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Berhane v Woolworths Ltd [2017] QCA 166

FACTS

Mr Berhane was employed as an order selector in a warehouse operated by Woolworths. He was required to lift and stack cartons of various weights and sizes, up to shoulder height and beyond. While lifting and transferring the cartons he would also frequently should reach away from his body, while holding cartons of various weights. on a normal day, he would make those movements over 1,600 times. When the plaintiff was employed he had an asymptomatic pre-existing degenerative condition in his shoulder, called rotator cuff tendinopathy. The strain on his shoulders from the work activities aggravated that condition and produced a form of bursitis in his rotator cuff.

The plaintiff commenced proceedings claiming damages for personal injuries. His claim was dismissed on the basis that he had not proved that his injury was caused by any breach of duty on the part of Woolworths. He appeals against the dismissal of his claim, contending that the learned trial judge failed to make a finding of the duty owed and mistook relevant evidence which led to an incorrect assessment of causation. As will become apparent, the central issue on appeal was that of the finding on causation. Woolworths cross-appeals on the quantum of damages assessed by the learned trial judge, the various heads of which totalled $231,211.45.

P would, on average, prepare 15 orders per day. This would involve stacking two pallets according to the instructions received over the headset. Mr Berhane, fearing he would lose his job by failing to reach 100 per cent performance, felt compelled to work faster. He missed breaks. His impression of a review on 4 October 2010 was that his employment was threatened.

Woolworths’ response to the risk of musculoskeletal shoulder injury relied on employees understanding advice given to them during training, and importantly, using discretion as to how certain tasks should be performed. The policies at the centre were not known by the supervisors, and therefore not enforced. The learned primary judge held that he was unable to form any conclusion about the number of above-shoulder lifts required. The workplace activities gave rise to the risk of the type of injury which Mr Berhane suffered. The risk of injury was the risk that, by carrying out the duties of an ordinary picker in the system of work implemented by Woolworths, an employee would suffer a musculoskeletal injury.

The nominated doctor at the court stated: “People as young as 20 can get bursitis, but it’s just not as common or likely. But if you put someone who’s predisposed with degenerative changes in their tendon and then you load that shoulder up at horizontal or above and particularly with heavy weight or repetitively, it’s quite common for them to end up aggravating not only the tendinopathy which causes the pain but then to develop bursitis.”

LEGAL ISSUE

  • where the appellant was employed by the respondent as an order selector in a large warehouse.
  • where the appellant’s employment required him to lift and stack heavy cartons more than 1,000 times per day.
  • where the appellant had a pre-existing degenerative condition in his shoulder when he commenced work.
  • where the strain caused by lifting the cartons aggravated that condition and caused a further injury.
  • where the trial judge dismissed the appellant’s claim because there was no breach of duty or causation.
  • where the system of work involved lifting weights more than the recommendations of the relevant work safety guides.
  • where casual employees were frequently sent home if their rating was less than the other employees.
  • whether the respondent’s duty was breached and whether the risk of injury to the appellant was foreseeable and a breach of duty caused the appellant’s injury.

JUDGMENT

Judgment entered for the plaintiff against the defendant in the sum of $231,211.45.

Woolworths ordered to pay the appellant’s costs of the appeal on the standard basis.

The possibility that the earnings across that time would be less than he would make as an order picker working for Woolworths was accommodated by the application of the significant discount of 75 per cent.