In Williams v Metcash Trading Ltd  NSWCA 94 (3 May 2019), the New South Wales Court of Appeal unanimously overturned a verdict in favour of Metcash in a distribution centre claim brought by a picker.
The trial judge found that, although the operator had been negligent, its negligence had not caused the plaintiff's injuries. This finding was overturned on appeal and highlights a trend towards a less exacting standard by courts on causation in these types of claims.
However, there were some useful findings on issues such as pick rates, which will be helpful to distribution centre operators.
The facts and the decision at first instance
The plaintiff was an employee of a labour hire company that placed him at Metcash's Eastern Creek Distribution Centre. On 1 June 2012, the plaintiff suffered a musculoligamentous type injury to his lower back when he lifted two boxes of 'Chum' dog food from underneath a 1.4 metre pick rack.
The plaintiff gave evidence, supported by a liability expert, that the height of the pick lot required him to twist and bend under load and that it was not possible to adopt safe lifting practices, including keeping his back straight and bending his knees while performing the manoeuvre. Despite evidence that a WorkCover inspector had found the system safe, the trial judge accepted that the low height of the pick lots was negligent because it required the plaintiff to adopt unsafe postures. The Court found that the height of the pick lot should have been increased to 1.8 metres.
Despite this finding, the trial judge found that the unergonomic height of the pick lot was irrelevant because the sole cause of the injury was the plaintiff's decision to carry two boxes at the same time. It was otherwise held that Metcash had in place appropriate picking systems and supervision.
The Court of Appeal
The Court of Appeal accepted the trial judge's findings with respect to the appropriateness of Metcash's picking system and its level of supervision. However, it rejected the trial judge's finding with respect to the irrelevance of the pick slot heights. In the Court's view, the plaintiff had established on the balance of probabilities that the injury would not have occurred had the pick slot height been increased to 1.8 metres. Accordingly, judgment was entered for the plaintiff.
This case highlights the need for operators of distribution centres to ensure that stock is able to be readily retrieved and is not unduly impeded by overhead shelving. It also highlights the difficulties faced by such centres in defending claims where there may be multiple potential causes of injury, which might otherwise give rise to live factual causation arguments.
Despite the disappointing outcome for employers, Williams is a helpful authority in some respects. It did not criticise the 'engineered standard' adopted by Metcash, a version of which is applied by many distribution centre operators. As such, it is reasonable for operators to set reasonable pick rate targets. What defines reasonableness will, however, remain a live issue in most cases.
Further, even in the apparent absence of documentary evidence, the Court was willing to accept the employer's evidence that unsafe practices were not the result of inadequate supervision.
Also, pleasingly, the Court did not accept expert evidence that recommended the implementation of likely expensive engineering measures, such as self raising platforms and turntables.
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