09 August 2017

After his claim was initially dismissed by the District Court, Mr Berhane was today successful in his appeal to the Court of Appeal.

Mr Behane alleged he sustained a left shoulder injury over a period of time from about August 2010 to June 2011 while working with The Fresh Food People as a casual order picker.

There was little doubt Woolworths breached its duty of care to Mr Berhane in the circumstances – it required him to lift excessive weights at reach. Specifically, the evidence at trial demonstrated Mr Berhane performed up to 2,160 manual transfers each shift of weights up to 17 kg (with ‘a significant percentage’ of cartons weighing 13 – 17 kg) while working in cold areas measuring bleak 5°C and 0.7°C at speed (due to tough performance targets).

The issues on appeal were a) whether the breach by Woolworths’ caused Mr Berhane’s injury and b) whether the risk of injury was foreseeable.

At first instance, the trial judge found that the precautions identified would not have avoided the injury. Specifically, Devereaux SC DCJ found at [102]:

Dr Blenkin’s opinion, which I accept, and I have referred also to Dr Macgroarty’s relevant evidence, is that the measures recommended in the Intersafe reports would not have altered the progress of the plaintiff’s injury. That is, given the plaintiff’s starting condition, performing the repetitive manual transfers involved in the order picking role, would inevitably cause the injury the plaintiff suffered.

However, after close analysis of the medical evidence, the Court of Appeal overturned this finding. It held at [50] that proper interpretation of the opinion of Dr Blenkin, consistent with the opinion of Dr Macgroarty, was that ‘whilst the institution of the [precautions] would not have prevented the rotator cuff bursitis from ever occurring […], had the [precautions] been implemented the acceleration that was actually suffered would have been prevented’. In other words, the Court of Appeal found that Woolworths’ breach caused an acceleration of the pre-existing degenerative condition.

The trial judge found Woolworths did not owe a duty of care to Mr Berhane in the circumstances. His Honour stated at [89]:

The effect of the evidence of Dr Blenkin and Dr Macgroarty is that the work activities did not present an appreciable risk to a person who did not have the plaintiff’s condition. But that opinion is sustainable even if the plaintiff’s condition were typical for his age.

The Court of Appeal also overturned this finding. Although Mr Berhane was pre-disposed to the development of bursitis, he was part of the cohort of 10 to 15% of the population who have rotator cuff disease (and are similarly pre-disposed). As the pre-disposition was sufficiently common in persons of the same age and the risk of injury to an employee in that cohort was foreseeable, the risk of injury to Mr Berhane ought to have been foreseeable by Woolworths, particularly as a sophisticated employer.

A cross-appeal by Woolworths against the trial judge’s quantum assessment also failed.

Click here for a full copy of the decision.

 

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