A supermarket stocker has recovered substantial damages for injuries sustained as a result of being required to perform her role of repetitious handling unsafe weights at a rapid pace.
Lucy Norsgaard’s duties at Aldi’s Brassall store included unloading and stacking stock on shelves.Under a direction to break down each load and distribute it around the store in 20 minutes or less, she sustained a ruptured disc in June 2019 from a single incident of lifting and manoeuvring three trays of canned tomatoes – a total weight of 15 kg.
She executed that task – as she had done many times before – by bending at the waist to pick up a three-tray stack each holding 12 tins, with her outstretched hands and then turning her trunk to the left to take two or three steps in that direction to place the load on the designated shelf.
When on this occasion, she needed to take the third step, she felt a twinge in her back and spilt the cans onto the floor.
She presented to her GP three days later complaining of the recurrent “twinge”, which was provisionally diagnosed as “likely disc irritation”.
Ms Norsgaard recovered well on reduced working hours and physiotherapy, but following her second session at the gym in September for accident-related strengthening exercises, the pain and associated stiffness returned.
WorkCover refused to reopen her statutory compensation claim even though in October, an MRI detected disc degeneration at L4/5 level “where a posterior annular tear and mild generalised disc bulge was noted”.
She filed a claim against the supermarket operator in the District Court in Brisbane, alleging the task she had been required to perform was unsafe and that she had been inadequately trained in safe handling techniques.
Aldi denied any direction to “run a load” within a 20-minute window and asserted that adequate training had been provided. Further, it argued, by lifting the trays three at a time, she had contravened the safety directions it had, in fact, provided.
The “theoretical” component of Ms Norsgaard’s manual handling training had been conducted by requiring inductees to watch videos on an iPad and then answering questions from store manager Ashleigh Hutchinson on what they had learned.
They were also required to demonstrate safe lifting techniques to him before being signed off as proficient.
Hutchinson swore he initially worked alongside Norsgaard as her “buddy” to run loads while observing her manual handling techniques and to provide additional demonstrations and advice about any errors he observed.
He also monitored her lifting and bending technique on other occasions and, at least once early on, immediately walked over to her and pointed out something he saw she had done incorrectly.
Notwithstanding his acceptance of that evidence, Judge Nathan Jarro construed from the absence of some of Norsgaard’s training records that Hutchinson’s sign-offs perhaps demonstrated insufficient attention to training details.
Having answered “no comment” to whether or not all safety policies were “slavishly” followed, the judge also gained the impression that Hutchinson did not strictly enforce all manual handling procedures.
On that basis – and because the other employees Aldi had called testified about the training afforded only to them – he thus largely accepted Ms Norsgaard’s account of her induction and what directions she had been given.
Critical were her contentions – ultimately accepted by the court – that there had been no direction to not lift weights above 10 kg or other instruction about the maximum safe weight for an employee to handle.
Likewise, her evidence that nobody said anything to her to correct her lifting of three trays at a time.
It also emerged that there was indeed an expectation for staff to “run a load” within 20 minutes.
Hutchinson agreed that it would have been made known to the employee that the average time to break down and distribute a double-D pallet was around 19 minutes and that he would make known to staff that their performance was “not up to standard” if they could not achieve that output.
Ms Norsgaard swore – and several Aldi employees less corroborated – that she often fell short of meeting the time target and that “conversations about my speed started almost immediately upon being employed and continued all the way up to my injury”.
An Aldi “Expectation Document” also recorded the average “19 minutes per standard DD” as a staff expectation.
Despite several other employees stating that the timeframe was not strictly enforced, his honour accepted that she decided to increase the volume of stock she picked up in one lift to meet the target.
The foreseeability and probability of a risk of injury to an employee when manually handling products – including the likely seriousness of such injury – were acknowledged by the employer in its own risk management documentation concerning lifts of 10 kg to 15 kg.
On that basis, Judge Jarro had no hesitation that the employer had been in breach of its duty.
“More thorough testing of the initial training in manual handling should have occurred to ensure a proper understanding of what was being taught,” he concluded, “together with clear, explicit instructions given about the maximum weight the new staff member should lift safely by themselves at any one time, including the number of cardboard trays”.
He also found there was no proper system of monitoring how the staff performed their roles to avoid unsafe manual handling practices and that one to two trays of the product is permitted to be lifted and carried close to their body.
He rejected the Aldi contention that the employee should bear a 100% – or indeed any – contribution for her own negligence.
Expert evidence as to causation and damages produced a major divergence among experts.
Neurologist Don Todman assessed reduced flexion in her lumbar spine of 30 to 40 degrees in each direction, to which he ascribed a seven percent whole-person impairment wholly attributable to the lifting incident.
Orthopaedist John Tuffley, on the other hand, assessed a minor musculo-ligamentous strain in her lumbar spine of a 4 – 6 week duration. In his view, the posture of her back at the time the cans fell to the floor was within normal physiological limits, and he noted she was able to retrieve them without restriction.
He concluded that the pain that arose over two months after the incident was consistent with a separate lifting of weights injury at the gym that had not left her with any permanent deficit and resulted in a zero impairment rating.
Dr Tuffley’s assessment was, however, discounted by the judge because it did not take into account that Ms Norsgaard sought medical treatment and physiotherapy between mid-August and prior to attending gym in September 2019, albeit presenting only mild symptoms.
And there was no evidence that the plaintiff lifted anything like 15 kg at the gym or did anything other than “bodyweight exercises” and stretching.
“To me”, his honour observed, “it seems common sense, therefore, that, consistent with Dr Todman’s opinion, the plaintiff suffered an aggravation of her pre-existing injury rather than a new accident.”
He landed on an ISV of 8 as a basis for an award for general damages of $12,530. Past economic of $64k and loss of future earning capacity of $67k made up a total award of $162k.