In Berhane v Woolworths Ltd  QCA 166, the plaintiff appealed a decision from the District Court in Brisbane, claiming damages for personal injuries. At first instance, the 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 his employer. The central issue for the appeal was the finding on causation.
Berhane was a casual employee who worked as a picker in Woolworth’s warehouse, which involved lifting and stacking cartons of various weights and sizes at various heights. In the course of the day, he would perform repetitive lifting, stretching, twisting, reaching and squatting movements up to 1500 times a day.
Berhane had a preexisting shoulder condition called rotator cuff tendinopathy, which was aggravated and accelerated by the performance of his work. Following that, he developed a further injury called a rotator cuff bursitis. At the time he undertook his initial fit for work asessment, he was not aware that he had a pre-existing condition, and did not have a special vulnerability to the injury he suffered.
Berhane continued to experience pain 2 years following the initial diagnosis.
Breach of duty
The primary judge found the system of work in place gave rise to a risk in injury for the following reasons:
- Employees were given a job completion time, and were asessed on the number of tasks completed and their daily average. Employees with the least impressive percentage would not be given work and be sent home. The plaintiff and fellow workers would often take shortcuts which risked their safety for the sake of keeping up their daily percentage.
- Employees were given a worksafe induction and received training, however these practices were not followed nor enforced.
- There were few managers, with limited capacity to observe up to 100 workers at a time.
- If an employee considered it unsafe to stack a carton, the pallet would be reassigned to someone else.
Therefore, Woolworths had breached a duty to implement a safe system of work.
Woolworths submitted that it had no duty of care to the plaintiff, as he had not made his condition foreseeable to them. However, Morrrison JA rejected this argument, stating:
- The plaintiff had a condition that was a foreseeable risk affecting 10-15% of the general population;
- Therefore, Woolworths had a duty of care that should have been broad enough to accommodate employees with that condition.
Woolworths contended that the breach of duty did not cause the injury, as:
- If measures such as closer supervision had been implemented, they could not have prevented the plaintiff’s injury
- It was inevitable that given the plaintiff’s preexisting condition that performing manual work would cause injury
- Evidence did not support the finding that the condition was aggravated and accelerated by the work activities
Morrison JA did not accept Woolworth’s contention on causation, finding:
- That medical evidence supported the conclusion that repetitive workplace activities aggravated the preexisting condition that the plaintiff suffered.
- That proper supervision would have ensured that the acceleration of the plaintiff’s condition would not have occurred (the medical evidence was that the plaintiff’s condition had been accelerated by years), and he would not have developed a further condition of bursitis.
Woolworths made a general challenge to the plaintiff’s claim, contending that Berhane was not a credible witness as he displayed overprotective behaviour throughout the examination of his arm, and was considered to not exhibit a true range of motion during examinations.
Morrison JA did not accept the general challenge, considering the plaintiff’s case nonetheless was supported by the evidence of medical experts.
Morrison JA, Dalton J agreeing, ordered $231, 200 and costs to the plaintiff, asessing the plaintiff’s potential fututure earnings.
Takeaways from this case
Where an employer has breached their duty to provide a safe standard of work, it will be difficult to establish an employee’s work-related injury was not caused by a breach of duty, even where:
- The employee did not give the employer notice that they had a pre-existing condition,
- The employee had passed an initial fit for work asessment; and
- It was likely the employee’s condition would worsen with time.
Employers should strive to employ a safe system of work broad enough to capture as many risks as possible. This might include:
- Ensuring higher levels of supervision,
- Not only providing safety training and policies, but enforcing them,
- Having systems in place that cater for segments of the population that may be at greater risk of injury than others; and
- Encouraging a workplace culture where safety comes first.
This case demonstrates it is not enough to argue an employee had a pre-existing condition that was not known to the employer, as it is not likely to be enough to absolve the employer of their duty of care, nor enough to break the chain of causation.
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