Australia: Another win for retailers! Court finds supermarket not liable for injury

In this alert, Partner, Robert Tidbury and Associate, Janine Oberhardt discuss the recent District Court decision of Whitley v Aldi Stores [2017] QDC 50 where the Court found that the manual handling technique put in place by the employer was safe and that the Plaintiff failed to establish that her injuries were caused by the alleged event.

Facts

The Plaintiff, 40 year old Mrs Whitley, was performing checkout operator duties at an ALDI store in North Lakes, Queensland. She allegedly sustained a ganglion to her left wrist on 30 March 2013, when pulling a 4 kilogram bag of dry dog food from the conveyor belt to the scanner. She claimed that ALDI had breached their duty of care and claimed a total of $332,794.29 in damages (plus interest).

Decision

Koppenol DJC dismissed Ms Whitley's claim finding in favour of ALDI. Not only did the Court find that the Plaintiff had failed to make out her pleaded allegations with respect to negligence and breach of duty, but she also failed to establish medical causation on account of the uncertainty surrounding whether the event had caused the left wrist ganglion.

The Plaintiff's pleaded case centred on her allegations that:

  • the 4 kilogram bags were not on ALDI's Price Look Up (PLU) List. This meant that she was required to manually scan the bag. Had the bag been on the PLU list, she could of entered the code on her keyboard and not had to scan the item; and
  • the 'paddle grip technique' (in which it was accepted she had been trained) could not be used because the bag could not be pushed across a 'step up' at the end of the conveyor belt and a 'step down' to the scales.

It was in dispute at trial as to whether or not the bags did have a PLU code at the date of the accident. However, Koppenol J found that consideration was irrelevant, as the Plaintiff's case was that the cause of her injury was, not the absence of the PLU code, but ALDI's defective manual handling system. That manual handling system was described as the 'paddle grip technique' which involved the operator placing a hand behind the product on the conveyor, and pushing it across the flatbed scanner.

Insofar as the paddle grip technique's application being unsuitable due to the presence of the step up at the end of the conveyor, the Plaintiff alleged that this step up had a sharp edge which meant that if the operator did not lift, grab and drag the 4 kilogram bag, it could break. Notably, the alleged 'step down' was not examined by the Court, as the Plaintiff gave evidence that the injury occurred before the bag reached the step down.

Expert evidence was led by both the Plaintiff and the Defendant. Notably, the Plaintiff's expert did not comment on the step up. By contrast, the Defendant's expert gave evidence that the step up was approximately half a millimetre and that the 4 kilogram bag was able to traverse the step up without any perceptible change of force. That expert also gave evidence that the edge of the step up was not sharp but had a rounded or blunt edge. He stated that, when examining the step up, he dragged the bag over the metal edge approximately 10 times, with the bag never being caught or cut.

The Court also heard evidence from the Store Manager who stated that she had used the paddle grip technique to scan the 4 kilogram bags and never experienced any difficulties. The store manager also confirmed that she had no difficulties moving other items from the end of the conveyor belt to the scanner, the edge of the step up was not sharp and that she had never had a bag of dog food split open whilst using the technique.

The Court accepted the evidence of the Defendant's expert and the Store Manager, finding that the manual handling technique was safe for use on the 4 kilogram bags.

With respect to causation, three specialists provided reports on the Plaintiff's injury being Dr Mark Robinson, Dr Stephen Coleman and Dr Robert McCartney.

Dr Robinson provided a report in which he stated that it was 'likely' that the ganglion developed from the workplace incident. However, during trial Dr Robinson accepted that it was possible that the ganglion was present (and asymptomatic) before the workplace incident. Similarly, Dr Coleman stated in a report that the fact the Plaintiff developed sudden pain with subsequent swelling in the workplace incident did give some 'credence' to the fact that it was an activity that may have strained her ligament and subsequently caused a ganglion to develop. When Dr Coleman was cross examined about the use of his word 'credence' he said that he could not say that it was 50 percent but he could not see any other reason that she developed the ganglion except for coincidence. During re-examination he stated that he was hesitant about confirming 50 or 51 percent but said that the ganglion "still may have been just naturally occurring and just happened".

Dr McCartney's testimony was that there was no evidence that the workplace incident caused the ganglion and that the most likely scenario was that the ganglion developed coincidentally and it was distinctly possible that the ganglion was present at the time of the workplace incident.

Having regard to the medical evidence, Koppenol J found that he could not be satisfied, on the balance of probabilities, that the incident caused the Plaintiff's injury. The judge also considered a quantum finding that, had the Plaintiff successfully established liability, he would have awarded damages in the modest sum of $14,465.00 (comprising of $14,000.00 for general damages and $465.00 Fox v Wood). In considering the claim for past and future economic loss, Koppenol J observed:

"In circumstances where an injured person seeks an order from the court she be awarded economic loss damages of more than $280,000.00, 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 future economic loss."

Practical Tips

  • This case emphasises the importance of properly engaging and instructing your expert to provide a comprehensive opinion on all relevant aspects of your client's case.
  • A plaintiff's failure to demonstrate reasonable attempts to mitigate his or her loss may leave the plaintiff vulnerable to adverse findings by the Court insofar as the extent of their entitlement to damages for past and future economic loss is concerned.
  • This case is a timely reminder that parties to litigation must ensure their case is properly pleaded in the first place. Whilst a Plaintiff (or a Defendant) may try to rectify deficiencies in their pleadings by the provision of particulars and/or through oral testimony at trial, such efforts may amount to nothing if they are not supported by a pleaded material fact.

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