Queensland Workers’ Compensation – Worker injured whilst moving pallets of chicken feed awarded $824,647.48: Welsh v Biggin Pty Ltd (No 2) [2023] QSC 211

The Supreme Court of Queensland has recently considered a claim for damages arising from an incident whereby a worker, under time-pressure, was injured whilst moving pallets of chicken feed.  

Background

The Defendant, Biggin Pty Ltd carried on business selling chicken feed and chicken feeders from a rented warehouse in Townsville. The landlord of that premises also operated from the warehouse.  

 

The Plaintiff, Mr Paul Welsh, was employed by the Defendant on a full-time basis and was primarily responsible for duties relating to customer service and sales, management of stock, packing online orders prior to dispatch, warehousing, and construction of chicken feeders.  

 

The Plaintiff alleged that on 8 October 2018, he sustained a tendon tear of the right quadriceps, resulting in physical and psychological impairment, as a result of the application of high force to quickly initiate a pallet jack’s movement when that jack was stacked with laden pallets. According to the Plaintiff, the requirement that this employment duty be performed quickly was to avoid obstructing the warehouses’ landlord from accessing the premises whilst he was also working. The alleged mechanism of injury was not observed by the Plaintiff’s employer.  

 

The Plaintiff alleged that the risk of musculoskeletal injury as a result of applying such high initiating force when operating the pallet jack was a risk that ought to have been identified by the Defendant and eliminated, or at least mitigated against, and that this had not occurred.  

 

The Defendant disputed that the injury occurred in the workplace as alleged, that the injury was resultant from a breach of the duty of care owed to the Plaintiff, that liability should be imposed upon it, and the quantum of damages.  

Decision

Henry J identified the determinative issues as to liability as: –  

a. Whether the injury incurred as alleged; 

 

b. What, if any, duty of care did the Defendant have to take precaution against the risk of such injury; 

 

c. Whether the Defendant breached its duty of care; and 

 

d. Did the breach cause the injury. 

 

Despite criticisms to the contrary, Henry J considered the Plaintiff to be an honest and generally reliable witness.  

 

As to whether the injury as alleged, Henry J considered the available medical evidence, evidence from an expert witness engineer, and the Plaintiff’s evidence, concluding that whilst the right quadriceps tendon tear may have been aggravated by other tasks completed subsequent to the subject incident on the date of incident, the injury was caused by the Plaintiff’s application of high force when initiating the movement of heavily laden pallets with the pallet jack.  

 

Henry J opined that a reasonable employer would have identified that using a pallet jack to move laden pallets was a hazardous task, in circumstances where a high force was to be applied to initiate its movement. His Honour went on to assert that a reasonably prudent employer would therefore have taken precautions against such risk, by providing instruction about the inherent risks of performing the task at pace, including providing warning against the use of such force, as well as training in the application of gradual and gentle initiating force.  

 

With respect to breach, Henry J noted that no evidence was lead that confirmed that the Defendant undertook any risk assessment, let alone identified the risk of injury or took precautions against it. As opined by Henry J, “there was no evidence of [the Defendant] having any relevant system of workplace safety.” Perhaps unsurprisingly, Henry J concluded that the Defendant’s conduct, amounted to a breach of the duty of care owed to the Plaintiff.  

 

Henry J was unconvinced by submissions made on behalf of the Defendant that the Plaintiff’s condition was related not to the subject incident, but to the Plaintiff’s pre-existing pathology. Instead, his Honour opined that it was the application of force when initiating movement of the jack that caused the injury.  

 

Having established liability against the Defendant, Henry J undertook an assessment of the quantum of damages. Awards of $238,889.25 and $384,219.36 were made for past and future economic loss respectively. Further awards were made for the loss of past and future superannuation, past out of pocket expenses, and future treatment expenses. The total award of damages was $824,647.48 exclusive of the WorkCover refund.  

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