[2] The plaintiff is a 56-year-old man who was employed as a store person by the defendant which operated a Harvey Norman store in Dalby. He commenced a four-week, fixed-term, period of part-time employment on 17 July 2023. His role included delivering whitegoods to customers of the store. It is uncontroversial that on 21 July 2023 the plaintiff was injured whilst delivering a 137-kilogram refrigerator to a customer. He was provided with and was using a flat free trolley on which the refrigerator rested to perform the delivery. He was required to pull the refrigerator up a number of steps using the trolley. A co-worker assisted him. She was six months pregnant at the time of the incident. After the plaintiff successfully pulled the refrigerator and trolley up one step, and as he was pulling the trolley up a second step, he described feeling a popping sensation and immediate pain in his back.
[3] The plaintiff was taken to hospital where he was treated with pain relief. He was discharged the same day. He described experiencing chronic back pain for some 18 months after this incident. That pain has now resolved. It is uncontroversial that the plaintiff sustained a soft tissue injury to the back. It was an aggravation of a pre-existing spinal condition. Investigations revealed that the plaintiff had sustained an L1 compression fracture to his vertebrae. This was subacute to old in age. He also had mild degenerative disc disease at L3/4, L4/5 and L5/SI. It is uncontroversial that many years earlier the plaintiff experienced a ladder falling on him. It is likely that this caused the compression fracture.
[4] Dr Michael Redmond, a neurosurgeon, was the only expert to give evidence in the trial. His evidence was that the soft tissue injury that the plaintiff sustained had resolved by time of his examination on 28 August 2024. He opined that given the previous fracture and the arthritis of the spine, any pain that the plaintiff experienced after the period of recovery from the soft tissue injury is attributable to those pre-existing conditions.
[5] Dr Leo Zeller, an orthopaedic surgeon reviewed the plaintiff on 7 November 2023. He considered that the plaintiff's injury had resolved at that date. The plaintiff reported that his pain had settled, he reported no incapacity and did not require analgesia.
[6] It is uncontroversial that Harvey Norman owed the plaintiff a non-delegable duty to take reasonable care to provide a safe system of work and ensure reasonable care was taken to protect him from known or foreseeable risks.[1]
[7] Sections 305B - 305D of the Workers' Compensation Rehabilitation Act 2003 ('WCRA') govern the principles applicable to the standard of care to be observed by an employer and to the issue of causation.
[8] An employer does not breach a duty to take precautions against a risk of injury to a worker unless:
[2]
(a) The risk was foreseeable (that is, a risk the employer knew or ought to reasonably have known);
(b) The risk was not insignificant;
(c) In the circumstances, a reasonable person in the employer's position would have taken the precautions.[2]
[3]
[9] The plaintiff's case is that the defendant breached its duty of care by not providing a stair-climbing trolley and not providing a person capable of properly assisting in the delivery of whitegoods. That breach of the duty of care he contends caused his soft tissue injury.
[10] It was not disputed by the defendant's counsel that given the requirement to deliver whitegoods, a reasonable employer would foresee the risk of a soft tissue injury to the back in undertaking such activity. Such a risk would not be insignificant.
[11] The real issue in the trial turns on a consideration of whether Harvey Norman breached its duty of care and if so, whether that caused the injury to the plaintiff?
[12] Harvey Norman provided a trolley with straps for the purpose of delivering whitegoods. It was not a stair-climbing trolley but rather a trolley load-rated to 350-kilograms. It was a trolley of the type used by Harvey Norman across its many stores. The trolley used by the plaintiff on 21 July 2023 had been used on many occasions prior to that date to deliver whitegoods without any reported difficulties. Two persons attended to deliver the refrigerator on 21 July 2023. Ms Tamika Shand was working with the plaintiff to make the delivery. She was then six months pregnant. Ms Shand was in good health and been cleared regularly by medical professionals to perform her manual handling role. She continued to perform this role including assisting in the delivery of whitegoods up until the week she gave birth. She had no difficulties in doing so.
[13] On the morning of 21 July 2023 prior to the injury occurring, the plaintiff and Ms Shand had delivered a washing machine to another customer. Ms Shand took on the role of pulling the trolley up a small number of stairs whilst the plaintiff pushed from below. They experienced no difficulties in delivering this item using the same trolley the plaintiff was using when he was injured. After the plaintiff was injured his employer, Mr Harley Saxby, and Ms Shand completed the delivery using the same trolley without any difficulties.
[14] The duty of an employer to take reasonable care for the safety of its employees does not require it to safeguard an employee against all risks of injury.[3] In determining whether a reasonable person would have taken the precautions that the plaintiff alleges should have been taken I must consider this question prospectively. That means that I must identify what a reasonable person would have done looking forward at the prospect of a risk of injury, not looking retrospectively with the benefit of hindsight.[4]
[15] The provision of a trolley suitable to moving heavy objects and straps to hold the object to the trolley seems to me what a reasonable person would provide. There is no evidence before me from which I could find that the trolley and straps provided were not appropriate for the work that was required to be undertaken. The plaintiff has not established by any persuasive evidence that a reasonable person would consider a stair-climbing trolley to be necessary. No expert evidence was adduced by the plaintiff to establish that the type of trolley used was not fit for the purpose of delivering whitegoods or that the use of a stair-climbing trolley would have resulted in any different outcome.
[16] The plaintiff himself was experienced in the delivery of goods. On his evidence he had worked as a delivery driver and warehouseman over a number of years. He did not raise any issues with his employer as to the suitability of the trolley that was used. He did not raise any issues with Ms Shand as to her ability to provide assistance to him. The plaintiff had used the same trolley or a similar one to undertake deliveries over the course of the few days he was employed by Harvey Norman. He had delivered a washing machine and worked with Ms Shand to do so on the morning that the injury occurred without him raising any issue with respect to either the trolley or Ms Shand's assistance.
[17] I am not satisfied that Harvey Norman breached its duty of care. The plaintiff's claim fails as he has not proven on the balance of probabilities that Harvey Norman is liable for his injury.
[18] The defendant specifically pleaded that if the plaintiff suffered any injuries, it was caused by his own contributory negligence within the meaning of section 305H and 305I of the WRCA. It is contended that such contributory negligence would defeat the claim in any event.
[20] The plaintiff sustained an injury to his back many years ago when a ladder fell on him. He did not have that injury x-rayed so was unaware of the existence of a compression fracture to his vertebrae. An MRI and bone scan undertaken in November 2023 revealed the fracture and disc degeneration disease in his lower vertebrae. The plaintiff's evidence was that he experienced episodic back pain.
[21] The documentary evidence reveals that on 26 November 2019 the plaintiff attended upon his general practitioner. He reported that he hurt his back a few weeks ago carrying an awkward load. He had no pain at the time of presentation to the doctor. The examination revealed some tenderness to the left, posterior, iliac spine.
[22] On 23 November 2022 the plaintiff applied for a job with JBS Australia, a meatworks. He agreed to undergo a medical examination. In the pre-employment screening questionnaire, the plaintiff answered a question "Have you ever had an injury, illness or condition, resulting from work?" He responded "yes, damage to lower back". In answer to a question as to whether he had ever made a claim for worker's compensation in any previous employment he answered "yes, ladder fell on me". In answer to a question as to whether that injury was an ongoing problem, the plaintiff answered yes. That medical examination was undertaken on 25 November 2022. The report revealed that the plaintiff's lower back strength was considered poor. The report concluded that the plaintiff was suitable for a position that exposed him to "very light roles" involving lifting no more than 4.5-kilograms. The plaintiff's employment was terminated on 1 December 2022.
[23] On 15 May 2023 the plaintiff attended upon his general practitioner in respect of a Centrelink verification sheet. He reported that he had hurt his back many years ago when a ladder fell on his back. He was advised that he should "avoid bending, twisting, lifting and pushing heavy objects".
[24] On 14 June 2023 the plaintiff was interviewed by telephone by an officer of Centrelink. The records reveal the plaintiff's general practitioner confirmed the plaintiff experienced mechanical lumbar spine back pain with onset in 2003. The records reveal the plaintiff reported that he was not receiving any current treatment and that his back pain was worse with over-use and with weather change. The plaintiff denied he said these things to the officer of Centrelink. He denied that he experienced back pain with weather change. There are other statements within the records that reveal matters of a personal nature that the plaintiff must have advised Centrelink about. The significance of the records however is in confirmation that the plaintiff was told by his general practitioner that he should avoid jobs that involve twisting, bending, pushing and pulling of heavy objects.
[25] The plaintiff did not reveal to Harvey Norman that he had any back problems. In his interview with Mr Saxby the plaintiff was asked if he had any issues which may affect his ability to complete the tasks required. Mr Saxby discussed with the plaintiff the requirement to deliver whitegoods. The plaintiff did not inform Mr Saxby of any issues that he had with respect to his back. Mr Saxby states that had the plaintiff informed him that he had a back condition he would not have been successful in gaining the position because of the need to undertake manual handling duties.
[26] The defendant pleads that the plaintiff failed to act on reasonable medical advice, undertook duties which he knew he was not fit to perform and failed to take reasonable care for his own safety. The defendant contends that the plaintiff deliberately misled Mr Saxby. The plaintiff had been employed as a delivery driver or warehouseman over many years from 2014 until 2020. However as at June 2023 he had been unemployed for some time and was engaging with Centrelink in respect of the medical conditions he had, which included his back problems, which impacted his ability to work. The plaintiff ought to have known that he was not, in 2023, physically capable of performing the role of delivering whitegoods.
[27] The issue of contributory negligence is essentially a question of fact. The burden of proof rests on the defendant to establish contributory negligence. I am satisfied on the evidence before me that the plaintiff knew or ought reasonably to have known at the time he took up employment with Harvey Norman that he was not fit to perform the duties required. He was aware, on the basis of the medical advice provided to him, that he should not be lifting heavy objects. He was aware that he experienced episodic pain to his back if he twisted the wrong way or bent the wrong way. It was, to use the plaintiff's words, "episodic pain in response to stimulus". The risk of harm to him from delivering whitegoods would have been obvious to a reasonable person in his position. The plaintiff contributed by want of his own care for his own interests, to his injury.
[28] The apportionment of liability when there is a finding of contributory negligence acts to reduce the damages recoverable to the extent that the court considers just. It can result in the claim being defeated. It seems to me that the plaintiff's conduct in accepting the position for which he was not at all suitable physically would defeat the claim for damages. However, it is not necessary to finally decide that issue as the quantum of damages payable to the plaintiff had he been successful would not exceed the statutory refund that would be due given the short period of his employment.
[4]
[29] The plaintiff was employed on a fixed term contract for four weeks. He was employed part-time and was to receive $618.25 per week gross. He worked for one week before he was injured. Whilst the plaintiff was hopeful that there might be ongoing work available to him at Harvey Norman, he was employed on a fixed-term contract to replace another employee who had taken leave. There is no evidence upon which I could find that the plaintiff would have been employed by Harvey Norman after 13 August 2023. Prior to his employment with Harvey Norman the plaintiff was reliant on Centrelink benefits.
[30] Whilst the plaintiff states that it was 18 months before his injury resolved, on the medical evidence before me the plaintiff had no ongoing incapacity for employment after 7 November 2023 when he was seen by Dr Zeller, an orthopaedic surgeon. He reported no incapacity to Dr Zeller. It was confirmed by Dr Redmond that any pain the plaintiff experienced after the soft tissue injury was resolved would be attributable to the pre-existing conditions, the fracture and the arthritis.
[31] Given the fixed term of the contract the plaintiff would be entitled to $1,668.75 for past economic loss. Past loss of superannuation benefits agreed at 10 percent would amount to $166.87. The parties agree that there is an amount of $792.00 refundable to WorkCover pursuant to the principles in Fox v Wood.[5]
[32] In terms of future economic loss, any ongoing pain and incapacity that the plaintiff has experienced or will experience after 7 November 2023 is attributable to the pre-existing injuries and not to the injury sustained on 21 July 2023 which has completely resolved. I am not satisfied that the plaintiff will suffer any actual loss of earnings as a result of the injury he sustained on 21 July 2023. There should be no award for future economic loss.
[33] In terms of general damages the soft tissue injury the plaintiff sustained properly falls with item 93 of the Workers' Compensation and Rehabilitation Regulation 2014, it being a minor thoracic or lumbar spine injury. The injury is one which resolved without any ongoing symptoms within months after the injury was caused. Assessing the plaintiff's general damages according to an injury scale value, I consider that an ISV of 1 is appropriate. That corresponds to an award of $1,535.00.
[34] Pursuant to s270 of the WCRA the total award of damages must be reduced by the total amount paid by the workers' compensation insurer by way of compensation for the injury. The refund due to WorkCover is $10,977.86.
[35] Leaving aside the extent to which the plaintiff's contributory negligence would reduce the damages, the damages the plaintiff would receive after payment of the refund is $0.00.
[5]
[36] My orders are:
The plaintiff's claim is dismissed.
The plaintiff pay the defendant's costs on the standard basis from 15 November 2024.