DISTRICT COURT OF QUEENSLAND
CITATION:
Whitley v Aldi Stores [2017] QDC 50
PARTIES:
NICOLA WHITLEY
(plaintiff)
v
ALDI STORES (A LIMITED PARTNERSHIP)
ABN 90 196 565 019(defendant)
FILE NO/S:
DC No 1531 of 2015
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
14 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
27 February-3 March 2017
JUDGE:
Koppenol DCJ
ORDER:
1. Plaintiff’s claim dismissed.
2. I will hear the parties as to costs.
CATCHWORDS:
TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINICIPLES – LIABILITY GENERALLY AND DAMNUM SINE INJURIA – whether the plaintiff’s case on liability was made out on the balance of probabilities.
WORKERS COMPENSATION – ENTITLEMENT TO COMPENSATION – PARTICULAR INJURIES, DISEASES AND DISABILITES – FINGER AND HAND INJURIES – whether claimed injuries caused by workplace incident, natural occurrence or pre-existing injury – whether the incident was found to have caused the injury.
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – whether established
Fox v Wood (1981) 148 CLR 438, applied
Workers’ Compensation and Rehabilitation Regulation 2014
COUNSEL:
AC Harris for the plaintiff
S O’Driscoll for the defendant
SOLICITORS:
Shine Lawyers for the plaintiff
Cooper Grace Ward for the defendant
Introduction
Mrs Whitley worked at the Aldi store at North Lakes, Queensland. She had worked there since 2010. On the afternoon of Easter Saturday, 30 March 2013, she was performing checkout register duties in the store when she allegedly suffered personal injuries.
Her claim before the Court alleges that:
(a) as she was pulling a 4kg bag of dry dog food (the bag) from the conveyor belt at her left across the short distance to the scanner in front of her, she felt a sharp pain in her left wrist—which caused her to cease work;
(b) as a result of the incident at work, she suffered a left wrist ganglion (a type of soft tissue cyst) which, despite surgical excision and other treatment, has left her permanently unemployable because of the ongoing pain and discomfort; and
(c) her injuries were caused by Aldi’s negligence, breach of its duty of care and/or breach of the parties’ contract of employment.
Mrs Whitley (who is now 40 years of age) claims damages of $332,794.29 plus interest.
For the reasons which follow, I have concluded that Mrs Whitley’s claim has failed to be established on the balance of probabilities.
Liability
As ultimately refined (and articulated by Mr Harris in his closing submissions: T5-26, l 27-T5-28, l 2), Mrs Whitley’s case on liability was based upon the PLU lists, the paddle grip technique (which was said to require overreaching) and the step up. They were also the relevant points raised in Mr Harris’ written submissions (pages 5-7) dated 3 March 2017. They direct attention to paragraphs 7A, 9, 13A and (perhaps) 13B of the Amended Statement of Claim (ASC). Some other allegations were particularised in paragraph 15—but particulars amplify and explain allegations in the pleadings; they cannot remedy the absence from a pleading which fails to contain all the facts material to the cause of action alleged. So, for example, particulars about alleged failures of training, instruction, warning, supervision and so on are irrelevant because they were not supported by a pleaded material fact.
PLU Lists: Mrs Whitley alleged that 4kg bags of dry dog food were not on Aldi’s PLU (Price Look-Up) lists and therefore she had to manually scan the bag (see ASC paragraph 7A). Those lists were kept at the registers and enabled the operators to check out heavy or bulky products which had a PLU code on them by entering the code on the operator’s keyboard—rather than by manually scanning them.
There was a dispute at the trial about whether or not those 4kg bags did have a PLU code on them in March 2013. However, it is not necessary for that to be determined. That is because, on Mrs Whitley’s case, the cause of her injury was not the absence of the code but rather Aldi’s allegedly defective manual handling system. This fundamental distinction was appreciated by Mr Harris. During his closing submissions, I asked him “what flows from” paragraph 7A of the ASC. He replied (T5-27, l46-T5-28, l 2) that:
“It then becomes an issue of whether or not she was able, in accordance with the alleged training to use the paddle technique. And we say the paddle technique could not be used … because of the step up and step down, but also because of the reach issue.”
It was common ground that Mrs Whitley had been trained in the use of the paddle grip technique to scan grocery items at the store registers.
The paddle grip technique, the overreach and the step up: Mrs Whitley said that she did not use the paddle grip technique to scan the bag. That technique involved the operator’s placing a hand behind the product on the conveyor belt and then pushing it across the flatbed scanner. The ASC alleged (paragraph 9) that the paddle grip technique could not be used because most products could not be “pushed across … a step up” at the end of (or from) the conveyor belt, and a step down to the scales, without over-extending the operator’s arm to place a hand behind the product. The alleged step down ultimately ceased to be relevant because on Mrs Whitley’s own evidence, her injury had already been sustained before the bag reached the step down.
Paragraph 13A of the ASC alleged that because of the matters pleaded in paragraph 9 and the distances from Mrs Whitley’s left shoulder to the bag, the paddle grip technique could not be used on the bag because it would have required her to bend at the waist and overreach—thereby exposing her to the risk of musculoskeletal injury.
Thus, the operation of paragraphs 9 and 13A is relevantly based upon the factual premise of the existence and effect of the subject step up. If that step up did not have the pleaded impedimentary effect, it is otherwise implicit in the ASC that the paddle grip technique was in fact safe to use.
Paragraph 13B of the ASC alleged that for a number of reasons, Mrs Whitley could not reposition her chair so as to be able to use the paddle grip technique. However, that allegation is irrelevant because it was not the position of the chair that was said to prevent the use of the technique but the presence of the alleged step up at the end of the conveyor belt.
Mrs Whitley gave evidence (T1-47, ll 32-39) that although she had never tried to use the paddle grip technique on a 4kg bag of dog food, that technique could not be used because the bag was too heavy to push across and she could not reach to its far end. Remarkably, she did not give any evidence in her examination in chief about the alleged step up.
During cross-examination (T1-84, l 37), I asked Mrs Whitley: “How big is the step up?” She said: “It’s a small – it’s a very small step.” Mr O’Driscoll then asked her whether the step up meant that the bag of dog food could not pass across it. She replied (T1-85, ll 4-6, 18-20) that the step up had a very sharp edge and that if you didn’t “lift, grab, drag” the bags of dog food, “they could very easily split open on that edge.”
Later, I asked Mrs Whitley (T1-87, ll 40-47):
“HIS HONOUR: So is it the case – is it your evidence that the reason you didn’t use the paddle grip technique on the bag of dog food was because you were concerned the bag of dog food might split open?---That is part of it. It is – it was not possible to use the paddle technique to push the bag of dog food, for the reason of not reaching the edge of – the end of the bag to be able to, the fact of the sharp ledge – you would have to grab – lift slightly away from that sharp edge – the step up, as well as there were other products around that, so therefore, you would never attempt to try and do a paddle technique on a bag of dog food.”
The only expert evidence about the step up was given by Dr Paul C. Carnavas. He was called by Aldi. He had a bachelor’s degree (with first class honours) in mechanical engineering and a PhD in mechanical engineering from the University of Queensland and had been a director of Forensic Engineering Consulting Pty Ltd for 10 years. His relevant expertise and evidence were not challenged by Mrs Whitley.
Dr Carnavas examined the subject register checkout in 2015 and made detailed measurements, other calculations and observations. He also tested whether the so-called step up would inhibit a 4kg bag of dry dog food from traversing across from the conveyor belt to the scanner. He concluded that (a) the step up was “about half a millimetre”, (b) a 4kg bag of dog food was able to traverse the 0.5mm step up “without any perceptible change of force”, (c) the edge was not sharp but had a “rounded” or “blunt” edge, (d) there was “no restriction to movement of the bag as a result of passing over that edge”, (e) it was not possible with the sharpness or the ends that he observed to cut the packaging of the dog food as “[t]he bag would bridge the gap in any respect”, and (f) even after dragging the bag over the metal edge “in the order of 10 times”, it never caught or cut (T5-5, ll 40-44; T5-6, ll 28-44; T5-7, ll 2-3, 16-18; T5-8, ll 27-33; T5-9, ll 40-41).
Mr J. O’Sullivan (physiotherapist and ergonomist) prepared detailed reports and gave evidence about the particular force that would have been required by an operator to move the bag across from the conveyor to the scanner. However, he was not asked to (and did not) express any professional opinion about the step up.
I accept Dr Carnavas’ evidence and find that (a) the subject step up was about 0.5mm, and (b) it would not inhibit the movement of a 4kg bag of dog food from the conveyor belt across to the scanner.
Those findings have the consequence that the pleaded allegations that the paddle grip technique was unsafe for use on a 4kg bag of dry dog food—which was the factual basis for Mrs Whitley’s claim—must be rejected.
Mrs Whitley’s allegations (which were raised only during the trial) about the sharp edge and bag-splitting were not pleaded and are therefore irrelevant. In any event, in light of Dr Carnavas’ undisputed and independent evidence to the contrary, those allegations cannot be given any weight.
In addition, Aldi store manager Ms C.R. Lymbery gave evidence. She was an experienced store manager who had worked on the very register that is complained about in this case. I found Ms Lymbery to be a very impressive witness whose evidence I accept. She said that (a) she had used the paddle grip technique to scan 4kg bags of dry dog food and had never had any difficulties doing so, (b) there was no difficulty moving items from the end of the conveyor belt across to the scanner, (c) she had never had a bag of dog food split open because of the sharpness of the edge, (d) the edge was not sharp, (e) there was no step up at the end of the conveyor belt, or a step down to the scales, or a step up from the conveyor belt over which most products could not be pushed, without an operator’s overextending her or his arm behind the product (see T4-68, ll 3-6, 30-31; T4-71, ll 9-11; T4-73, ll 35-47; T4-78, ll 13-14; T4-89, ll 6-16).
Mrs Whitley’s pleaded allegations that Aldi was negligent and/or breached its duty of care and/or breached the relevant contract of employment were not made out on the balance of probabilities.
Although that is sufficient to dismiss this claim, it is appropriate that the allegations of causation also be considered.
Causation: Three medical specialists provided written reports and gave evidence at the trial: Dr M.W. Robinson (Hand and Upper Limb Surgeon), Dr S.G. Coleman (Hand and Upper Limb Surgeon) and Dr R.J. McCartney (Occupational Physician). Mr Harris submitted (T5-42, ll 22-28) that (a) Dr McCartney is an occupational physician and “neither examined [Mrs Whitley] directly, nor conducted any of his own testing of the popular operation” and (b) the evidence of Drs Coleman and Robinson “should hold sway, that causation in respect of the defendant’s breach is made out.” In his written submissions (page 8), Mr Harris said that “the opinions of the experts with the more particular specialty should prevail.”
Mr Harris submitted (pages 7-8) that Dr Robinson said that there was “a greater than 50% chance” that Mrs Whitley’s ganglion was caused by the workplace incident. In his report dated 10 December 2014, Dr Robinson said (page 8) that it “is likely” that the ganglion developed from the workplace incident. However, at the trial, he said that it was possible that the ganglion was present (and asymptomatic) before the workplace incident (T2-14, ll 14-15); and when asked by Mr Harris that “as between the [left] wrist fracture … of 2012 and the” workplace incident, “which was the more likely cause of the onset of the ganglion”, Dr Robinson answered (T2-15, ll 38-39) that “the incident at work is more likely to be the contrib [sic] – a greater than 50 per cent contributing factor to it.”
Mr Harris submitted (page 8) that Dr Coleman said that the development of the ganglion “was likely caused by” the workplace injury, “though he was unable to put that likelihood in ‘greater than 50%’ terms as had Dr Robinson.” In his report dated 19 January 2015, Dr Coleman said (page 3) that the fact that Mrs Whitley developed sudden pain with subsequent swelling in the workplace incident “does give some credence to the fact that it was that activity that may have strained her ligament and subsequently developed a ganglion.” He added that “[w]ithout further evidence or other history of injury at the time, I cannot ascertain any other cause.” However, during cross-examination at the trial, Mr Harris asked (T3-57, ll 8-10) Dr Coleman about his use of the word “credence” and whether he was able to “venture in legal terms whether it’s more likely or not”. Dr Coleman said (T3-58, ll 27-29) that he “can’t say it’s absolutely or 50 per cent, but it’s … consistent and, as I said, it’s not inconsistent and it’s – I can’t see any other reason that she developed the ganglion except coincidence”. Then in re-examination, Dr Coleman said (T3-61, ll 10-17) that he was “fairly hesitant about confirming 50 or 51 per cent. You know, it’s [sic it] still may have been just naturally occurring and just happened, like the right one [Mrs Whitley’s right wrist ganglion] did, without an injury.”
Mr Harris submitted (page 8) that Dr McCartney (a) expressed the view that Mrs Whitley “had not in fact sustained a scapholunate ligament injury in the [workplace] incident and (b) also advanced the theory that [Mrs Whitley’s] ganglion of the left wrist had simply come on spontaneously and coincidentally to the [workplace] incident.” Whilst Dr McCartney did say (T3-36, ll 20-25) that there was no evidence that the workplace incident caused the ganglion and (T3-36, ll 27-39) that “the most likely scenario’ was that the ganglion developed “coincidentally”, he also said (T3-27, ll 44-46) that it was “distinctly possible” that a developing ganglion was present at the time of the workplace incident.
Dr Robinson, too, was of the opinion (T2-14, ll 14-15) that it was possible that “the ganglion was there before the workplace incident”. He also said (T2-9, ll 22-27) that it was “probably representative of my experience in practice” that more than 90% of ganglions “just occur congenitally”—that is, without a prior traumatic event or repetitive use of the wrist. Dr Coleman (T3-58, ll 27-29; T3-61, ll 10-14) said that Mrs Whitley’s “predisposition” to the development of a wrist ganglion was “quite possible” as the cause. Thus, in the end, Dr Coleman was unable to say whether the left wrist ganglion was “naturally occurring” or caused by the workplace incident.
Upon analysis, Dr Robinson’s opinion was that Mrs Whitley’s left wrist ganglion could have been caused by natural occurrence, the workplace incident or her earlier (2012) left wrist fracture, He was not asked (and did not say) which of those three was likely to have been the cause on the balance of probabilities. Dr Coleman also could not say that on the balance of probabilities, the workplace incident caused the ganglion. Dr McCartney said (T3-37, ll 18-19, 31-32; T3-38, ll 27-29) that on the balance of probabilities, the workplace incident did not cause the ganglion.
I am not satisfied on the balance of probabilities that the subject workplace incident caused Mrs Whitley’s left wrist ganglion.
Conclusion: It follows that Mrs Whitley’s case on liability was not made out on the balance of probabilities and her claim will be dismissed.
Quantum
It is appropriate, however, that some consideration be given to the quantum of damages that might have been awarded in the event that liability (breach and causation) had been made out.
General damages: Dr Robinson assessed Mrs Whitley as having a 10% impairment of whole person function according to the AMA5 Guides and Dr Coleman assessed it at 8%. Mr Harris then contended for an ISV of 15 (the top of the WCRR range for a moderate wrist injury) but Mr O’Driscoll contended for an ISV of 5 (the top of the range for a minor wrist injury). As a moderate wrist injury expressly includes one with “some persisting pain and stiffness”, I regard the injury here as falling within the moderate category, but at the lower end of 10. That equates to general damages of $14,000.
Past & Future Economic Loss: Mrs Whitley claimed $61,200 for past economic loss and $219,240 for future economic loss. Although Mrs Whitley gave evidence about her pain and discomfort and the various limitations upon her use of her left wrist, it was remarkable that no medical evidence was called to support her claim that the workplace injury had caused or contributed to her economic loss.
Dr Robinson’s report dated 10 December 2014 said (page 11) that her wrist injury “is having a significant effect on [her] employment opportunities and earning capacity”—but that general comment was all that was said about that. Dr Coleman’s report dated 2 December 2014 said (page 11) that he was “unsure of her future work capacity” and added (page 12): “I would recommend referral to an Occupational Therapist or Physician for a work assessment regarding future employment.” That should be read in the context of his earlier comment (page 11) that “[i]f she does find suitable and satisfying employment involving less lifting or repetitive activities, there would be no medical reason for her not to return to the workforce.”
Mr Harris fairly conceded (T5-43, l 10) that “there are issues in relation to mitigation.” There was no evidence that Mrs Whitley had seen an occupational therapist or formally applied for any jobs or registered with any employment agencies or the like. Her employment history was limited to the work at Aldi and before that, as a cleaner, holiday park assistant manager and tuckshop convenor. She gave evidence that (a) she had made an informal enquiry about becoming a store “greeter” but had not taken any other steps to find employment, and (b) her treating physicians had previously told her that unless she could find a job that did not involve use of her hands, she would find it very difficult to return to work.
In circumstances where an injured person seeks an order from the Court that she be awarded economic loss damages of more than $280,000, it is incumbent upon that person to show that her loss is attributable to the workplace injury and that she has taken reasonable steps to try to find a job. Mrs Whitley did neither. As a result, I am unable to see how the Court could make any award for economic loss.
Past & Future Loss of Superannuation: Mrs Whitley claimed $5,508 for past loss and $23,677.92 for future loss. In light of my comments about economic loss, I would not make any award for this.
Special Damages: These expenses ($21,421.64) were paid by the statutory agencies and absent evidence about causation, need not be further considered.
All other heads of damage: Claims were also made for miscellaneous expenses ($1,000), Fox v Wood ($465) and future expenses ($5,000). The claims for miscellaneous and future expenses were not supported by any evidence about causation and need not be further considered, but it would be appropriate to make an award for the claimed Fox v Wood component.
Total damages: If Mrs Whitley had been able to establish liability, I would have awarded her the total sum of $14,465 ($14,000 general damages + $465 Fox v Wood).
Disposition
Mrs Whitley’s claim has not been established on the balance of probabilities and is dismissed. I will hear the parties as to costs.
Orders
Plaintiff’s claim dismissed.
I will hear the parties as to costs.