Alavi-Moghaddam v Woolworths Ltd  QDC 98
In this recent Queensland District Court decision, the applicant was successful in seeking orders that a respondent: (1) provide answers to its request for information relevant to an injury sustained by the applicant at the respondent's workplace (pursuant to section 279 and 287 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA)); and (2) allow an inspection of its workplace with an engineer (pursuant to rule 250 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)).
The applicant was employed as a shelf-packer at the respondent's supermarket, and sustained injury in April 2007 when she was at the top of a ladder in the cold room, retrieving a 20 kilogram box of produce from shelving. The claim failed to resolve at the pre-proceeding compulsory conference in October 2011, and proceedings were filed in December 2011.
In September 2011, the applicant requested documents and information (which were said to be relevant to the circumstances of the incident) pursuant to section 279 WCRA. The respondent provided a response indicating that it was not in possession of the requested information or documentation.
In October 2011, the applicant's solicitors sought to have an inspection of the respondent's workplace with an engineer. The respondent's solicitors advised in November 2011 that an inspection would not be allowed, but that a photograph of the relevant ladder would be provided.
In January 2012, the applicant's solicitors made a further request for information. No response was provided by the respondent.
An application was filed seeking orders that the respondent provide a response to the applicant's request for information and documentation, and that the respondent be permitted to attend the workplace with her solicitor and an engineer for the purpose of an inspection.
Production of documents
The Court was not persuaded that the respondent had failed in its duty of disclosure pursuant to section 279(1)(a) of the WCRA, as it had provided a letter to the applicant stating that it was not in possession of any of the requested documents in October 2011. Although the applicant's further request for documents in January 2012 provided more detail as to the documents sought, the Court was of the view that the categories of documents sought did not change from the original request in October 2011. As such, the Court found that the respondent had complied with its responsibilities under section 279(1)(a) of the WCRA, and the Court refused that part of the application.
Provision of information
The Court found that the information requested by the applicant in January 2012 pursuant to section 279(1)(b) of the WCRA was different to that which was sought in September 2011. The type of information requested by the applicant in January 2012 included information about: previous incidents where the ladder had become unstable, training and instruction in relation to the use of ladders when placing goods on shelves, the layout/dimensions of the cold room, dimensions of the racking and shelving, and where potatoes and apples were stored and accessed by employees.
The Court considered that the information sought was reasonable and relevant, and found that the respondent had not complied with its statutory requirements of disclosure.
Inspection of workplace
The respondent submitted that the inspection was not necessary and the applicant was "fishing for a case".
The applicant had pleaded that the respondent had failed to take reasonable precautions, exposed the applicant to risks of damage or injury, failed to provide and maintain safe and adequate plant and equipment, and failed to provide a safe system of work.
The Court noted that there was no incident report or any evidence of an investigation having been conducted in relation to the incident, and said it would be unrealistic to expect the applicant to present her case based solely on her memory, given that the incident occurred over five years ago.
The Court accepted that an inspection and an expert ergonomic report were necessary for deciding issues in the proceeding, considering the current state of the evidence. The existing evidence was inadequate for the purposes of resolving the issues.
The applicant did not ultimately pursue an order that the inspection take place whilst work was in progress. The Court held that this made it more difficult for the respondent to argue that the applicant was "fishing for a case".
The Court was not persuaded that video footage was necessary, given that the applicant no longer sought to conduct the inspection at a time when operations at the respondent's premises were taking place.
The Court ordered that the employer provide information under the WCRA after proceedings had commenced. The decision proceeded on the basis that the parties' obligation to cooperate and to provide information and documents under the WCRA were continuing obligations.
The Court cited with approval authority that in the interests of fair play and fair representation, injured persons should be permitted to inspect the premises where they allege they were injured.
The Court was not swayed by the submission that the Court should not exercise its discretion to make the order, where the inspection was first requested after the applicant had served a Certificate of Readiness and after the parties had exchanged mandatory final offers.
If an applicant seeks an order to inspect a respondent's premises at a time when operations are being carried out, then depending on the circumstances a respondent may have an argument that the applicant is "fishing for a case". In any case, a respondent can seek to control the scope and terms of the inspection by agreement, or by arguing questions of relevance and necessity before the Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.