Written by Peter CarterSeptember 28, 2016
An Eritrean migrant injured in the course of order picking duties at the Fresh Foodies’ Larapinta distribution centre has defeated his employer’s security for costs application and set up an appeal as the final chapter in his marathon litigation.
A 54-year-old electrician, Berhane Berhane, arrived in Australia in 2008 with his wife and children but because he could not get accreditation worked as a cleaner in hotel and completed a forklift operating ticket and a warehouse logistics training course.
He started with Woolies in August 2010 and in June 2011 – when assembling his second-order for the day – felt pain in his left shoulder later diagnosed as bursitis.
His role required the collection and assembly of at least 15 orders by repetitively “picking” items of up to 16 kg per 8 hour shift – at least 2,160 manual transfers – with only one 30 min break and another for 10 mins.
Pickers operated electronic pallet jacks and took instructions by following a programmed headset voice guide, as to what goods to pick and then place – “nice and neat” – on pallets.
To ensure a brisk pace, the grocery giant had implemented “a time and motion study” and established an “assessment system” that scored workers on the completion rate for each order.
Only those who met speed-of-work expectations received a 100% rating. Casual workers with a less than perfect ranking would be sent home first when things got slow.
Fearful of losing his job, Berhane “felt compelled to work fast” by leaning across his pallets rather than walking around, transferring more than one item at a time and by missing breaks.
His workers’ compensation claim referred to a single injury to his shoulder and his Notice of Claim described it as having occurred over a period of months.
Woolworth’s refused to comply the Notice of Claim because of that discrepancy, an objection once again rejected against the same employer by District Court Judge John McGill in August 2013.
A claimant is “not confined in the pursuit of a claim for damages by the precise semantic description of the injury in the notice of assessment,” he emphatically ruled “so long as it is clear that the notice of assessment and the notice of claim (or subsequent statement of claim) are referring to the same injury”.
Moreover it is “unarguable” – noted his honour – that the particular event described in a notice of assessment as having giving rise to the injury, prevents a claimant relying on a different event as an injury’s cause in pleadings or in a notice of claim.
Woolies’ conduct was considered so unreasonable that Judge McGill ordered it pay Berhane’s costs and issued a stern warning that if the same point is bought before him again, the pig-headed employer taking it will be ordered to pay them on an indemnity basis. If dissatisfied, any recalcitrant should “put up [an appeal] or shut up,” he wrote.
That issue lost to it, Woollies maintained its rage in store for the December 2015 trial.
Berhane relied on safety engineer Brendan McDougall who observed during an inspection of the Larapinta operation that order assemblers would frequently “lift excessive weight at a reach away from the body” for example into the centre of the loading pallet, mostly from floor, waist and shoulder height level.
He observed many workers apparently in a rush to get their job done taking shortcuts – just like Berhane claimed he did – reaching across a pallet and carrying too heavy items at once.
Most of his observations were verified by the company’s own “job dictionary”.
The heaviest items were fruit and vegetable crates but all roles, McDougall observed required “repetitive squatting, forward, upward and downward reaching; repetitive gripping and occasional twisting of the spine to reverse the machine”.
He was emphatic that the system was unsafe and suggested limiting stacked pallets to a height of 1400 mm, reducing cartons to a maximum weight of 10 kilograms, more rest pauses and the use of carton picking hooks to pull cartons to the front of a pallet.
Woolies’ expert, Dr Frank Grigg, disagreed with much of his analysis.
In the view of Judge Brian Devereaux, the assessment system of itself did not create a hazard, rather the injury risk arose from “the number and style of manual transfers required during a shift”.
The grocery giant’s response to that risk – teaching techniques by way of a 90 minute Move 4 Life induction seminar and 3 days of one-on-one training – might have been sufficient, he observed, if the techniques were “diligently implemented”.
That clearly did not occur. What was trained in at induction was not enforced in practice.
Reaching away from the body and lifting multiple items at once were commonplace and the 100% assessment target although not itself unreasonable “was likely to encourage the taking of short cuts”.
The failure to implement and enforce the safety standards to which it aspired meant Woolies had breached its duty.
Berhane’s claim nevertheless failed because in his honour’s view – based on the opinion of orthopaedist Chris Blenkin that the worker would have aggravated his pre-existing shoulder condition regardless – the injury was not caused by any failure in enforcing the safety system.
The disappointment of that loss was to some extent assuaged by the Court of Appeal last week when it refused the employer’s application for security for costs in relation to his forthcoming appeal given the impecunious Berhane “has at least an arguable case” that the ruling should be overturned.
“In particular it is not unlikely that the trial judge has erred by failing to consider whether the appellant had a claim upon the basis of acceleration of the onset of his condition,” observed.
The matter will proceed to appeal in the coming months and if successful Berhane will likely be awarded the $231k assessed as his loss at the December 2015 trial.
Woolworths Ltd v Berhane  QCA 238 Philip McMurdo JA 19 September 2016
On 8 August 2017, the Court of Appeal allowed Berhane’s appeal on the basis foreshadowed by Justice Philip McMurdo. Appeal Justice Phillip Morrison corrected the trial judge’s error in the interpretation of Dr Blenkin’s evidence.
In his view – while the countermeasures engineer McDougall had recommended may not have prevented the shoulder condition from ever occurring – “properly understood” Dr Blenkin’s testimony implied that the absence of those measures had accelerated it by several years and prevented him from working to age 67. The appeal judges removed the final obstacle to the worker receiving his $231k.