Appeal judgment in long running Woolies claim on causation & pre-existing condition

The plaintiff injured his left shoulder while working as a ‘picker’ at Woolworths Limited’s (Woolworths) distribution centre at Larapinta in the produce and chiller section. The plaintiff commenced working in August 2010 and complained of the injury in June 2011.

The first interlocutory skirmish was back in 2013 over the wording of the Notice of Assessment as opposed to the Notice of Claim for Damages and objected to by the defendant – Berhane v Woolworths Limited [2013] QDC 194.

McGill DCJ found for the plaintiff on that point:

[24] There is no factor arising from either the structure and purpose of the legislation, as expounded in the authorities, or an analysis of the text of the relevant sections in those decisions, which provides any justification for a conclusion that a plaintiff or potential plaintiff is confined in the pursuit of a claim for damages by the precise semantic description of the injury in the notice of assessment. So long as it is clear that the notice of assessment and the notice of claim (or subsequent statement of claim) are referring to the same injury, differences in the seriousness and significance attributed to that injury are matters to be resolved on the merits at the trial. But that I think is not really the issue in the present case: it is whether a notice of assessment which by implication attributes the injury to a particular “event”, precludes a claimant from pursuing a claim for damages on the basis that the injury identified in the notice of assessment was caused by some different “event” within the meaning of those expressions in the Act. Once the issue in the present case is correctly identified in those terms, the respondent’s proposition becomes, it seems to me, essentially unarguable, being supported neither by the terms of the legislation nor any of the authorities to which I have been referred.

Trial at first instance

Devereaux SC DCJ

Berhane v Woolworths Ltd [2016] QDC 142

The plaintiff operated an electric pallet jack and picked cartons to place into pallets. Most cartons to be lifted onto the pallets weighed 16 kg or less, with a significant percentage being in the range of 13 – 17 kg. The system of lifting the cartons required the plaintiff to lift away from his body and more than the recommendations of the WorkSafe Victoria Guide to Manual Order Picking.

Repetitive lifting was required for all the work tasks. The plaintiff was required to perform 2,160 manual transfers a day, and about 1,600 lifts were made on an average day and some required above shoulder height lifts.

A computer system dictated the selection of cartons and tracked workers’ performance out of rating up to 100%. The plaintiff worked as casual and was concerned that if he did not achieve 100% rating, he would lose his job and felt compelled to work faster and miss breaks. This resulted in workers working faster and taking short cuts, including the plaintiff.

While his Honour set about to examine breach of duty and found the system of work was a whole deficient and that there was inadequate supervision, resulting in the protective measures taught being ignored, his Honour did not make a finding. This was because the plaintiff’s claim was dismissed on the basis of the injury not being foreseeable and not satisfying the test of causation.

The trial judge found that the plaintiff would not have suffered the injury, but for his degenerate pathology and the work tasks were not a foreseeable risk for a person who did not have the plaintiff’s pre-existing condition. This was based on an understanding of Dr Blenkin’s evidence that the plaintiff was pre-disposed to the development of rotator cuff tendonitis because of the plaintiff’s degenerate condition of subacromial bursitis or rotator cuff degeneration. Dr Blenkin’s opinion was the development of the rotator cuff tendonitis was inevitable and that the plaintiff would have developed the symptoms within five years regardless of the work aggravation.

The trial judge rejected that the preventative measures opined by Mr McDougall from Intersafe would have prevented the injury. The measure recommended were:

  • Reducing the frequency, reach distance and heights of lifts;
  • Positioning pallets to ensure workers minimised reach distances by walking around pallets, sliding cartons where possible, limiting heights of pallets, limiting the weight of cartons and crates and staking lighter cartons at larger weight distances;
  • Enforcing the practice by effective supervision.

The plaintiff appealed, and in response, the defendant made an application for security for costs under r 772 of the Uniform Civil Procedure RulesWoolworths Limited v Berhane Ghebreigziabiher Berhane [2016] QCA 238. The defendant’s application was dismissed.

Interestingly, on that application McMurdo JA stated:

“… extracts from the evidence, as set out in the appellant’s outline of argument, suggest that the appellant has at least an arguable case.  In particular, it is not unlikely that the trial judge has erred by failing to consider whether the appellant had a claim upon the basis of acceleration of the onset of the condition of which he complained as a result of the respondent’s negligence.”

Appeal

Berhane v Woolworths Ltd [2017] QCA 166

On the appeal, Gottorson JA and Dalton J agreed with Morrison JA and allowed the plaintiff’s appeal.

His Honour found that Dr Blenkin’s evidence properly understood was that the work activities aggravated and accelerated the underlying degenerate rotator cuff disease. Further, had the Intersafe measures been implemented the acceleration would have been prevented. This was contrary to the trial judge’s findings.

His Honour found further support for this in the evidence of Dr Macgroaty’s that repetitive lifting away from the body and overhead caused acceleration of the plaintiff’s condition.

His Honour concluded as to causation in fact of the work tasks involved:

(a) repetitively transferring loads of about three to 17 kg;

(b) doing so using the arms to both lift and reach away from the body;

(c) lifting from a low height to the horizontal or above, and above the shoulders and head;

(d) reaching away from the body to place cartons in, and retrieve cartons from, the middle of a stack; and

(e) doing the above repetitively during the day, meaning over 1,600 such transfers a day.

 

His Honour found if the employer had properly supervised the system of work in terms of the Intersafe measures then the acceleration of the plaintiff’s condition would not have happened. The defendant submitted that a number of the lifting tasks did not fall into the category found above and that the plaintiff was required to disentangle those tasks from the negligent tasks to prove causation.

His Honour rejected this on the basis the plaintiff was required to perform many of tasks that caused the aggravation or acceleration of the condition. On this basis, his Honour was satisfied that s 305D(1) of the Workers Compensation and Rehabilitation Act applied. In the alternative, the plaintiff’s counsel submitted that the material contribution test in s 305D(2) would apply. His Honour was satisfied that the trial was conducted on the basis the work activities material contributed to the acceleration of the pre-existing condition and hence, found causation was satisfied on both limbs.

As to breach, his Honour noted the plaintiff was part of a cohort of 10% to 15% of the population who have rotator cuff disease as an underlying condition. As to whether this disentitled the plaintiff to being owed a duty of care because of his pre-existing condition, his Honour applied Calvert v Mayne Nickless Ltd (No 1) [74]   and held:

[88] Thus, as Calvert shows, if the pre-existing degenerative condition is quite common in persons of the employee’s age that can be a basis for concluding that the employee is nonetheless within the class of people within the normal range of health and strength.

[89] In my view, Mr Berhane’s pre-existing condition should be assessed the same way. The condition is sufficiently common that it should be found that a significant segment of the population has it, and it becomes more prevalent as one gets older. The risk of injury to such a segment of the population is foreseeable. Accordingly the duty that should have been found was not a special or higher duty, but rather the normal duty to take reasonable care not to expose Mr Berhane to a risk of injury. The risk here was the risk of musculoskeletal injury to the shoulders from the required system of lifting and transfers.

As to quantum, the assessment by the trial judge of $231,211.45 was not interfered with on appeal.

David Cormack – Brisbane Barrister & Mediator

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