Whitley v Aldi Stores [2017] QDC 50

Koppenol DCJ

In 2013 the plaintiff suffered an injury to her left wrist while pulling a 4kg dry dog food bag from the conveyor belt to scan the product at a cash register. The plaintiff alleged the injury left the plaintiff permanently unemployable due to the development of a ganglion in her left wrist.

The plaintiff alleged that the injury was caused by Aldi’s negligence. The main issue to be determined by Koppenol DCJ was whether the mechanism of manoeuvring the large bag off the conveyer to be scanned was negligent and whether it caused the injury.

Liability

The plaintiff’s claim came to rest on being required to “lift, grab and drag” the dog food bag across the scanner at the cash register rather than use the trained technique called the “paddle grip technique”. Relevantly, the plaintiff alleged the reason for this was because the bag was too heavy to push across and could she could not reach its far end. The claim further refined on the reason for this was because of the ‘step-up’ in the conveyor, which was alleged to pose a risk to the bag splitting.

Ultimately, His Honour rejected the plaintiff’s claim by reference to the only expert called about the step up:

[17] Dr Carnavas examined the subject register checkout in 2015 and made detailed measurements, other calculations and observations. He also tested whether the so called step up would inhibit a 4kg bag of dry dog food from traversing across from the conveyor belt to the scanner. He concluded that (a) the step up was “about half a millimetre”, (b) a 4kg bag of dog food was able to traverse the 0.5mm step up “without any perceptible change of force”, (c) the edge was not sharp but had a “rounded” or “blunt” edge, (d) there was “no restriction to movement of the bag as a result of passing over that edge”, (e) it was not possible with the sharpness or the ends that he observed to cut the packaging of the dog food as “[t]he bag would bridge the gap in any respect”, and (f) even after dragging the bag over the metal edge “in the order of 10 times”, it never caught or cut.

[19] Those findings have the consequence that the pleaded allegations that the paddle grip technique was unsafe for use on a 4kg bag of dry dog food—which was the factual basis for Mrs Whitley’s claim—must be rejected.

His Honour found that while Mr J.O’Sullivan provided a report about the particular force that would have been used, he was not asked to and did not offer an opinion about the step up.

His Honour went further to dismiss the claim based on causation for the work mechanism and the ganglion:

[28] … Whilst Dr McCartney did say that there was no evidence that the workplace incident caused the ganglion and that “the most likely scenario’ was that the ganglion developed “coincidentally”, he also said that it was “distinctly possible” that a developing ganglion was present at the time of the workplace incident.

[29] Dr Robinson, too, was of the opinion that it was possible that “the ganglion was there before the workplace incident”. He also said that it was “probably representative of my experience in practice” that more than 90% of ganglions “just occur congenitally”—that is, without a prior traumatic event or repetitive use of the wrist.  Dr Coleman said that Mrs Whitley’s “predisposition” to the development of a wrist ganglion was “quite possible” as the cause.

Quantum

Had his Honour found for the plaintiff, damages would have been assessed at $14,465.00 ($14,000.00 for General Damages and $465.00 Fox v Wood). Considering the plaintiff’s injury and employability, his Honour found there was no loss of income because the plaintiff had not established she had taken reasonable steps to find a job:

[37] … She gave evidence that (a) she had made an informal enquiry about becoming a store “greeter” but had not taken any other steps to find employment, and (b) her treating physicians had previously told her that unless she could find a job that did not involve use of her hands, she would find it very difficult to return to work.

[38] In circumstances where an injured person seeks an order from the Court that she be awarded economic loss damages of more than $280,000, it is incumbent upon that person to show that her loss is attributable to the workplace injury and that she has taken reasonable steps to try to find a job. Mrs Whitley did neither. As a result, I am unable to see how the Court could make any award for economic loss.

David Cormack – Brisbane Barrister & Mediator

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