31 March 2017

That was the expensive lesson learned by Ms Whitley, whose claim was dismissed by the District Court earlier this month with costs. Cooper Grace Ward acted for WorkCover Queensland in the successful defence of the claim.

Ms Whitley sought damages for personal injuries (a wrist ganglion) allegedly caused by scanning a 4 kg bag of dog food at an Aldi Supermarket. Her pleaded case was that she was unable to utilise Aldi’s ‘paddle technique’ to scan the bag due to the register having a design defect. More particularly, it was alleged that there was a step up and step down between where the conveyor belt ended and the scanner began.

At the trial of the matter, Ms Whitley made several attempts to amend her statement of claim to make her pleaded case consistent with expert opinion she had commissioned. Her own appointed expert opined that Ms Whitley could not safely scan the bag due to the forces involved in moving it and the need to overreach to take hold of it. Such matters were disputed and contrary to the defendant’s expert opinion. Much of the opinion of Ms Whitley’s appointed expert was excluded on the basis that the factual matters within it had not been established.

Initial amendments to the statement of claim were not opposed.

When giving her evidence, Ms Whitley revealed that she had difficulties performing the scan due to a number of other issues, including the bag sometimes tearing on the scanner. This led to a further attempt, on day three (of a trial originally scheduled to run three days), to amend the statement of claim again. These amendments were opposed and not allowed, the Judge forming the view that a point must come where the pleadings crystallise.

In the end, Ms Whitley’s case ended where it started – she allegedly could not use the paddle technique due to the step up and step down. The Court found no such step up or step down existed. On that basis, the case simply failed. It did not matter that other observations had been made about the scanning technique by Ms Whitley or others, because such matters had not been pleaded.

The claim also failed on causation grounds – the Court was not satisfied that the work event caused the ganglion.

Had Ms Whitley been successful, his Honour Judge Koppenol would have awarded her $14,465. He noted that ‘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.’

 

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