Manual handling injuries make up the largest cohort of workers' compensation claims for serious injuries. They are also usually very difficult to defend because most employers do not keep good records about the training and supervision of safe manual handling practices.
However, in Gray v Coles Supermarkets Pty Limited [2019] NSWDC 749, Coles successfully defended a claim by a labour hire worker at one of its distribution centres that would otherwise have cost it over $600,000. We explain how Coles were able to do this below.
The facts
Mr Gray was employed by Ready Work Force as a picker packer at the Smeaton Grange warehouse. At the commencement of his employment in November 2013, he underwent a two-day induction course, which included being taught how to lift boxes using 'squat' and 'lunge' lifts.
On 1 May 2015, Mr Gray picked up a 12 kilogram box containing bottles of water, which was positioned towards the back of a pallet. Mr Gray conceded that he performed the lift using the 'lunge' technique but that at the end of the lift he twisted whilst bending and holding the box instead of moving his feet as he was trained to do.
Mr Gray relied upon expert evidence from a Ms Whitby, a certified professional ergonomist, who:
- noted that if Mr Gray had pulled the box forward it would have decreased the reach distance
- stated that some damaged stock that was in the way of the box increased the reach distance
- opined that extra staff should have been employed to use pallet jacks to turn the pallets and thus remove the need to reach and lift at all.
Coles obtained expert evidence from a Dr Fairfax, a safety expert, who opined that Coles' safe operating procedure insofar as it related to lifts such as the one performed by Mr Gray was reasonable. The safe operating procedure states that workers are required to:
- position their feet close to the object
- hold the carton or object close to their body
- avoid twisting at the waist.
Dr Fairfax concluded that Mr Gray could have first dragged the box forward, rotated the box so that it faced him directly and that he, in fact, had the space to move his feet at the end of the lift.
The decision
In dismissing Mr Gray's claim, Judge Russell SC accepted Dr Fairfax's evidence that there was nothing to stop Mr Gray from performing the lift safely in accordance with the 'lunge' technique he had been taught. In respect of the pallet turning proposal made by Ms Whitby, his Honour found that Coles did not have a duty to take this precaution because:
- there was no evidence about the burden of taking that precaution, but it was clear additional workers would have been required
- putting additional workers armed with pallet jacks onto the task of turning pallets could cause additional problems including a loss of efficiency and a risk of injury
- the risk of injury could have been reduced by Mr Gray simply adopting the manual handling practices he had been trained in
- Mr Gray would still have been exposed to a risk of harm (albeit a lower one) in picking the box up without the need to reach.
Lessons learned
While courts are relatively reluctant to recommend expensive measures such as pallet turning, there are numerous cases where they have found that an employer has failed to provide refresher training; supervise workers to ensure that the practices they have been trained in are implemented; and caused workers to cut corners by placing them under time pressure.
This decision is a timely reminder that employers who can show that training in correct techniques has been provided, and that it was possible to adopt those techniques, can successfully defend a manual handling claim.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
