.
Mr Field commenced working with Liquorland as a full-time sales assistant in 2002 and became a store manager the following year.[17] He had managed Liquorland stores in Hampton, Waverley Gardens and Dandenong before being transferred to Casey Central, [18] where he was responsible for its day-to-day operation.
[17]T431.
[18]T432.
Ms Zealley worked under Mr Field’s direct supervision. Mr Field’s supervisor was Mr Gary Ord, Network Store Manager, who was responsible for Casey Central and eleven other stores.[19] He often worked from Casey Central, which was close to his home[20] and was working there on the day of the accident.
[19]T277.
[20]T286
Linfox’s arrangement with Coles for the unloading of goods at Casey Central
As I mentioned earlier, the Group comprised three discrete branded liquor companies owned by Coles (with outlets bearing each company’s name). Those outlets (including Liquorland) operated within the Coles retailing framework.
Linfox was contracted to provide delivery services to the Group via the Transport Agreement,[21] which commenced on 20 June 2008. The relevant parts read as follows:
[21]Exhibit WF8
3.1 Services
(a)[Linfox] must provide the services to Coles, and any other services, functions or responsibilities not specifically described in this agreement, but which are necessary or incidental to the Services.
(b)[Linfox] is engaged to provide the Services in respect of Goods collected from the distribution centres as specified in item 8 of Schedule A (Exclusive Services)
(c)Coles will only engage another supplier to provide the Exclusive Services where:
(i)Coles reasonably expects that [Linfox] will be unable to provide any or all of the Exclusive Services; and
(ii)Coles has consulted with [Linfox] about its concerns and given [Linfox] opportunity to satisfy Coles that [Linfox] can provide the Exclusive Services in question.
…
3.3 Method of providing the Services
(a)[Linfox] must and must [sic] ensure that the Personnel provide the services
(i)in a competent proper and careful prompt professional and business like manner and in accordance with industry standards;
(ii)exercising the highest standards of skill diligence, knowledge, judgment and care;
(iii)in a safe and environmentally conscious manner;
…
20.3 Employment liability indemnity
[Linfox] must indemnify each member of the Coles Group in respect of any loss, expense, damage or liability suffered or incurred by members of the Coles Group as a result of a claim made against Coles in respect of:
(a)labour-related costs incurred in respect of, or as a result of, the provision of the Services to Coles; or
(b)a dispute with [Linfox] Personnel involved in the provision of the Services to Coles.
except to the extent that the loss, expense, damage or liability is caused or contributed to by the negligent or wrongful act or omission of Coles or its Personnel (excluding [Linfox]).
Ms Polak, the Health and Safety Adviser to the Group,[22] described the arrangements for transferring the goods to Casey Central from a Distribution Centre in Somerton where they were packed:
So when [the truck] went to the [Distribution Centre], that was a third party run distribution centre and I believe it was Toll and they packed the cages for us and then that was delivered by Linfox to the stores.[23]
[22]T158.
[23]T177. See also Mr Field’s evidence at T433.
She said that the usual arrangement was then for the Linfox truck, having been loaded at the Distribution Centre, to be driven by a Linfox employee to the relevant Liquorland store.
Unlike other Liquorland stores (such as Dandenong where Mr Field worked prior to commencing at Casey Central), Casey Central was a ‘freestanding store’: it was not located inside or attached to a Coles supermarket, so deliveries took place without the use of a Coles supermarket loading bay.[24] This meant that it was necessary for the truck to park outside the rear entrance to the store and for the goods to be lowered to the ground and then taken into the store.[25]
[24]T89.
[25]T90.
I mentioned earlier that Ms Zealley injured herself in the course of unloading roll cages from the truck. Roll cages have four wheels (two fixed and two for turning) and no braking devices.[26] They were described by Mr Ord as being cumbersome and heavy. The advantage of the roll cages, over that of pallets, is that the cages can be wheeled into the store and the cartons of liquor placed into position without any double handling.[27] Ms Zealley said that certain alcoholic beverages were conveyed in roll cages and others on pallets. A roll cage, similar to that involved in this accident, is shown in the photograph below.[28]
[26]T86, T136.
[27]T176, T292, T383.
[28]Photograph of similar roll-cage (Exhibit WF4).
The type of truck used by Linfox to deliver the roll cages to Casey Central was a covered tray, similar to that shown in the photographs below, the first of which also shows an Electric Pallet Jack (EPJ). Of relevance to this case was the tailgate used to convey the goods from the tray of the truck onto the ground, shown in the second photograph. Linfox trucks and others (and particularly the one involved in this case and as shown in the photographs) had a ‘tuck-away tailgate’ which is stored underneath the tray and can be electronically operated by the driver from the tray of the vehicle.
The usual process in 2008 was for the driver to deploy the tuck away tailgate into position at the rear of the truck and then take the goods (either on a pallet or a roll cage) onto the tailgate, then lower the tailgate to the ground. The goods were then taken into the store as shown in these black and white photographs extracted from a Linfox document depicting the system for loading and unloading of liquor roll cages (the safe working procedure), [29] which Linfox admitted set out the proper system for loading/unloading.[30]
[29]Linfox’s Safe Working Procedure for the Loading/Unloading of Liquor Rollcages dated 5 December 2007 (Exhibit WF2).
[30]Linfox’s Answers to Interrogatories (Exhibit WF6).
Part of Schedule B of the Transport Agreement dealt with the loading and unloading of delivery vehicles:
SCHEDULE B – SERVICES
1. Definitions
For the purpose of this schedule:
Delivery Schedule is the delivery roster and delivery time provided by Coles to [Linfox] from time to time; and
Procedural Requirements are Coles’ operational processes and systems for transporting the Goods from pick up points to delivery points nominated by Coles and provided by Coles to [Linfox] from time to time.
2. Collecting and delivering the Goods
(a)the Supplier must collect the Goods from pick up points nominated by Coles and deliver the Goods to delivery points nominated by Coles in accordance with the Delivery Schedule.
(b)if there is a delay collecting or delivering the Goods in accordance with the delivery Schedule. [Linfox] must promptly notify Coles and, if possible, the relevant retail business of Coles Group Limited receiving the Goods.
(c)Within a reasonable period after receipt of a notice, Coles may change the Delivery Schedule.
(d)[Linfox] acknowledges that the Delivery Schedule may change depending on the number at stores and the volume of the Goods
(e)At the pick up point nominated by Coles, [Linfox] must:
(i)if on a Coles site, [Linfox] must comply with the Coles site rules and regulations notified by Coles to [Linfox];
(ii)ensure that the correct loading procedures are followed; and
(iii)direct and is responsible for the configuration of multi-loaded trailers.
(f) At the delivery point nominated by Coles:
(i)if on a Coles site, [Linfox] must comply with the Coles site rules and regulations notified by Coles to [Linfox];
(ii)[Linfox]’s driver must assist to unload pallets from the driver’s vehicle and place the pallets into the position requested by Coles’ employees; and
(iii)[Linfox]’s driver must assist to roll cages off the [Linfox]’s vehicle and into the position requested by Coles’ employees. (emphasis added)
A series of photographs and instructions contained in the safe working procedure (four of which are depicted above) demonstrated to Linfox employees the manner in which roll cages were to be removed from the rear of the truck by the use of an EPJ. It is clear from that document that the unloading task (and all that it entails) was to be undertaken by a Linfox employee – in particular, the removal of the goods from the truck onto the ground and then into the store.
This document is consistent with the contents of clause 2(f) of the schedule to the Transport Agreement relating to loading and unloading.
There is no suggestion in the safe working procedure that the task of unloading the truck was be performed by anyone other than the driver. It is also clear, as the photographs within the document show, that an EPJ was to be used by the Linfox driver in this unloading operation.
The process set out in both 2(f) of the schedule of the Transport Agreement and the safe working procedure was generally consistent with the practice described by Mr Field and Ms Zealley. Mr Field said that the roll cages would invariably be removed from the rear of the truck by an EPJ operated by the driver and then taken into the store by the driver. Ms Zealley had a slightly different view of no real consequence to this case. She agreed that the roll cages were unloaded solely by the driver, but on occasions Liquorland staff would assist in bringing the roll cages into the store.[31]
[31]T90.
Ms Zealley said that prior to the accident she had no need to get onto the back of the truck to assist in the unloading as this was the driver’s role.[32] She also said that she had not seen any fellow worker get onto the truck prior to the accident. Mr Field confirmed this account.
[32]T91, T96, T138 and T383.
Linfox asserted (contrary to its own safe work procedure) that the primary responsibility for the unloading process was with Coles. It relied upon a review of Casey Central, carried out by Mr Peter Barnes, on behalf of the Group, in October 2007 (Barnes Review).[33] The following part of the Barnes Review was relied upon by counsel for Linfox:
[33]LF6.
Scope
The application of the review tool is for the purposes of identifying traffic hazards and developing risk mitigation interventions for the process of receiving stock.
For the purposes of this review, the receiving process comprises the activities involved in the following:
· Arrival of a truck at the designated receiving area. If the route to the receiving area is a public carriageway, it is excluded from the review (although some recommendations may be made at the discretion of the reviewer). If the route to the receiving area is on Coles Liquor Group controlled land, then it forms part of the review.
· Unloading stock from the truck (which may or may not involve the use of powered mobile plant “PMP”) in the receiving area. Whilst the route to the receiving area may not be under the management control of Coles Liquor Group, the activity of unloading the truck is considered as being under the management control of Coles Liquor Group, even if this is carried out on public land. In effect, Coles Liquor Group is managing the activity and any risks created by that activity and is responsible for controlling these risks as so far as is reasonably practicable.
· Moving stock from the receiving area to the Coles Liquor Group stock room.
I do not accept that this document should, in some way, displace the overwhelming thrust of the evidence to the contrary – that the unloading operation was solely the responsibility of Linfox. I note that the review was not directed towards the actual process of unloading the truck but rather to identify traffic hazards. Moreover, it is simply a statement of opinion of Mr Barnes. That opinion as to the level of actual control exercised by Liquorland does not accord with the terms of the Transport Agreement or the safe working procedure, as well as the evidence of the two Liquorland employees primarily associated with unloading operations at Casey Central.
The Barnes Review can be safely ignored for the purpose of determining responsibility for the unloading operations.
Events on the day of the accident
Ms Zealley, Mr Field and Mr Ord gave evidence as the circumstances of the accident and its aftermath. An incident report prepared by Mr Ord and Mr Field a few hours after the accident and an investigation into the accident completed by Ms Polak were also tendered.
In the early morning of 22 July 2008, David Loran, an employee of Linfox, conveyed a delivery in a Linfox covered tray truck to Casey Central from the Somerton Distribution Centre. The truck, which contained approximately 18 roll cages stacked with liquor cartons, arrived at Casey Central at about 8.00am. It was conceded by Linfox that Mr Loran was:
· inexperienced and incompetent;
· did not know how to operate the device which lowered the tailgate off the truck;
· was not prepared to use the EPJ to effect the removal of the roll cages from the truck; and
· was of no real use in relation to the unloading of the truck.[34]
[34]Each of the these matters was conceded by counsel for Linfox and is consistent with the evidence of Ms Zealley and Mr Field, as well as the record of interview (Exhibit LL1).
It was also accepted that the truck driven by Mr Loran containing the roll cages did not have a lip on the tailgate which would prevent a roll cage from moving off the tailgate.[35]
[35]T554.
In addition the following was not in issue:
· The unloading process was underway when Ms Zealley was injured.
· Ms Zealley was on the truck with the purpose of assisting Mr Loran.
· Ms Zealley suffered her injury when she was handling a roll cage whilst on the rear of the truck.
· Mr Ord was present at the store that morning.
· No instruction was given by either Mr Ord or Mr Field (her two superiors) that she was not to assist in the unloading of the truck.
Ms Zealley confirmed that the driver, Mr Loran, was inexperienced and did not know how to operate the tailgate or how to use an EPJ.[36] Ms Zealley said that she was watching the unloading of the roll cages in the company of Mr Ord and Mr Field. Of her own volition, she jumped on to the rear of the truck to assist Mr Loran.[37] On her account, Mr Loran passed the roll cages to her; she would then stand and hold the roll cage, which was lowered to the ground on the tailgate where Mr Field assisted her to take it to the store.[38]
[36]The exception was Linfox’s challenge to Ms Zealley’s account of how the roll cage was delivered to her by Mr Loran.
[37]T96.
[38]T97.
Ms Zealley had carried out this exercise on two occasions without incident before the fateful dispatch. She said as follows of this event:
OK. I was – done our second one, I had gone back up. One foot in the truck, one foot on the tray, as normal. I was facing this way. The truck driver was obviously getting out next roll cage and I just saw something go past my face and I just put my hands out and perfect timing, I grabbed it and I didn’t move, I actually – I stopped it. So yes my feet didn’t even move, to be honest. So I straight out caught it. I felt two little pops in my back, yes, and we continued on.[39]
[39]T99.
Ms Zealley had no warning of the roll cage’s release. The speed at which the roll cage was moving increased and, was going to roll straight past Ms Zealley unless she restrained it. [40] She said ‘I didn’t even know it was coming’.[41]
[40]T411.
[41]T100.
On Ms Zealley’s account, both Mr Field and Mr Ord were at all relevant times on the ground;[42] indeed, it was Ms Zealley’s opinion that if she had not restrained the roll cage it would have crushed Mr Field, who was on the ground adjacent to where she was standing.[43]
[42]T100.
[43]T100.
Ms Zealley said that Mr Ord was taking photographs or a video on his mobile phone,[44] but later in cross-examination said that she could only assume that he was taking photographs or a video because he had a phone out.
[44]T97.
Mr Field was working in the store. He was aware of the arrival of the truck and went outside to obtain the paperwork. After returning inside he became concerned that the roll cages had not appeared and again went outside and had a discussion with the driver:
So what did you do then? - - - I walked out, fully outside and around the corner to where the truck was situated and that is when I saw the driver at the side of the truck mumbling something to himself and I sort of walked up to get him and sort of said, you, ‘Hey, what’s going on?’ and that’s when he asked did I know how to get the tailgate to work, how to get the tailgate from underneath the truck up to the back of the truck…
What did you tell him? - - - I just said, ‘No, I don’t know how to use it. Don’t you?’ I made that comment and I walked back inside to see Gary.
Both Gary and Michelle had remained back in the store? - - - Yes. I think at this stage Michelle hasn’t even started her shift, she wasn’t there. The load turned up about 8 am and Michelle wouldn’t have been due to start until 9 am, so it was just Gary and myself at that point… I made a comment to Gary that, you know, ‘if this is the best Linfox can send, God help us’ and I was shaking my head when I said that to Gary.
What did you find or see or discuss when you went back out? - - - I saw that the driver had managed to work out how to get the tailgate up and at this point he had the tailgate up and at this point he had the tailgate up and the door open and that’s when he asked ‘how do we get the cages down?’ [45]
[45]T438-440.
Mr Field explained the process to Mr Loran who appeared totally unfamiliar with what was required. Mr Field observed that Mr Loran was frustrated by the whole situation and said to him ‘they shouldn’t have given me this truck’.[46] Mr Loran had not been shown how to operate the truck before taking that day’s delivery to Casey Central.[47]
[46]T445.
[47]T446.
Mr Loran asked Mr Field to jump up and hold on to the roll cages on the tailgate while the tailgate was lowered. According to Mr Field, he was on the tailgate during the entire operation. He was not on the ground and was not involved in moving the cages from the tray of the truck to the tailgate.[48]
[48]T447-448 and T476.
Mr Field said that after he and the driver had lowered two or three of the roll cages onto the ground Ms Zealley joined him on the back of the tailgate to assist in steadying the roll cages which were jerking.[49]
[49]T447.
Mr Field described Ms Zealley’s accident as follows:
I think we had 18 cages that day so I am not sure what cage we were on when the incident happened but I was holding on to the cage like we had previously done and by this stage, he was – he wasn’t jerking the tailgate any more. It seemed like it was working, the two of us, [Ms Zealley] and myself, holding on to the roll cage one at a time, it wasn’t jerking and we were getting the cages off quite quickly then. I was holding on to one and he pushed another one out from the back of the truck. Now, I did not see it initially because the way I was looking, I wasn’t watching, but I think whether he thought Michelle was going to take a second one with her or – I am not 100 per cent sure but he pushed it off and it started rolling towards us. [Ms Zealley] saw it and you have met [her]. She is quite small. She just put her body forth to stop it and shouted something to the driver which got my attention so I could turn around I just sort of saw the roll cage, [Ms Zealley] had stopped it like that (indicates) and then it still hit me slightly in the chest.[50]
[50]T450-451.
Mr Field was not immediately aware that anything untoward had occurred when Ms Zealley endeavoured to restrain the roll cage and they continued the unloading operation until it was concluded. Ms Zealley then went outside to have a smoke. Mr Field then received a phone call from Ms Zealley. She said ‘help my back has gone into spasms. I can’t get up. I can’t move’.[51] Mr Ord and Mr Field went out together and brought Ms Zealley into the store and she was taken to ‘Injury Care’ – a local doctor.[52]
[51]T504.
[52]T531.
The cross-examination of Mr Field had two fundamental themes. First, the inconsistency with Ms Zealley’s account that she was on the back of the truck alone. Second, that Mr Field’s description of the events immediately preceding Ms Zealley’s injury was so precise that it led to a series of glaring improbabilities particularly in relation to the movements of the roll cage immediately prior to the accident.
In cross-examination Mr Field said as to the happening of the accident that Ms Zealley ‘just sort of grabbed up the corner, yes. Even though she put her weight into it, it still moved her that little bit and that is the part that ultimately hit me in the chest.’[53]
[53]T452-453.
Counsel for Linfox put to Mr Field that the phrase ‘at the bottom’ in the incident report meant that Mr Field was on the ground. Mr Field said it referred to the rear of the truck – the tailgate. He was certain he was not on the ground but on the tailgate.[54]
[54]T510, see [56] below.
Finally, I should refer to the evidence of Mr Ord. He swore that he did not witness the accident[55] nor did he take any photos or a video of it.[56] He went on to say that he would have stopped this form of unloading if he had observed it.[57]
[55]T279.
[56]T280.
[57]T296.
Investigations of the accident and recommendations
On the day of the accident Mr Field, with limited input from Mr Ord, completed a report which read as follows:
TRUCK DELIVERING LOAD WITH A VERY INEXPERIENCED DRIVER WHO DIDN’T KNOW HOW TO UNLOAD ROLL CAGES PROPERLY. MICHELLE HAD TO HELP WITH THE UNLOADING OF ROLL CAGES TO STOP THEM FROM ROLLING OF THE BACK OF THE TRUCK, AS A RESULT MICHELL HAS HURT HER BACK AND IS KNOW HAVING BACK SPASIMS, ASLO [Mr Field] HAS SLIGHTLY AGROVATED HIS PREVIOUS CHEST INJURY AS HE HE WAS AT THE BOTTOM OF THE TRUCK HELPING MICHELLE SO ROLL CAGES WOULDN’T FALL OR TIP OVER
The driver did not use the [EPJ] that was in his truck due to him believing the tailgate on the truck would not hold the weight of the roll cages and [EPJ]. [sic][58]
[58]Incident report dated 22 July 2008 (Exhibit LL4).
Ms Polak had the responsibility of managing OHS matters involving the Liquorland stores and carried out an investigation of the circumstances of Ms Zealley’s accident.[59] Her report was completed after she interviewed a number of Liquorland employees. Both her name and that of Mr Ord appear on the report, although it is clear that Ms Polak was leading the investigation; indeed, Mr Ord had no recollection of any involvement in this exercise.[60]
[59]Investigation of Ms Zealley’s accident conducted in July/August 2008 (Exhibit LF2)..
[60]T281.
The following summary in the report is generally consistent with the accounts of Ms Zealley and Mr Field:
DC stock delivery via tailgate vehicle. Delivery driver was not competent in the use of an electric pallet jack (EPJ) to unload roll cages. The store team members assisted to unload the roll cages by standing on the tailgate and holding the roll cages. A team member injured her back as she stopped a roll cage rolling off the tailgate as the tailgate lowered…
Store Manager (Chris Field) and Michelle Zealley went out to the delivery area to assist
The delivery driver (David Loran) started to unload the vehicle by lowering the tailgate and attempting to use the EPJ.
The driver stated he had not used a tailgate before and was not comfortable in using the EPJ on the tailgate to unload and so did not want to use it
Michelle Zealley offered to assist the driver to unload and stood on the tailgate.
The driver unloaded 1 cage onto the tailgate.
Michelle Zealley stood on the tailgate and held the roll cage as the tailgate was lowered. Chris Field stood at the bottom of the tailgate to guide the cages as they rolled off.
The roll cage started to roll sideways off the tailgate and Michelle stopped its movement.
The roll cage continued to be unloaded.[61]
[61]Investigation of Ms Zealley’s accident conducted in July/August 2008 (Exhibit LF2).
In her oral evidence, Ms Polak confirmed what was also contained in the report: a Coles team member should not have been standing on the back of a tailgate holding a roll cage.[62] Ms Polak went on to say that this was the first time she became aware that team members were standing on tailgates, adding, ‘it was definitely of concern.’[63]
[62]T167.
[63]T165.
Subsequent to the completion of the investigation report, Ms Polak arranged for a document to be provided to all Victorian Coles liquor stores in August 2008 – described as a ‘Coles Liquor Safety Siren’[64] which set out the delivery protocol for staff:
[64]Exhibit LF8.
Tailgate Deliveries
·All drivers must use an electric pallet jack to unload roll cages/pallets via a tailgate
·Team members are not to assist with the unloading of any stock
oTeam members must never stand on a tailgate or enter the back of a truck
oTeam members must stand at least 3 metres away from a tailgate whilst driver is unloading
oTeam members must wait until cages/pallets are unloaded off the tailgate before moving them into the store (Team members are not to assist with guiding cages as they are rolled off the tailgate)
All Deliveries
·Stock height:
oPallets should be 1.6m high maximum
oRoll cages should be stacked below the “safety info plate” – 1.6m approx.
·The middle shelf must not be used for stacking any stock
To ensure that safety issues associated with the delivery process are followed up correctly, all sites are to follow the contractor management process
·If a site manager believes a contractor (driver) is working in an unsafe manner they should raise this concern immediately and try to resolve the issue. If the issue can not be resolved at the time by talking to the contractor a Corrective Action Report (CAR) is to be completed as per the process below.
·Issues associated with height or stacking of stock should also be raised by following the process below[65]
[65]Coles Liquor Safety Siren (Exhibit LF3) (original emphasis).
Ms Polak gave evidence as to each of these requirements. In particular, she said that the purpose of this instruction was clear: ‘We did not want team members assisting to take any stock from a truck until it was off the truck’.[66]
[66]T167.
I should mention the contents of an email of a Mr Leigh Murphy (apparently of Liquorland) of 22 July 2008.[67] In that document, it was opined by Mr Murphy that the stacking of the stock on the middle shelf in the roll cage may have contributed to the accident. It is not at all clear as to how Mr Murphy reached this conclusion. There is no evidence that the roll cage was, in fact, half-loaded or in some way unstable. The evidence of Ms Zealley, which I accept, was that the cage was complete in the sense that it was at full stack[68] and was vertical when it was delivered to her.[69]
[67]Exhibit LF5.
[68]T102.
[69]T385.
As to Linfox’s response, Ms Polak noted in her report (and confirmed somewhat equivocally in her evidence) that subsequent to Ms Zealley’s accident Linfox had reviewed its training program and had implemented a ‘buddy’ system to assist a driver on their first day, had re-trained all of its drivers and had sent out a ‘safety toolbox’, similar to the ‘safety siren’ sent out by Coles.[70] No evidence was led by Linfox to contradict Ms Polak’s account.
[70]T172-173.
Findings of fact relevant to the accident
The evidence of Ms Zealley and Mr Field, both honest witnesses, demonstrates how perceptions of an event can differ, particularly with the passage of time.
The major discrepancy relevant to the question of liability between Ms Zealley and Mr Field related to Mr Field’s location during the unloading operation at the time of Ms Zealley’s accident. Ms Zealley said he was on the ground throughout; Mr Field said he was on the truck during the whole operation.
There are other relatively minor differences such as:
(a)whether Ms Zealley participated in the full unloading process or only ascended onto the truck after a few roll cages had been lowered to the ground; and
(b)whether Mr Ord was present and, if so, whether he took any photos of the accident.[71]
[71]T497.
Although I do not regard it as fundamental to my findings as to the happening of the accident and the responsibility of the various parties I think it necessary to resolve, as best I can, the conflicts in the testimony of Mr Field and Ms Zealley as to their respective positions. At the outset, I note that both were honest and credible witnesses. Neither, in my opinion, was deliberately endeavouring to paint an untrue picture. To the contrary, I thought both did their absolute best to recount events which occurred over six years prior to them giving evidence.
Having said that, I think that the evidence of Mr Field on the conflicting parts of the evidence is to be preferred over Ms Zealley. He was a particularly articulate and seemingly plausible witness. Although he is still employed by a Coles related company I discerned no bias in his evidence of any sort. Moreover, he was the person who immediately investigated the circumstances of the accident and completed the initial incident report.
Contrary to the submission made by counsel for Linfox, I think that the reference to Mr Field being ‘at the bottom of the truck helping Michelle so roll cages wouldn’t fall or tip over’ (contained in the incident report) is consistent with Mr Field being on the back of the truck (rather than on the ground) and carrying out his part of the unloading operation in conjunction with Ms Zealley. Moreover, I can see no reason as to why Mr Field would have any motive to misdescribe his position. On the other hand, this accident and its effects have taken a dreadful toll on Ms Zealley and I think it fair to assume that her recollection of the events of that day may now be diminished.
Mr Field was cross-examined at considerable length and with great skill by counsel for Linfox. Whilst I accept that his precise account of his position on the rear of the tailgate and that of Ms Zealley may have an element of reconstruction in it, that comment in no way affects my assessment of his overall reliability as a witness.
In summary, I accept that Mr Field was on the truck, and in conjunction with Ms Zealley, was assisting in the unloading of the truck. Whether Ms Zealley was on the rear of the truck for the whole or part of the operation is immaterial to my conclusion.
As to the role of Mr Ord, I am not satisfied that he was outside watching the unloading operation at the time of the accident and, it follows, either videoing or photographing it. He denies any such involvement, and the evidence of Mr Field is that he was only outside for a very short period of time.[72] I suspect that Ms Zealley has convinced herself that Mr Ord’s role was greater on the day than it was in reality. I should add that in terms of Liquorland’s responsibility, whether Mr Ord was present or not makes little practical difference. Mr Field was Ms Zealley’s direct supervisor and had the power to stop the process or, alternatively, instruct Ms Zealley not to mount the truck.
[72]T495-496.
Responsibility of Liquorland and Linfox for the accident
I have reached the following conclusions as to the occurrence of the accident and the roles played by the respective parties.
First, the evidence of Mr Field satisfies me that both he and Ms Zealley were standing on the rear of the truck assisting Mr Loran in the unloading of the roll cages. It is undisputed that Ms Zealley had at the time of the accident been engaged in the process for at least a short time. It matters not whether Ms Zealley had been there for the whole process or only part of it. What is significant is that for some time Ms Zealley had been on the back of the truck assisting Mr Loran. Whilst, as I have discussed, the evidence in regards to their exact positions on the rear of the truck is divergent, I do not think that much turns on this. Even accepting that Mr Field’s account smacks of some degree of reconstruction when looked at in the generality, it tallies with that of Ms Zealley.
Second, the fundamental cause of this accident was the ineptitude of Mr Loran who was not given sufficient training and was incompetent in carrying out the task of unloading the roll cages. If an experienced, or properly trained driver, had been sent by Linfox to Casey Central then there would have been no need for either Mr Field or Ms Zealley to have been placed in a position of danger at the rear of the truck. In normal circumstances, neither would have ventured onto the truck and the unloading operation would have been conducted in accordance with the Transport Agreement and the safe working procedure, entirely by the Linfox driver. I accept that this was a most unusual arrangement and neither Mr Field nor Ms Zealley would normally have taken up a position on the rear of the truck. The only reason for Ms Zealley (and for that matter Mr Field) being placed in a situation of some danger was the ineptitude of Mr Loran. The steps taken by Linfox after the accident as described by Ms Polak, including the provision of a buddy system on first deliveries and improved training, should have been undertaken earlier.
Third, the Linfox truck did not have a lip on the tailgate. This would have provided a means to stop the roll cage and, at least arguably, would have avoided the necessity of Ms Zealley attempting to restrain it.
Fourth, both Ms Zealley and Mr Field said that the roll cage was despatched to Ms Zealley without warning, and it was the sudden arrival of the roll cage that led to her injury while endeavouring to restrain it. Whilst there is force in the criticism made of this account (it is not specifically referred to in the notice of contribution or its particulars; it does not appear in Ms Zealley’s statement made shortly after the accident), both were compelling witnesses on this point. It cannot be disputed that Ms Zealley’s task was, as described in the accident report by Mr Field on the day, to stop the roll cages from rolling off the back of the truck. If the roll cage had, in effect, been handed over to Ms Zealley in a controlled way then, it seems to me, unlikely that the accident could have occurred. Rather, her description of the accident, and that of Mr Field, is consistent with the roll cage unexpectedly arriving in her vicinity, with the clear risk that it may have ended up falling onto the ground. Even accepting a level of reconstruction in some of Mr Field’s detail, particularly in relation to the pace of the roll cage, it was its unexpected despatch by Mr Loran to Ms Zealley that precipitated this accident. Each was adamant about its unanticipated arrival – and I accept their evidence on this point. Critically, Mr Loran, who could have disputed the account of Mr Field and Ms Zealley, was not called. It follows, in accordance with the principles in Jones v Dunkel, that I am able to accept the evidence of these two witnesses with greater confidence – which I do.
Fifth, Ms Zealley was simply carrying out what she perceived to be her job at the time of the accident. Her desire was to ensure, in her employer’s interests, that the goods were not damaged and were conveyed to the store safely. Neither Mr Ord nor Mr Field gave her any instruction concerning the risks associated with the task she was to carry out. Mr Ord accepted in cross-examination that roll cages could be dangerous and could get away.[73] If he had observed a scenario such as that engaged in by Ms Zealley, he would have told her to get off the truck. Similarly, he would have given such an instruction to Mr Field as it was ‘dangerous.’[74] Coles should have ensured that there were specific instructions given to employees not to get on the truck. Mr Field should have instructed Ms Zealley not to get on the truck. The instructions given in the safety siren, published shortly after the accident, as to the appropriate system for the unloading of the truck should have been provided prior to the accident. Those instructions should have been circulated to all staff members involved in the loading and unloading of trucks.
[73]T295.
[74]T295.
Finally, I should mention the use of the roll cage. I reject Linfox’s submission that the roll cage or the roll cage system were inadequate. There is no reliable evidence that the roll cage itself was defective or incorrectly stacked and neither Mr Field nor Ms Zealley who handled the roll cages on the day perceived any problem. There would not have been any difficulty with the use of roll cages if a competent employee had been provided by Linfox.
The claim against Liquorland in relation to Ms Zealley’s return-to-work program
I have set out at paragraph [9] the allegations made by Linfox against Liquorland in relation to its liability for damage to Ms Zealley as a result of its management of her return-to-work program. Reduced to its bare minimum, the allegation is that Liquorland failed to adequately manage Ms Zealley’s return-to-work program between 30 July 2008 and 27 November 2009 (when her employment was terminated). Particularly, it is said that Liquorland ignored the medical limitations imposed by Ms Zealley’s general practitioner and its consultant physician and that this has contributed to the damage to her back and psyche.
There are a couple of matters that should be addressed before turning to the facts underpinning these allegations.
First, it was the responsibility of Liquorland, as Ms Zealley’s employer, to ensure that there was compliance with the advice of the medical practitioners as to her capacity to carry out work. Although, at an administration level, her return-to-work was managed out of the Coles Tooronga head office and perhaps by employees of other Coles companies, to use the vernacular, ‘the buck stopped with Liquorland’ and, more specifically, with Casey Central.
Second, the two managers with direct responsibility for ensuring that Ms Zealley did not work beyond her certified limitations were Mr Field, her direct supervisor, and Mr Ord (Mr Field’s supervisor), who attended Casey Central regularly.
The return-to-work arrangements
Ms Zealley saw her local doctor, Dr Kourdoulos, on the day of the accident complaining of back pain and was certified unfit for any duties for one week. She returned to work on 30 July 2008 with certified restrictions of reduced hours and restricted duties (eg no lifting over two kilograms, no working below waist height/above shoulder height, vary sitting and standing and rest as needed). Dr Kourdoulos continued to provide certificates with varying restrictions, throughout 2008 and 2009.
Mr Jonathan Hooper, an orthopaedic surgeon, examined Ms Zealley on behalf of Coles in October 2008 and in 2009 and reported to it concerning Ms Zealley’s work capacity. However there was little evidence about how, if at all, his reports were used in preparing the return-to-work plans.
Mr Field was responsible for Ms Zealley’s return-to-work. He explained the system as follows: her Workcover certificates of capacity would be sent to the ‘back to work officer’ (a Coles employee) at Coles’ head office. From that, a return-to-work plan would be prepared, which set out Ms Zealley’s work and time restrictions for a particular period, and that would be sent to Mr Field.[75] Mr Field said that it was his responsibility to implement the return-to-work plan and to ensure Ms Zealley was not doing anything beyond the restrictions imposed by the medical certificates.[76]
[75]T520-521.
[76]T462.
It is also necessary to mention the role of Mr Ord, the Network Store Manager, during Ms Zealley’s return-to-work. As I stated earlier, Mr Ord was at Casey Central regularly. Mr Field, whose evidence I accept, saw Mr Ord most days he was at the store.[77] He said ‘[Mr Ord] might come in and do a couple of quick emails and then go off to do store visits and sometimes he might be based there for half a day’.[78] In Mr Field’s absence, Mr Ord was Ms Zealley’s superior, but Mr Ord had nothing to do with the day-to-day running of the store (eg rostering).[79] Based on the evidence of the primary actors it appears that if Mr Ord were there, he might involve himself if he felt it was necessary.
[77]T470.
[78]T471.
[79]T421 and T303.
Mr Field said that Ms Zealley worked with him two or three days of the week, but for the rest of the week they worked separately.[80] He said, and I accept, that during the time they worked together, he did his best to make sure the work was not too much for her[81] and never asked her to do anything outside her work restrictions. [82] He explained:
… because I was working with her, I was aware of what she couldn’t [sic] and couldn’t do.
You chipped in and helped whenever you could? - - - Well, yes, I took more of that type of role on, yes, and – myself and other team members. It wasn’t all me.[83]
[80]T464.
[81]T523.
[82]T465.
[83]T523
Ms Zealley confirmed that Ms Field was considerate and looked out for her.[84]
[84]T395.
Ms Zealley’s work and medical restrictions between September 2008 and November 2009
Over time Ms Zealley’s condition improved. The certificates issued by Dr Kourdoulos increased her hours gradually and her lifting restrictions were eased. By 5 September Ms Zealley’s work hours had increased to six hours per day and her lifting capacity was upgraded to 8 kilograms.[85]
By [September], the pain was less and getting less day by day? - - - Yes. I will give you that one.
The range of movement was getting better day by day? - - - Yes. If someone had asked you, say early September, how the back was, compared to how it was immediately after the truck accident, you would have said a lot better? - - - Yes.
[85]Certificate dated 5 September 2008 T241.
By 22 September she had returned to full-time duties with a lifting restriction of 12 kilograms.[86] Ms Zealley had ‘pushed’ to be returned to full time duties.[87]
[86]T240.
[87]T401.
On her first day of full-time duties she suffered her first (of what would be many) exacerbations of her back condition. She had been on normal duties for three hours, when she moved a case of Heineken causing her back to flare-up (Heineken incident).[88] She said ‘my back went the same way as I grabbed the roll cage. It just went ‘pop, pop’ and I was done’.[89] ‘[I]t wasn’t the first [case] she had moved that day.[90] Dr Kourdoulos reimposed restrictions on Ms Zealley’s work capacity similar to those imposed on 22 July 2008.
[88]T109.
[89]T389.
[90]T389.
Ms Zealley’s back improved again, her hours gradually increased and her lifting restrictions eased. Once more, on 21 November 2008, Dr Kourdoulos certified her fit for normal duties.[91] Then, on 2 January 2009, Ms Zealley suffered the second exacerbation of her back injury as a result of pushing a roll cage up a slope (the pushing incident).[92] She was again placed back on restrictions by Dr Kourdoulos.
[91]T224.
[92]T388.
This pattern continued throughout 2009.[93] It is not necessary to go through each instance save to say that Ms Zealley’s hours and duties would increase and then she would suffer another flare-up leading to work restrictions. Those restrictions would ease as she improved, until another flare-up (either at work or at home) would see more restrictions. Some flare-ups were caused by trivial incidents. One example is that in late March 2009 she reached for a packet of cigarettes while serving a customer and suffered a flare-up.[94] She was placed on restricted duties, eventually cleared for normal duties on 22 April 2009,[95] but sustained another flare-up on 22 June when she grabbed a trolley whilst unloading beer, which saw her placed back on restricted duties.[96]
[93]T110 and T402.
[94]T249.
[95]T243.
[96]T251.
After the Heineken incident, Ms Zealley said her back pain for a while returned to a level just after the truck accident.[97] However, ultimately, as a result of the flare-ups during the return-to-work period until her termination, Ms Zealley’s back condition generally worsened.[98] When asked by counsel about the effect of her symptoms after a flare-up, compared with them after the accident she said:
No, worse, because every time – from the truck, if my back went it was doing something, sweeping the floor or bending over. Once I went to go and get a packet of smokes to sell to a customer. So each time it was something less and less and less.[99]
[97]T419.
[98]T419.
[99]T110 (emphasis added).
She also said:
You answer was the back wasn’t getting any better. Was it getting any worse over that period? - - - Yes.
To what extent? Are you able to put a figure on it? Was it getting a little bit worse, a lot worse? - - - It was getting – how can I explain this? It was getting worse. Plain and simple, it was getting worse. It was getting where – unload five pallets of beer a day, not a problem. Hurt back, go do mundane things, sweep the floor back goes. Got [sic] to the toilet, get off the toilet, back goes. Getting worse.[100]
[100]T419 (emphasis added).
The medical evidence establishes that Ms Zealley experienced some fresh symptoms as a result of the flare-ups. After the pushing incident on 2 January 2009, Dr Kourdoulos reported that she was experiencing pain in her ‘right thoracic/lumbar spine’.[101] The doctor agreed with counsel for Linfox that prior to the pushing incident she had not complained of thoracic spinal pain but that since the incident it was ongoing.[102]
[101]T248.
[102]T249.
In March 2009, Ms Zealley’s back pain and inability to work her full duties led to her becoming depressed[103] and she was referred to a psychologist, Ms McDonald who she saw throughout her return-to-work period and continues to see her. Ms McDonald was of the view that Ms Zealley’s psychological problems were exacerbated by her return-to-work duties including those beyond her stated capacity in the medical certificates. [104]
[103]T111-112.
[104]T352.
Dr Kourdoulos noted that Ms Zealley was complaining of right sided pain during 2009. Mr Hooper noted in his report of 15 July 2009 that she had developed complaints of right sided sciatica.[105] He also said:
I think when she does get back to work she will need to continue doing light duties and I think it would be inappropriate for her to return to work that involves bending and lifting.
I think that her prognosis is excellent and, as pointed out, she said she is taking longer to settle down following the flare of her back condition than in the past.[106]
[105]Report of Jonathan Hooper dated 15 July 2009 (Exhibit WF5).
[106]Report of Jonathan Hooper dated 15 July 2009 (Exhibit WF5) (Emphasis added).
In Dr Kourdoulos’ report,[107] he describes the problems in the second half of 2009:
[107]Report of Dr Kourdoulos dated 3 June 2010 (Exhibit WF5).
Progress was slow. She was reviewed on 26/06/09, 02/07/09 and 09/07/09 with minimal change in her symptoms.
On 20/07/09 Ms Zealley started to improve…
On 30/08/09 she returned to work on light duties for 2 hours per day. She continued to struggle with pain and her work duties.
On 07/09/09 her back pain flared after doing house work including mowing her lawn. Examination revealed difficulty walking with a markedly reduced range of movement in her lumbar spine and tenderness of the left lumbar region. She was prescribed analgesia and given time off work.
Ms Zealley returned to light duties working 2 hours per day on 14/09/09 and was reviewed regularly. Her work hours were increased to 4 hours per day on 16/10/09.
On 28/10/09 she told me that she was going to be sacked from work. She was tearful and felt depressed.
On 09/11/09 Ms Zealley complained of an aggravation to her thoracic and lumbar pain. A handle of a door had stuck her back whilst at work 2 days previously. Examination revealed a reduced range of movement of her thoracic spine with tenderness of the right thoracic region … Her work hours were reduced to 2 hours daily. Her restrictions included not to lift, bend or push.
She was reviewed on 16/11/09 and 23/11/09 with little change to her symptoms.[108]
[108]Report of Dr Kourdoulos dated 3 June 2010 (Exhibit WF5).
Dr Kourdoulos did not regard the flare-ups or ‘exacerbations’ as new injuries, but rather saw them as instances of recurrences of pain.[109] I think it is clear from the evidence of Ms Zealley, Dr Kourdoulos and Mr Hooper (whose reports were tendered), all of whom I accept, that Ms Zealley’s condition and pain levels increased (and her recovery time following flare-ups lengthened) following her return-to-work. The question to which I now turn is whether there was any fault on the part of Liquorland in relation to these flare-ups and to what extent these incidents contributed to her overall condition.
Is Liquorland responsible for exacerbating Ms Zealley’s injury due to the return-to-work arrangements?
[109]T265.
Counsel for Linfox contended that Ms Zealley suffered only a minor back injury as a result of the truck accident. He submitted that her back pain (particularly complaints relating to sciatica) and psychological reaction following her return-to-work was due to performing work beyond the restrictions set out in her certificates of capacity.[110] In response, counsel for Liquorland contended that Ms Zealley’s complaints over the period of September 2008 until her termination were the normal sequelae to the back injury sustained in the unloading accident.
[110]T582.
Linfox’s case rests on establishing (a) that Ms Zealley worked beyond her certified limitations and (b) that this was a cause of her ongoing back symptoms and associated depression.
Ms Zealley continued at Casey Central as second in charge when she returned to work after her injury. This meant that when Mr Field was not present, Ms Zealley determined her own distribution of work and was responsible for running the store.[111] She said that when she returned she was basically undertaking ‘the same duties as before’.[112] This involved managerial duties, paperwork, opening the store, ordering stock and taking in of stock.[113] The only change in the way she carried out her duties was that generally she wouldn’t lift as much or as many items.[114]
[111]T420.
[112]T108.
[113]T108.
[114]T108.
The difficulty with the return-to-work arrangement (which I will explain in slightly more detail in a moment) was that while Mr Field could assist Ms Zealley when they worked together, more often than not Mr Field was not present when Ms Zealley was rostered.[115] Mr Field felt that he made arrangements for this:
I mentioned to the other team members what [Ms Zealley] could and couldn’t do and just to make sure she wasn’t left in a position where she might be in the store by herself and gets asked to do a carry out.
[115]T522.
But this, on Ms Zealley’s evidence, which I accept, did not transpire in practice. Ms Zealley said that Casey Central was seriously understaffed; [116] she was not the type of person to leave a job for someone else to do. Ms Zealley was a hard worker[117] and took her responsibility as the acting manager very seriously. In Mr Field’s absence while she might have had the power to ask people to assist her, she did that very rarely. She was not only ‘stubborn’,[118] but stoic which meant she regularly worked beyond her prescribed hours and restrictions to get the job done.[119] Asked why she worked beyond her certificates she said:
Because I didn’t have the staff or I had to do – order. Ordering is obviously when you order merchandising and that’s obviously part of my job as manager and whoever else was on, that’s not their job, they weren’t trained to do that, or I hadn’t trained them to do that. So I had to do that before I left.[120]
[116]T523.
[117]T241.
[118]T421.
[119]T394.
[120]T395.
She explained her rationale as follows:
You are on restrictions…but, you know, if I had to replenish, say, Chivas Regal, which is top shelf, which is obviously a stretching thing, I would replenish the stock on the top shelf. I was - - -
…
Why did you do that work; was there no-one else to do it? - - - I probably could have left it for my staff that night but I am not one to stand around and do nothing.
An example like that would have occurred on many occasions where you – – –? - - - Daily.
Many? - - - Daily.
Where you performed tasks beyond the scope of the certificates? - - - Yes.
Simply because you weren’t going to leave it for someone else on another shift? - - - Yes. You are very correct in that. At the beginning that was a very big guilt on me, as being – leaving – to me, that was a minimal thing, whereas to me, I could easily do it, where my staff at night would have other jobs to entail because I was very pedantic on how I wanted – I say my store – my store left at night. I did come around to that realisation later on, where I would leave those little things, and say, ‘look I’m not doing that.’
For the first eight months or so back on the job, though, it was a real pattern, that you were performing work heavier than the certificate, just because you didn’t want to leave it for someone else to do? - - - Yes, or there was no-one else there to do it.[121] (emphasis added)
[121]T398-T399 (emphasis added).
Ms Zealley said it was more common than not for her to work beyond her restricted hours even when working with Mr Field. [122] Of this, Mr Field said:
I did catch – I wouldn’t say ‘catch’, I don’t think she was doing it deliberately but maybe a customer asked if she could get something off a shelf and [Ms Zealley] would go do it rather than come up to the counter and get me…[123]
[122]T399.
[123]T465.
Ms Zealley’s concern for Casey Central was illustrated when giving evidence about the flare-up incident on 22 June 2009. She said she was not so much worried about her back during this incident but that she ‘was more worried about the store because there was no one there to run it.’[124] Her concern about the chronic understaffing is emphasised by the fact that at one point her son assisted in moving stock for her.[125]
[124]T402.
[125]T423.
There were other instances where she was working beyond her restrictions. On 24 March 2009 she reached for cigarettes and suffered a flare-up to her back. Her evidence was that by reaching she meant above shoulder height because the cigarettes were now hidden.[126] The certificates of capacity at that time restricted her from working above shoulder height.
[126]T264.
Another example was that on the weekend before her employment was terminated, Mr Ord and Mr Field were not at work. She had worked three days in a row for 12 hours each day with only one other staff member assisting her.[127] Her certificates of capacity for this period limited her hours to maximum 2 hours per day.[128]
[127]T113.
[128]Certificates issued 16 November and 23 November 2009(Exhibit LF1).
Ms Zealley was not challenged in relation to the hours and duties she was required to work.
I am satisfied that the consequence of this situation was that when Mr Field was not in the store, Ms Zealley was required to operate the store and work beyond her restrictions. In fact, she said on every occasion that she exacerbated her back, Mr Field was not in the store either because he was on annual leave or he had the day off. [129]
[129]T420.
I accept that Mr Field thought that it should not have been a problem as the roster was meant to ensure that others were available to assist.[130] However, this was not Ms Zealley’s experience. Mr Field knew about her son coming in to assist her, which, given his position as her manager and direct supervisor, should have indicated to him that Ms Zealley was not being supported at work in his absence. [131]
[130]T523.
[131]T524.
Ms Zealley’s complaints are consistent with the evidence of Dr Kourdoulos. In cross-examination by counsel for Linfox, Dr Kourdoulos said that it seemed as if Ms Zealley was required to perform duties which she could not manage.[132] Dr Kourdoulos said that Ms Zealley had reported to him that the work that she was doing was making her symptoms worse [133] Dr Kourdoulos also recalled Ms Zealley telling him that she was being given duties with which she could not cope.[134] Ms Zealley confirmed Dr Kourdoulos’ evidence.[135] Moreover, Mr Hooper had advised Coles on several occasions in 2008 and 2009, that Ms Zealley should not engage in lifting or bending activities.[136]
[132]T251.
[133]T248.
[134]T264.
[135]T394.
[136]Report of Mr Hooper dated 15 July 2009 (Exhibit WF5).
Mr Ord’s role should be mentioned here. He knew that Ms Zealley was on restrictions due to her injury but said he did not watch to see whether she was performing the work in accordance with her certificates.[137] Ms Zealley said that Mr Ord would have witnessed her working on numerous occasions. [138]
[137]T304.
[138]T396.
After the unloading incident, Ms Zealley working relationship with Mr Ord deteriorated. She said:
I didn’t have to ask [Mr Field] for anything. [Mr Field] was more, ‘don’t worry about it, I will do it’, in those terms. [Mr Ord], no. Nothing whatsoever. No ‘I will help you’ or anything. There was nothing. Nothing whatsoever. He was very – from date of injury until the day he – I know he forced me out, he was unsympathetic, uncaring, unkind, rude and very condescending I would say.
Ms Zealley said that when she complained to Mr Ord about the nature of the work she was required to do he did not act.[139]
[139]T395.
Mr Ord has no recollection of Ms Zealley complaining to him that she was not coping.[140] He also said ‘I didn’t see her too often but if I was speaking to [Mr Field], I would ask how she was going and as a general rule, things were fine’.[141] Mr Ord said that if Ms Zealley were struggling, those complaints would have gone to Mr Field, not him.[142]
[140]T305.
[141]T306.
[142]T306.
Eventually, Ms Zealley ‘spat’ it at Mr Ord,[143] who had confronted her about putting her son to work. In Ms Zealley’s words, she told Mr Ord ‘to go jump in a lake’.[144] She told Mr Ord directly that she needed help and could not cope working on her own anymore.[145]
[143]T423.
[144]T397.
[145]T423.
Although he denied it, I have no doubt that Mr Ord was unsympathetic to Ms Zealley’s predicament. His lack of recollection was unimpressive and he appeared to have little concern for the welfare of Ms Zealley. I prefer Ms Zealley’s evidence to that of Mr Ord.
The problem with understaffing at Casey Central appears to have been recognised when a decision was ultimately made to take on another staff member, Bianca. [146] On Mr Field and Ms Zealley’s evidence, it appears that this decision was made, at least partly, for the purpose of assisting Ms Zealley with her duties.[147] Bianca was rostered to assist Ms Zealley when Mr Field was off.[148]
[146]T397.
[147]T422-423 and T465.
[148]T422.
From the time Bianca commenced working at Casey Central, Ms Zealley said that there was less lifting. However, she also insisted that ‘you can’t leave it up to one girl to do it all on her own either’ so she would help her out.[149] Ms Zealley would help until she felt she could not physically assist.
[149]T424.
I accept that a number of the exacerbations of Ms Zealley’s condition were due to her working beyond the limitations imposed by the certificates. Notwithstanding her stoic and stubborn nature both Mr Field and Mr Ord should have taken greater care to ensure that Ms Zealley did not work beyond her restrictions. Liquorland should have had a system of work in place which ensured that she did not work beyond her limitations; it should have done more to relieve the pressure placed on Ms Zealley when she returned, particularly when she was required to manage the store on her own. She should have been provided with more assistance when alone.
Given this conclusion, it is not necessary to traverse the claim based on breach of statutory duty in any detail. The work beyond the certified restrictions constituted a breach of regulation 15 of the Occupational Health and Safety (Manual Handling) Regulations 2007: Liquorland did not ensure that the risk of a musculoskeletal disorder affecting an employee occurring was either eliminated or reduced so far as is practicable – which reduction would have been achieved by the enforcement of the certified restrictions and the provision of appropriate assistance.
However, determining what, if any, long term effect these breaches of duty (common law and statutory) had on Ms Zealley’s overall condition is particularly difficult.
It cannot be resolved by simply stating, as counsel for Linfox did, that her back became worse during the period or that she developed new symptoms. Both developments may have nothing to do with the exacerbations due to her working beyond the limitations imposed in the certificates. For instance they may have been a consequence of the original injury or by a non-tortious exacerbation of her condition. Some of the incidents which caused the flare-ups were relatively minor and could have happened anywhere (and not necessarily at work). Indeed, Ms Zealley said that sweeping the floor and simply bending over could cause a flare-up.[150]
[150]T111.
Ms Zealley was reviewed by a number of consultant medico-legal practitioners including specialist orthopaedic surgeons (Mr Hooper, Mr Troy and Mr Kierce).[151] Mr Hooper noted the aggravating nature of the work but no doctor dealt with the issue of what role, if any, Ms Zealley’s work after her injury played in the development and maintenance of her physical symptoms. Certainly, none provided any opinion specifically directed to those episodes of exacerbation which occurred as a result of her carrying out work beyond her certified limitations.
[151]A list of medical practitioners is contained the s 138 Judgment.
The only medical practitioner to deal specifically with the issue of the contribution of the work exacerbations was Dr Kourdoulos. In cross-examination Dr Kourdoulos acknowledged that Ms Zealley complained that the type of work she was doing was making her symptoms worse,[152] and accepted that from September 2008 onwards her condition generally worsened (or at least her experience of pain did). However he did not say in terms that it was because Ms Zealley was working beyond her specified limitations. Of course it must be borne in mind that at times she was certified fit for most duties.[153]
[152]T248.
[153]September 2008, November 2008 and April 2009.
The high point for Linfox’s argument is a letter to Mr Ord dated 19 November 2009, in which Dr Kourdoulos states that the prognosis for Ms Zealley’s back condition while she performs her tasks at work is poor.[154] He writes ‘Ms Zealley would have a greater working capacity if her work did not primarily involve heavy lifting.’
[154]Letter from Dr Kourdoulos to Mr Ord dated 19 November (Exhibit WF5).
In his viva voce evidence Dr Kourdoulos agreed that the return of Ms Zealley’s symptoms during her return-to-work was as a result of ‘heavier duties’, [155] but it does not follow that those ‘heavier’ duties were necessarily outside Ms Zealley’s specified limitations. This point was made by counsel for Wesfarmers.[156]
Did you understand that she was involved in heavier duties or was it just normal duties, the inherent duties involved in working in a bottle shop that she was exposed to around that time? --- Well, being a bottle shop, duties are heavy anyway. So she was getting better she started doing more of her normal-type duties and then her pain started flaring up again.
[155]T246.
[156]T263.
Dr Kourdoulos did not say in terms that the flare-ups were caused by a breach the limitations set out in the medical certificates he provided. Indeed, in respect of disentangling her condition he said ‘It’s dill [sic]. You can’t proportion how much is due to one thing and how much is due to another thing.’[157] He continued
…she did injure her back, yes. She did have pain, yes. She still has pain, yes. She did develop complications, she had depression, she had these pseudo-seizures, et cetera, which all related to, basically her injuries that she sustained at work. I mean, I don’t think there is any doubt about that. But to say what percentage is due to the injury in July 2008, what proportion is due to the termination, what proportions is due to the flare-ups during the course of her work, no-one knows the answer to that.[158] (Emphasis added)
[157]T266.
[158]T267 (emphasis added).
There is in my view no satisfactory evidence that the exacerbations of Ms Zealley’s back condition caused by her working outside the limitations imposed by the medical certificates made any significant material contribution to her overall physical condition. However I accept that the work carried out by Ms Zealley, outside her limitations, was productive of immediate pain and disability which affected her life and her capacity to work. I am also satisfied, on a more robust basis, that such exacerbations must have made a more than de minimis contribution to her overall condition. However, in the absence of any sound quantification of that contribution, I regard this component as minor.
Accepting the evidence of Ms McDonald it is also clear that in addition to the exacerbations of her physical condition there was also an exacerbation to her psychiatric state caused by the work and, it can be inferred, that work which was beyond her certified limits. The extent to which this contributed to any long term symptoms is unclear.
I reject the submission made by counsel for Linfox that the injury resulting from the unloading accident was ‘minor and of no real moment’ with no organic basis. He argued that it was the subsequent work and termination that produced her back pain and more significant psychological condition. Whilst it may be accepted that as time has passed the psychological component has become more significant, the original injury to the back was of some magnitude and produced ongoing back symptoms as Dr Kourdoulos said. I need only to refer to the reports of Mr Hooper who saw Ms Zealley in 2008, 2009 and 2010. He diagnosed low back strain with exacerbations of back spasms while back at work. In July 2009 he noted right-sided sciatica referable to the back injury and said that he pain was discogenic. In his final report of March 2010, he said:[159]
[159]Report of Mr Hooper dated 20 March 2010.
(a) This woman strained her back whilst working at Liquorland in 2008. She has continued to complain of some back discomfort and leg pain.
(b) The clinical diagnosis is discogenic low back pain.
(c) The diagnosis is consistent with the cause.
(d) The condition has not resolved. I believe she will continue to complain of low back discomfort and may have difficulty getting back to work that involved bending and lifting.
(e) It is unlikely that she will make a full recovery or be without back discomfort.
(f) The treatment she is having at the present time is chiropractic treatment and this is not necessarily appropriate.
…
(i) She would be capable of doing suitable light work once her neurological problems are sorted out.
(j) it would be unwise if she returned to work involving bending and lifting activities and is better placed doing lighter work.
(k) The other factors that are impacting on her returning to work and rehabilitation are her neurological problems and the seizures she has had.
In addition, each of the psychiatrist (medico-legal and treating), whose opinions are summarised in the s 138 judgment, accepted that the psychiatric condition was related to the back condition caused by the unloading accident.
In summary, I am satisfied that the work that Ms Zealley undertook contrary to the limitations imposed by the medical practitioners made a material contribution to her back injury and her associated depression, although as best I can determine the impact of this exacerbation in the scheme of things was minor.
Is Liquorland liable for any and if so what damage suffered by Ms Zealley
In relation to the unloading accident, I am satisfied for the reasons set out at [78] that Liquorland breached its duty to Ms Zealley and is liable for the damage suffered by her.
I am also satisfied, for the reasons set out at [102] to [137], that Liquorland breached its duty to Ms Zealley in relation to its management of her return-to-work program and that this resulted in damage to her, although of a minor nature.
Is Linfox liable for any and if so what damage suffered by Ms Zealley
For the reasons that I have set out at paragraphs [73] to [77], I am satisfied that Linfox is liable for the damage sustained by Ms Zealley.
Assessment of contribution between Liquorland and Linfox
Liquorland’s claim for contribution brought under Part IV of the Wrongs Act requires a determination of what is ‘just and equitable having regard to the extent of that person’s responsibility for the damage’.[160]
[160]Section 24(2) of the Wrongs Act, see [10]-[11] above. It is not necessary to refer to any other of the provisions of the Wrongs Act.
In apportioning responsibility, a court is required to look at the respective roles of the defendants in terms of the culpability for the plaintiff’s damage and the causal potency of the acts or omissions which resulted in the injury.
In determining what is just and equitable contribution under the statutory provision it is established that there are two relevant considerations:
(a)the degree to which each of the parties has departed from the standard of conduct required of them; and
(b)the relative causal potency of each of the defendant’s acts in relation to the injuries sustained by Ms Zealley.[161]
[161]See Papadopoulos v MC Labour & anor (No 4) [2009] 24 VR 665 (Papadopoulos), [76]-[77].
It is also accepted that in analysing the relevant factors the Court must eschew the application of a formulaically mathematical approach. As Beach J put it in Papadopoulos:
Questions of apportionment involve questions of balance and relative emphasis. They involve the weighing of different considerations. Value judgments upon which reasonable minds might differ are involved. Some of these do not readily admit of articulation.[162]
[162]Papadopoulos, [79]. See also Esso Australia Ltd v VWA (2000) 1 VR 246 at 253-254.
My findings appear at [64] to [79]. I am satisfied that Linfox should bear the lion’s share of responsibility for the injuries sustained in the unloading accident. Its acts and omissions were both greater in culpability and causal potency than those of Liquorland. Not only did it send an inexperienced and incompetent employee to carry out a difficult task without adequate training but it, in effect, left him in the lurch when he arrived at Casey Central. There was no realistic prospect of Mr Loran, who was unfamiliar with the truck and the unloading process, carrying out the task on his own. The inevitability was that he would need help, and that lack of training or assistance would place the Liquorland employees in danger. In addition, it was his action in releasing the roll cage without warning that precipitated Ms Zealley’s injury.
Liquorland, as the employer, owed a non-delegable duty of care to Ms Zealley. Liquorland breached that duty by permitting Ms Zealley to work on the back of the Linfox truck in a situation of potential danger. However I regard this breach to be of less significance than the multiple breaches of Linfox. In relation to the unloading accident, I would apportion responsibility 65/35 against Linfox.
I am satisfied that the negligence of Liquorland in the management of Ms Zealley’s return-to-work program should result in a minor adjustment to the apportionment between the two defendants. The adjustment must be small for two reasons: first, culpability - whilst there should have been better management of Ms Zealley’s return-to-work program it was not a significant breach of duty, and certainly nowhere near as egregious as Linfox’s responsibility for the unloading accident Second, causal potency – the exacerbations of the back condition with the associated psychological reaction caused by the accident seem to be just that. As I mentioned earlier, there is no hard evidence to suggest that the tortious exacerbations over the 15 months of Ms Zealley’s return-to-work played any major part in Ms Zealley’s overall condition.
In my opinion, the appropriate and common sense way to deal with this contribution to Ms Zealley’s injury is to vary the apportionment applicable to Linfox in the primary case – the unloading accident – by 5% thus producing a final figure of 60/40 against Linfox.
Conclusion
Liquorland is entitled to contribution of 60 per cent of the settlement sum from Linfox. There may be other orders which the parties require and I will give them time to consider these reasons.
12
3
0