That was the expensive lesson learned by Ms Whitley,
whose claim was dismissed by the District Court earlier this month
with costs. Cooper Grace Ward acted for WorkCover Queensland in the
successful defence of the claim.
Ms Whitley sought damages for personal injuries (a wrist
ganglion) allegedly caused by scanning a 4 kg bag of dog food at an
Aldi Supermarket. Her pleaded case was that she was unable to
utilise Aldi's 'paddle technique' to scan the bag due
to the register having a design defect. More particularly, it was
alleged that there was a step up and step down between where the
conveyor belt ended and the scanner began.
At the trial of the matter, Ms Whitley made several attempts to
amend her statement of claim to make her pleaded case consistent
with expert opinion she had commissioned. Her own appointed expert
opined that Ms Whitley could not safely scan the bag due to the
forces involved in moving it and the need to overreach to take hold
of it. Such matters were disputed and contrary to the
defendant's expert opinion. Much of the opinion of Ms
Whitley's appointed expert was excluded on the basis that the
factual matters within it had not been established.
Initial amendments to the statement of claim were not
When giving her evidence, Ms Whitley revealed that she had
difficulties performing the scan due to a number of other issues,
including the bag sometimes tearing on the scanner. This led to a
further attempt, on day three (of a trial originally scheduled to
run three days), to amend the statement of claim again. These
amendments were opposed and not allowed, the Judge forming the view
that a point must come where the pleadings crystallise.
In the end, Ms Whitley's case ended where it started –
she allegedly could not use the paddle technique due to the step up
and step down. The Court found no such step up or step down
existed. On that basis, the case simply failed. It did not matter
that other observations had been made about the scanning technique
by Ms Whitley or others, because such matters had not been
The claim also failed on causation grounds – the Court was
not satisfied that the work event caused the ganglion.
Had Ms Whitley been successful, his Honour Judge Koppenol would
have awarded her $14,465. He noted that 'it was remarkable that
no medical evidence was called to support her claim that the
workplace injury had caused or contributed to her economic
Cooper Grace Ward is a leading Australian law firm based in
This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
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The case is positive news for employers facing a compensation claim for a stress-related injury from disciplinary action.
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