Burdensome precautions: What is reasonable?

27 November 2020

The NSW Court of Appeal recently reaffirmed the position that when a Defendant has provided a safe manual handling procedure, it will be considered a reasonable precaution.

In issue

  • The issue for consideration by the Court of Appeal was whether the Defendant breached its duty of care by failing to warn the Plaintiff of the risk of injury in manual handling. Further, the Court considered whether the Defendant failed to take reasonable precautions by not implementing pallet rotation, or the utilisation of pit sticks, to avoid the risk of an injury during manual handling.
  • This case concerns an appeal and a cross appeal between Defendants, yet for the purpose of this case note, only the appeal between the Plaintiff and Coles will be considered.

The background

The Plaintiff was employed as a picker packer, providing labour to Coles through a labour hire agreement between Chandler Macleod Group Pty Ltd and Coles, and at the time of the injury was working at a distribution centre. The Plaintiff was lifting a 12kg carton of bottled water utilising a lift lunge technique.

The Plaintiff’s claim was against Coles, alleging that it had breached its duty of care by failing to take certain precautions such as failing to implement a rotation system of the pallets and failing to provide the workers with pit sticks to move the cartons.

The decision at trial

The Plaintiff was unsuccessful at trial, with the primary Judge finding that no precaution pleaded by the Plaintiff was reasonable. The Trial Judge noted that even if pallet turning were implemented, the risk of harm would not have been mitigated, as the Plaintiff would still be required to manually lift and handle the carton. The Trial Judge considered in regard to s5C(b) of the Civil Liability Act 2002 (NSW) that while the risk of harm could have been avoided by doing things differently, it does not in itself give rise to liability for the practice which was adopted instead.

The issues on appeal

The Plaintiff appealed on the grounds that the risk of injury could have been avoided had there been a warning to him of the risk of injury. Further, the Plaintiff appealed on the basis that the Trial Judge erred by:

  1. Not finding that the risk of injury could be avoided by implementing pallet turning;
  2. Finding that pit sticks were not necessary to move the water cartons to the front of the pallet; and
  3. Finding that pallet rotation was too burdensome of a risk mitigation by the Defendant.

The decision on appeal

The NSW Court of Appeal dismissed the Plaintiff’s appeal against Coles.

Firstly, on consideration of adequate warning of the risk, Adamson J notes that the Plaintiff did not plead a failure to warn at trial. Regardless, the Plaintiff was not following the lifting method that was provided to workers in manual handling training to begin with and that this training was a reasonable precaution by Coles.

In consideration of whether implementing pallet turning constituted a reasonable precaution, the Court of Appeal considered the burden of taking precautions to avoid the risk of harm in reference to s5B(2) of the Civil Liability Act. The Court considered that this precaution would require an increase in equipment and staff and could create further risks with regard to crowding the aisles – ultimately finding that this ground had not been made out.

In consideration of the pit sticks being a precaution that could have avoided risk of injury, the Court concurred with the Trial Judge that this would not have been a reasonable precaution and noting that the Appellant’s own expert witness stated that a pit stick would be inappropriate for moving the cartons.

Implications for you

Depending upon the circumstances of each case, the Court may accept training as a reasonable precaution when it comes to the provision of correct and safe manual handling techniques provided to a Plaintiff. It shows that a Court can also find the taking of further precautions is not reasonable when the Defendant can establish that the precautions impose a significant burden for only a marginal benefit.

Gray v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd [2020] NSWCA 209

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