May 29, 2019

An appeal court has ordered a junior grocery chain to pay up on a damages assessment made against it in June 2017 for an injury to a 26-yr-old order picker.

Matthew Williams’ role at Metcash’s Huntingwood distribution centre was to pilot an electric pallet jack through the warehouse aisles stopping along to way to pick racked dry goods in a specific order relayed to him by a computer-generated voice through his wireless headset.

To gain the job, Williams denied in his labour hire employer’s application form having had any prior work injuries, workers compensation claims or medical conditions. He had in fact had several prior injury events.

When the headset voice told him an order was complete, he whizzed the two pallets attached to his vehicle to the packing bay to wrap them and the goods atop in plastic before presenting the consignment for dispatch to the awaiting IGA store.

He repeated this 8 to 10 times each work day.

Full-time employment depended upon employees meeting the “engineered standard” pick rate, ie completing orders within a designated time computed by reference to the number – but not the weight – of items in the consignment.

In June 2012 – about 4 months into the job – Williams herniated a disc from lifting two boxes of Chum dog food – each weighing 15 kg – from a pick slot and then twisting around to load the goods onto his mobile pallet.

Williams described the mechanics of picking up each box as bending under the 1.4m high shelf and – because he couldn’t physically drag the boxes forward across the tops of other boxes on which they sat – lifting each one awkwardly from back in the slot at arm distance from his body.

He continued to work for a number of days in increasing pain before lodging a workers’ compensation claim. His condition deteriorated to the extent he could no longer continue heavy manual work.

Metcash conceded in the injury compensation contest that came before the NSW District Court that the engineered pick rate resulted in pressure on employees to increase the speed of their work most notably by lifting two or three boxes at a time rather than a single box as the company professed to mandate.

It asserted though that the “pick rate was based on the work speed of an average person allowing time for correct manual handling techniques, toilet breaks and fatigue” and that it allowed pickers six weeks to achieve a 100% pick rate.

The worker called evidence from colleagues who swore they were expected to get to 100% “within three to four weeks”, that no one ever achieved 100%  and that it was common practice to lift “more than one box of heavy items such as dog food or soft drink to keep up with or get close to the engineered standard time”.

The court avoided the pick rate controversy by ruling in June 2017 that Metcash’s system exposed workers to the risk of foreseeable in jury by placing heavy boxes on shelves so low in height that pickers were required to bend in and lift awkwardly at a distance from their body.

“In my view a back injury to the plaintiff was clearly foreseeable,” concluded Judge Matthew Dicker after 9 days of evidence and submissions.

“The defendant had established a sophisticated system of work. That system recognised the possibility of back injuries by the adoption of safe handling procedures. It involved the plaintiff being required to pack goods at what was perceived to be an efficient rate determined by it and not him. The defendant was aware of the dog food boxes were stored being on the first level of shelving below 1.4 m in fairly narrow aisles and of the limited space between the pick shelf and the pallet jack. The provision of the case hook was an indication it was aware of the need to pull heavy product forward.”

That said, judge Dicker decided Metcash should pay nil compensation because it was the double box dog food lift – contrary to a single box lift as required – that had actually caused Williams’ injury.

The order picker appealed arguing that the trial judge had “erroneously assumed that the picking up of two boxes of dog food at a time by itself would have resulted in the same injury, irrespective of the height of the pick slot”.
The appeal judges agreed.

“The finding that the negligence did not cause this injury cannot be sustained,” wrote Justice Richard White in pronouncing the lead judgment of the court.

The trial judge failed to consider that Williams “could have used a safer method of lifting that was virtually impossible with a 1.4 m pick slot and thus avoided the injury,” he reasoned.

The grocer’s challenge to the damages assessed was also dismissed by the court.

The appeal court ruled that Metcash must pay the damages assessed by the trial judge at $520k less 20% being the proportion of responsibility that Williams should himself bear by lifting two boxes at once contrary to his employer’s direction and less a further 20% because of the role of the labour hire company.

Williams v Metcash Trading Ltd [2019] NSWCA 94 Meagher JA, White JA and Simpson AJA, 3 May 2019

Categories: Personal Injury , Litigation & Law Practice , Order Picker

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