Australia:
How to win a manual handling injuries claim for workers compensation – Gray v Coles Supermarkets Pty Limited
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Manual handling injuries make up the largest cohort of
workers’ compensation claims for serious injuries. They are
also usually very difficult to defend because most employers do not
keep good records about the training and supervision of safe manual
handling practices.
However, in Gray v Coles Supermarkets Pty Limited
[2019] NSWDC 749, Coles successfully defended a claim by a labour
hire worker at one of its distribution centres that would otherwise
have cost it over $600,000. We explain how Coles were able to do
this below.
The facts
Mr Gray was employed by Ready Work Force as a picker packer at
the Smeaton Grange warehouse. At the commencement of his employment
in November 2013, he underwent a two-day induction course, which
included being taught how to lift boxes using ‘squat’ and
‘lunge’ lifts.
On 1 May 2015, Mr Gray picked up a 12 kilogram box containing
bottles of water, which was positioned towards the back of a
pallet. Mr Gray conceded that he performed the lift using the
‘lunge’ technique but that at the end of the lift he
twisted whilst bending and holding the box instead of moving his
feet as he was trained to do.
Mr Gray relied upon expert evidence from a Ms Whitby, a
certified professional ergonomist, who:
- noted that if Mr Gray had pulled the box forward it would have
decreased the reach distance - stated that some damaged stock that was in the way of the box
increased the reach distance - opined that extra staff should have been employed to use pallet
jacks to turn the pallets and thus remove the need to reach and
lift at all.
Coles obtained expert evidence from a Dr Fairfax, a safety
expert, who opined that Coles’ safe operating procedure insofar
as it related to lifts such as the one performed by Mr Gray was
reasonable. The safe operating procedure states that workers are
required to:
- position their feet close to the object
- hold the carton or object close to their body
- avoid twisting at the waist.
Dr Fairfax concluded that Mr Gray could have first dragged the
box forward, rotated the box so that it faced him directly and that
he, in fact, had the space to move his feet at the end of the
lift.
The decision
In dismissing Mr Gray’s claim, Judge Russell SC accepted Dr
Fairfax’s evidence that there was nothing to stop Mr Gray from
performing the lift safely in accordance with the ‘lunge’
technique he had been taught. In respect of the pallet turning
proposal made by Ms Whitby, his Honour found that Coles did not
have a duty to take this precaution because:
- there was no evidence about the burden of taking that
precaution, but it was clear additional workers would have been
required - putting additional workers armed with pallet jacks onto the
task of turning pallets could cause additional problems including a
loss of efficiency and a risk of injury - the risk of injury could have been reduced by Mr Gray simply
adopting the manual handling practices he had been trained in - Mr Gray would still have been exposed to a risk of harm (albeit
a lower one) in picking the box up without the need to reach.
Lessons learned
While courts are relatively reluctant to recommend expensive
measures such as pallet turning, there are numerous cases where
they have found that an employer has failed to provide refresher
training; supervise workers to ensure that the practices they have
been trained in are implemented; and caused workers to cut corners
by placing them under time pressure.
This decision is a timely reminder that employers who can show
that training in correct techniques has been provided, and that it
was possible to adopt those techniques, can successfully defend a
manual handling claim.
Cooper Grace Ward is a leading Australian law firm based in
Brisbane.
This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
Lawyers.
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