Work Environments and systems of work: what is safe enough?4 June 2019 | Employer's Liability
A labour hire worker succeeded in recovering damages because the NSW Court of Appeal agreed that the low height of a pick slot did cause the back injuries suffered.
- Whether a host employer was negligent in requiring a labour hire worker to lift heavy items from a low position and if so, whether that negligence caused the worker’s injury.
The appellant was a labour hire employee whose services were contracted out as a casual picker/packer to the product distribution centre operated by Metcash Trading Ltd (the respondent).
On 1 June 2012 the appellant sustained a back injury and associated psychological injury when lifting two boxes of dog food from under a pick slot that was 1.4 metres high. The appellant brought proceedings against the respondent seeking damages for his injuries. It was noted that the appellant had a history of lower back pain and depression prior to the subject incident.
The Decision at Trial
The trial judge found that the respondent had breached its duty of care, but also found that causation had not been established. The trial judge held that the appellant’s injury was solely caused by his own actions in lifting two boxes at once. An assessment of damages and contributory negligence (20%) was nevertheless made.
The Issues on Appeal
There were four issues on appeal: whether the respondent breached its duty of care in requiring the appellant to pick from slots 1.4 metres high; whether the trial judge erred in finding that the respondent’s negligence was not causative of the appellant’s injury; whether the appellant’s damages ought to be reduced for contributory negligence; and whether the trial judge appropriately assessed damages.
The Decision on Appeal
The Court of Appeal allowed the appeal on the basis that the trial judge’s finding on causation was erroneous, but upheld the trial judge’s findings on breach and damages.
In relation to duty of care, it was established that the respondent had in place pick slots of varying heights, ranging from 1.2 to 1.8 metres. The respondent argued that it had in place a system where lighter products were stored on lower pick slots of less than 1.8 metres high. The boxes of dog food the appellant was lifting at the time weighed between 16kg and 20kg. Although the respondent argued it did not observe any systemic problems with workers lifting boxes of dog food in an unsafe manner from a pick slot of 1.4 meters, the Court of Appeal found that the risk of injury was plainly foreseeable given the box of dog food was a heavier item and the respondent had known to take steps to store lighter items on lower pick slots of less than 1.8 metres high. The trial judge’s finding that breach of duty was established was upheld.
In relation to causation, the trial judge considered that whatever the height of the pick slot, the appellant would still have sustained the injury as he would still have lifted two boxes of dog food at once due to perceived pick rate standards. The Court of Appeal set this finding aside on the basis that the appellant would not have sustained the subject injuries had he performed the same task with a 1.8 meter pick slot.
The Court of Appeal agreed with the trial judge’s decision on contributory negligence. It was found that although the appellant had no choice but to pick the heavy boxes from the lower pick slots they were placed on, he did have a choice to pick only one box at a time as he had been instructed to do so. Despite the perceived pressure relating to pick rate, this did not justify the appellant picking two boxes at a time from the lower pick slot, particularly as he had previously reported experiencing symptoms from doing just that.
The Court of Appeal also agreed with the trial judge’s damages assessment and ordered that judgment be entered for the appellant in an amount to be calculated in accordance with the trial judge’s reasons.
Implications for you
This appeal decision highlights the importance of employers & host employers having in place adequately safe systems of storage, and safe systems of retrieval, particularly when requiring workers to manually lift and move heavy items. It also demonstrates the importance of employers & host employers implementing and enforcing clear, safe lifting and moving techniques in these types of environments.