DISTRICT COURT OF QUEENSLAND - Document Control

[Pages:22]DISTRICT COURT OF QUEENSLAND

CITATION: PARTIES:

Solomona v No 1 Riverside Quay Pty Ltd [2016] QDC 289

SORAYA KARINE SABINA SOLOMONA (plaintiff)

v

NO 1 RIVERSIDE QUAY PTY LTD (ACN 006 639 07) (defendant)

FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: DELIVERED AT: HEARING DATES: JUDGE: JUDGMENT & ORDER:

CATCHWORDS:

LEGISLATION CITED:

TEXTS CITED: CASES CITED:

27/14 (Southport Registry) Civil Claim

District Court at Southport

18 November 2016 Brisbane 25, 26 and 27 October 2016

Dorney QC DCJ 1. Judgment for the defendant against the plaintiff. 2. Each party has leave to file, and serve, submissions on costs, if any, by 4pm on 25 November 2016.

Employment ? injury to employee ? whether duty of care statutorily breached Workers' Compensation and Rehabilitation Act 2003 Part 8 of Chapter 5, ss 305B, 305C, 305D, 305E, 306, 306O, 306N, 306J Worker's Compensation and Rehabilitation Regulation 2003 sch 8, Part 2, Division 1, s 2, sch 8, Part 2, Division 2, s 8, sch 9 Workplace Health and Safety Act 1995 s 37A Glass, McHugh and Douglas, The Liability of Employers, 2nd ed, The Law book Company Ltd, 1979. Benic v New South Wales [2010] NSWSC 1039 Camden v McKenzie [2008] 1 Qd R 39 Derrick v Cheung [2001] HCA 48 Erickson v Bagley [2015] VSCA 220

COUNSEL: SOLICITORS:

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Fox v State of Queensland [2016] QDC 146 Gratrax Pty Ltd v TD & C Pty Ltd [2013] QCA 385 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Medlin v State Government Insurance Commission (1995) 182 CLR 1 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 State of NSW v Mikhael [2012] NSWCA 338 Stitz v Manpower Services & Anor [2011] QSC 268 Stokes v House With No Steps [2016] QSC 79 Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 Tabet v Gett (2010) 240 CLR 537 Vairy v Wyong Shire Council (2005) 223 CLR 422 Vincent v Woolworths Ltd [2016] NSWCA 40 Wilkinson v Law Courts Ltd [2001] NSWCA 196 R D Green for the Plaintiff K S Howe for the Defendant CMC Lawyers for the Plaintiff Jensen McConaghy for the Defendant

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Introduction

[1] Should an employer be held legally liable for a back injury suffered by its employee in circumstances where the employee, in the process of lifting baskets containing ice cream products (within a thigh high, flat top ice cream freezer with sliding panels for easy access by the general public) located in a customer area of a service station, meets resistance to lifting because an edge of such a basket had become frozen (to some extent), when a general Targeted Replenishment card had been provided to all employees which, indirectly, drew attention to avoiding "sudden or jerky movements"? That is an over simplification of the full circumstances involved; but it does raise, starkly, the issue of where the boundary line is to be drawn between taking reasonable care for an employee's safety and safeguarding the employee "completely from all perils": see Muir JA in Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 at [31].

Background

[2] The plaintiff, Soraya Karine Sabina Solomona, was aged 33 years at the time of the relevant incident on 1 November 2010, having been born on 2 January 1977. There was a second "work" incident involving the plaintiff's back on 9 April 2012 ? but it has not been sued upon (though is relied upon as an aggravation of the earlier injury). On the date of the incident she was employed by the defendant, No 1 Riverside Quay Pty Ltd, as a customer service representative. As described by her, at the BP Service Station at Labrador where she was working, she was required ? as expressed in her own words ? to clean petrol bowsers and serve customers in circumstances where "everyone" needed "to do everything". Specifically with reference to her role in the convenience store of the service station, among her duties were to refill the shelves and change the products. She had earlier been employed by the defendant in New South Wales in the same role before she relocated with her family to Queensland.

[3] The task that she was directed to undertake on the day of the incident was to complete a "planogram". As explained by Mr Graham Pickrell, a store manager of BP who knew the plaintiff, a planogram "is the same as, basically, stock replenishment" (namely, "moving stock from one spot to another or taking out lines if they have been discontinued and new lines have got to go in. New stocks come in and need to be presented"). Specifically with respect to the implementation of a planogram, the "plan" would be sent down from head office which "might be moving certain lines to a different basket because all your baskets are in a certain order" but it "could also be taking a certain line out because it's been discounted by Streets or Peters, and you'd be putting a new line in". And there was evidence that a planogram applied to "every category" of product.

[4] At trial, as part of a bundle of documents tendered by consent (which became Exhibit 3), there were 5 photographs of an ice cream freezer. Those photographs were acknowledged by the plaintiff to be of the "same type" of freezer, though, when asked about its difference in any way, she was unable to state anything but the "colour". Mr

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Pickrell described the photographs as showing the "type" of freezer in place at the time. He added that sometimes the freezers were Streets and sometimes they were Peters, noting that "they're exactly the same; and they might change the size depending what store it is".

Disputed (and other) matters

[5] The plaintiff adamantly denied that she had done a planogram before. But I reject that in light of the evidence given by a co-worker called on her behalf, Ms Jean-Marie Oats (for reasons that I elaborate on later). According to Ms Oats, she and the plaintiff used to work together at the BP Labrador and they both had the same role insofar as these products were concerned. After acknowledging that implementing a planogram is similar in terms to the activity of the replenishment of stock (with both involving lifting the ice cream baskets and rearranging such), she agreed that it was "part and parcel" of the duties that she did. She expressly stated that the plaintiff "had done this sort of job before with the ice cream freezer", referring specifically to both the replenishment of stock and the implementation of a planogram. In re-examination, Ms Oats' evidence in this respect did not change.

[6] It was not in dispute that the ice cream freezer was in the general customer area, accessible by such customers. There was no evidence contrary to that given by Ms Oats (who gave the most detailed evidence concerning staff involvement with the ice cream freezers) that "as a matter of common sense" she did a "visual check to see if there is a build up of ice, or shake it" and that others would do that, both before and after this incident, agreeing that it was "a fairly routine task". She stated that this was in contrast to the main freezer where "pies and things" were stored, since it did not have "ice build up like the other one".

[7] As for the location of the ice on the ice cream basket on the day of the incident, after some consideration of the various photographs in Exhibit 3, the plaintiff settled on Photograph 4 and made a mark on it. In that photograph the marked area was to the right and identified a part of a basket at the right edge of the freezer. As described by the plaintiff, the ice was "(under) the little white thing. It was stuck to the freezer", with the plaintiff indicating that the part of the basket which was stuck was the "little bit, on the side of the freezer". In general terms concerning the task asked of her, the plaintiff stated that she "didn't think" she "would have any problem doing" it. She stated that she looked to see if it was "okay" - conceding that "okay" meant that there was no impediment or any difficulty with lifting - adding that it was to "maybe assess the weight". The plaintiff further stated that it "looked fine" to her. She had earlier stated that, when she started to pull the basket, it "resist(ed)" and, when asked if she knew why, she stated further that she had a "quick look" and "under there was some ice". She then stated that she "tried to keep pulling a little bit to see if it gets loose" and, when then asked whether "that" did anything to her back, she replied that "(t)hat's when I hurt that first", though she then added that she "didn't see it so I kind of pulled and didn't expect the basket to resist". As her evidence in whole indicated, she saw the ice after the first resistance but continued pulling, apparently despite the

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initial pain. In answer to the question proposing that she would "know that as a matter of common sense" there can be a "build up of ice", the plaintiff responded that "(i)t could be, but I didn't think of that. I don't know." She admitted that she had seen a build up of ice earlier in her life in her "mum's freezer".

[8] Ms Oats, after acknowledging there was not any specific instruction or direction or training "in relation to how that was to be done" for "that particular job", recalled that there was an attempt after the incident to make such a "step-by-step process" but that it was "just very difficult" because the attempted process caused "strain on the back". But Ms Oats, when questioned about whether, in the end, there was any change of method after the incident from that applying before, stated that there was "no change of method. No". Describing the procedure generally, Ms Oats stated that the ice built up at the bottom of the freezer, then ice creams "sort of" stuck to it and it "built up around the baskets as well at the top", such that "sometimes you've really got to shake them to get them out to break the ice off".

Plaintiff's credibility

[9] While I do accept that there was, as described by the plaintiff, a "little bit" of ice which "stuck" the basket to the side of the freezer in some way, I have found the plaintiff to be less than forthcoming in many areas of her evidence, particularly where there otherwise seemed to be no reason why she would adamantly contest as significantly different something which appeared to me to be obviously not. Thus, the conclusions that I reach are based upon a consideration of where the probabilities lie in an objective analysis of all of the evidence: see Camden v McKenzie [2008] 1 Qd R 39 at 48-49 [34]-[35]. An example of that was her persistence in attempting to distinguish between the tasks to be carried out when replenishment of stock (including ice creams) was required and when a planogram needed to be implemented (including ice creams). Although they were slightly different tasks, that difference only arose because the planogram required the ice creams (and such like) to be placed in specific baskets in specific areas of the freezer. There really was no other difference. In both: individual ice creams (and the like) needed to be moved; it was necessary to remove the baskets in order to "top up" those baskets from the boxes containing the additional supplementing items below them; it was necessary to pull back the covering lid of the freezer before beginning any task in the freezer itself; and, adopting Ms Oats' evidence, there was ice to be seen in the freezer itself.

[10] What the plaintiff appeared to project was a statement of her position based upon what she viewed as a significant difference between implementing a planogram for ice cream stock and replenishing ice cream stock. It is also concerning that she originally denied that she was required to do either prior to the relevant incident, whereas later on, in cross-examination, she conceded that she "did not remember" whether she had completed a planogram change of products or had conducted product replacement prior to the incident. This was in contrast to her original adamant denials and, clearly, to what she had conveyed to Mr Fogg (the expert engineer called by the

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plaintiff). The plaintiff's written submissions, repeated orally, sought to explain any difficulties as due to the plaintiff being a person for whom English was not her first language. But I did not detect any real problem the plaintiff had with expressing herself in an understandable way in English. Furthermore, I do not accept that she should "not...be held to the same requirements of accuracy in relation to reporting that might otherwise apply". She appeared to me to be fully comprehending of what were the material aspects of her case and how she wished to present them in evidence, particularly before she was confronted with explaining them in cross-examination.

[11] I also found her answers concerning the "change" of shift hours perplexing. She appeared to relate it to some deliberate strategy on the part of the defendant, although it was not explained by her why the defendant would take that as some kind of perverse step, rather than simply making a change which involved a reduction of hours offered to her. This is particularly so where she had previously requested more flexible working arrangements by her letter dated 22 July 2012. Despite that, I do not find that the difference between her evidence and that of Mr Michael Wheeler, a relief store manager as at the date of the incident, to be of adverse significance for her. His evidence concerned the writing of the resignation letter by the plaintiff, dated 26 October 2012, which was typed up by him. Mr Wheeler asserted that the information contained in the letter was directly provided by the plaintiff (namely, that the plaintiff wanted to travel overseas with her husband for an extended period of time). The plaintiff, for her part, stated that she complained about the lack of work available to her and had requested further hours and that the failure by the defendant to grant her those hours, which created conflicts between her work and her ability to care for her children, was the real reason behind her resignation. The plaintiff's evidence was to the effect that Mr Wheeler had expressed the view that, for long term good relationship purposes of employment, the plaintiff should not agitate that particular matter. Although Mr Hanlon provided evidence that he was approached by the plaintiff who advised him that she (the plaintiff) had resigned as she was going overseas ? and in which there was no discussion about any loss of shifts ? the conversation, in my view, was fleeting and does not in any way undermine the conclusion that I have reached. I do find it helpful that in the last of the expert medical examinations (by Dr Steadman on 17 September 2014) she stated she resigned because "her hours were being reduced". In judging the credibility of Mr Wheeler, I have considerable doubts about the accuracy of his recollection if only because of his new found memory concerning the place where the plaintiff had said that she was travelling. In the end, I do not base my decision on the plaintiff's credibility on those circumstances surrounding the reasons for her resignation.

[12] Nevertheless, what also concerned me about the plaintiff was her very belated disclosure of her business operations concerning Coco & Co. She only disclosed this, initially, during cross-examination, even though she had a then current Australian Business Number ("ABN"): see Exhibit 19. This is despite the fact that at the beginning of trial the usual certificate under r 226 of the Uniform Civil Procedure Rules 1999 ("UCPR") was filed on her behalf. While the evidence finally, after many

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reappearances by the plaintiff, showed that the business was unproductive in financial terms, the concerning aspects in particular for me were not only that documents were first disclosed during the trial but also that it was contrary to the initial evidence she gave to the effect that any interest she had in it in terms of advertising or publicity had dissipated (and was contrary to later evidence demonstrating that she continued her selling efforts right up to the end of 2015 and the beginning of 2016 and that up to "a month ago or two months" before trial there was still an automatic debit to pay for her website through Big Cartel). She had also attended markets in an attempt to generate income for the business, as well as offering product online and via a store on the Gold Coast.

[13] Accordingly, on such issues as her differences in recollection as against Ms Oats about implementing a planogram or undertaking replenishment of stock, where it is contradicted by the evidence of Ms Oats, I reject the plaintiff's evidence on such a matter. I am also concerned about whether the plaintiff "would" have followed any instruction or warning that was directed exclusively to planograms (or even to both those and replenishments). My conclusion is that, on balance, it would have made no difference. If it is open to look at other than prior or contemporaneous events, then I am fortified in this by her apparent lack of attention to the instruction and training she had been given, and acknowledged, prior to the second (later) incident which involved opening the door of the other freezer but in which, as "it was stuck", she "hurt (her) back again", although not fully examined in evidence. That is, there was no attempt by her to provide an initial force and, if finding it was stuck, seek assistance. The plaintiff simply described it as a "normal" task or duty for which she had been "given instruction and training". Whether that later incident bears on any legal liability will be discussed later.

Training manuals and written work procedures

[14] The plaintiff's evidence was to the effect that she had been supplied with a Learner Handbook (part of the Trial Bundle, Exhibit 3) which related to handling hazards and that one of those hazards was sudden or jerky movements. She had also undertaken step-by-step training when she commenced work with the defendant.

[15] She further admitted that she undertook an orientation program and training in January 2010 before she started and that she did a further (8 hour) online course (being an iLink course on working safety which covered the lifting and the handling of items). She also acknowledged that there were "activity cards" at the workplace and that such cards made it clear that, even with replenishment of stock, employees were to follow safe handling practices. The Targeted Replenishment card acknowledged by her became Exhibit 13. Though the plaintiff argued that the implementation of a planogram was "not an activity of replenishment", it is clear from her acknowledgement in further cross-examination on that issue that, although she persisted with that denial, the actual tasks involved were strikingly similar, if not identical ? which I find as a relevant fact.

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[16] The Learner Handbook, in dealing with what were described as "General Manual Handling Hazards", referred specifically to the "manual handling hazard" of "sudden or jerky movements": at p 12. The identified "awareness" for the employee for that hazard was to note that the "postural (back) muscles are usually slower in their response than other muscles, so sudden or jerky movements can place unexpected strain on your back and lead to injury". On the same page, under the title "Hazards in the WorkCover Environment", reference is made to hazards in the work environment including "Climate or Temperature conditions", stating that when "working in cold temperatures such as a chiller (cool room) and freezer, the risk of injury is increased". Although that associated entry is not directly applicable to the freezer in question, the introduction made specific reference to such hazards as including "Climate or Temperature" conditions.

[17] The Targeted Replenishment card (Exhibit 13) stated that the employee should "(a)lways follow manual handling procedures".

[18] The evidence of Mr Pickrell showed that he saw no difference between the safety principles in the task for replenishment of stock and for implementing a planogram. Further, Mr Pickrell, when shown Exhibit 13, stated that it was a document which was hung on that part of the wall at the Labrador BP "below the rosters, so probably about 4 or 5 feet from the console area". In cross-examination, Mr Pickrell, accepting that there was no specific instruction or directions about baskets in the ice cream freezer being stuck with ice, stated that he was aware that they iced up "at the end" where the "doors" stayed open a fraction and that the baskets "could" get stuck "to the edge", although that had not happened to him.

[19] As for ensuring compliance with correct procedures, Mr Pickrell stated that, in addition to initial training, the defendant continued to monitor employees via CCTV to ensure compliance with the correct procedures and that additional manual handling training was also provided. As to such CCTV footage, Mr John Hanlon, who was the retail area manager for BP Queensland on the Gold Coast and knew the plaintiff, gave evidence that he would both attend BP sites and review CCTV footage to ensure employees were working safely, such reviews being on a quarterly basis. In addition, he stated that he observed the plaintiff in person doing her work on his sometimes weekly, sometimes fortnightly, visits to the BP Labrador, seeing nothing untoward.

[20] There was no evidence that the defendant was aware of any prior incidents or complaints of the same, or a similar type, or of injury from icing up. Mr Pickrell, in particular, stated that he was personally unaware, insofar at least as it involved BP Labrador. He also stated that if there was such an incident at another store, there would be a safety alert to "take care because this has happened to a certain person".

[21] With respect to work training, instructions and warnings, I accept that the evidence of the defendant's witnesses truly reflected that which was done ? which, in any event, differs little if at all from the plaintiff's evidence of that which she was informed about. The plaintiff's differences, both in evidence and argument, were with respect

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