Let's start with a chat
Ivan Baxter is a lawyer with over 30 years experience. Ivan is the Director of OShea Dyer Solicitors Townsville and practices exclusively in Litigation representing people who have motor vehicle, workplace or public liability claims.
Welsh v Biggin Pty Ltd (No2)  QSC 211
This matter was heard in the Supreme Court in Cairns, North Queensland. O’Shea & Dyer Solicitors, with barrister Mr Peter Mylne, represented the injured worker, plaintiff, Mr Paul Welsh.
The Facts of this Case:
Mr Welsh was employed by Biggin Pty Ltd who owned a business called Dine-A-Chook. This business operated out of a warehouse in Townsville selling chicken feed and chicken feeders.
Mr Welsh, in the course of doing his job, applied a high initiating force to a non-motorised pallet jack to move heavily laden pallets around the warehouse.
He suffered a tendon tear of the right quadricep, resulting in permanent physical impairment and an adjustment disorder with mixed anxiety and depressed mood.
It was alleged that his injury was the result of the application of high force, to quickly initiate the pallet jack’s movement.
The risk of musculoskeletal injury from applying such a high initiating force was said to have been a risk that should have been identified and eliminated or at least mitigated against in the workplace, and that had not occurred.
Two matters were considered by the court: liability and quantum of damages.
The Judge noted the determinative issues as to liability were:
Was the injury incurred as alleged?
The plaintiff used a non motorised pallet jack which was moved by the operator pulling or pushing it. If a weighty load is upon such a pallet jack, the application of force necessary to initiate the rolling movement of the pallet from stationary is much greater than the force necessary to keep it moving once it is rolling. It is important the operator applies the initiating manual force gradually and gently, for a high application of initiating force to a stationary heavy load risks inflicting a musculoskeletal injury.
The warehouse premises was shared with the landlord who needed to always have access to store and move camper trailers.
On the afternoon of the 8th October 2018 pallets of stock were delivered to the concrete loading area outside the premises of the business. The plaintiff, Mr Welsh, used a forklift to unload pallets from the delivery truck, and he used the pallet jack to move two partly laden pallets of chicken feed ‘out of the way’ so the landlord had unobstructed access to move camper trailers.
Moving the two partly laden pallets was thus done quickly. Mr Welsh had used the pallet jack to move chicken feed on multiple occasions in the past but had not moved them so quickly in the past. Mr Welsh testified that he used both hands and pulled backwards on the pallet jack handle applying “as much effort as I could to move it as quick as possible.” He described that initiating application of force as “maximum effort”. He suffered an injury to his right knee and quadricep which worsened over the coming days and beyond.
The judgement goes into a lot of detail about the manifestation of the injury, the treatment for the injury, the time of the injury, the sensation of the injury, and the causal mechanics of the injury.
The court heard evidence about Mr Walsh’s’ surgery, development of a proximal femoral deep vein thrombosis and pulmonary embolism, chronic pain, medications, and restricted range of movement and pain that increases commensurately with the extent of demands Mr Walsh places upon his right knee by walking or performing other physical tasks with his legs. The court also heard evidence about the significant and permanent impairment of Mr Welsh’s physical capacity and its impact upon his mental health.
The plaintiffs lawyers argued that his injury was caused by his use of maximum force when pulling the pallet jack to initiate movement of the chicken feed pallets and was likely aggravated by subsequent movement of other pallets on the following day.
Biggin argued that even if the injury was caused by the events of the 8th and 9th (October 2018) it could be explained as an aggravation of pre-existing tendinopathy and may have been caused by the comparatively low strain activity of getting in and out of the forklift.
There had been a post-injury scan of the right knee which revealed early degenerative disease and tendinosis of the insertion of the quadriceps and a tear. Dr Low, an orthopaedic surgeon gave expert evidence for Mr Welsh and explained the degenerative changes were consistent with Mr Welsh’s age. He considered the tendinosis existed prior to the injury but that it was likely asymptomatic.
The Judge accepted Mr Walsh’s testimony that he became conscious he was experiencing pain in his right knee both as he was using the pallet jack and as he was using the forklift. The Judge stated  A symptom of pain felt in the performing two kinds of physical activity says nothing as to which of them caused it. Accordingly, the Judge heard evidence from expert engineers regarding the nature of the forces in play when pulling with significant high force a stationary laden pallet to initiate its movement and concluded, in conjunction with expert medial evidence, that it was that action by Mr Welsh which caused his physical injury.
Justice Henry determined the plaintiff to be an honest and reliable witness and accepted his version of events and found the use of such significant initiating force that afternoon was what caused the injury.
What if any duty of care did Biggin have to take to precaution against risk of such injury?
Justice Henry considered whether Biggin had a duty of care to take precautions against risk of injury of the kind which occurred, specifically, the risk of musculoskeletal injury being caused to Mr Welsh by applying a high degree of force when initiating the movement of heavily laden pallets with the pallet jack.
Justice Henry stated : At common law the employer owes a duty to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury in the workplace. It is well established that duty includes a duty to take all reasonable steps to provide a safe system of work… It logically follows that a safe system of work should assess potential hazards and hazardous tasks in the workplace to identify whether, and if so how, they pose unnecessary risk of injury to employees and in turn ascertain and implement reasonable precautions to avoid exposing employees to the risk.
The Judge considered the scope of the duties of care in the case at hand. He considered whether the risk of injury was foreseeable, not insignificant and of a nature against which a reasonable person would have taken precautions. He referred to the Workers Compensation Rehabilitation Act 2003 (Qld). He then asked : What approach would a reasonable person in the position of Biggin have taken to the management of the risk of injury from the use of the pallet jack?
The Judge considered it a notorious fact that any reasonable employer would be aware that workers may sustain musculoskeletal injury in performing tasks involving the application of their physical force. It is not enough that workers are also likely aware of this and will always perform tasks without risking injury to themselves.
The Judge referred to  the Work Health and Safety Act 2011 (Qld) and the relevant regulations and noted the provisions therein are consistent with the common law duties to managing risks with the provision of information, training, instruction or supervisions necessary to protect all persons from risk to their health and safety arising from work… The Judge specifically referred to S 35 of the Work Health and Safety Regulations 2011 (Qld) which refers to the employers’ obligations of eliminating or at least minimising risks to health and safety… and more particularly S 60 which refers to obligations of managing “risks to health and safety relating to a musculoskeletal disorder associated with a hazardous manual task…”
The Judge considered carefully the meaning of: musculoskeletal disorder, hazardous manual tasks, and force. At  the Judge noted there was immediate, high application of significant force to quickly initiate the pallet jack’s movement. He stated: if a risk assessment had been carried out Biggin would likely have turned its corporate mind to the real prospect of a workers occasional perceived need to move pallets quickly and thus the prospect of the worker applying sudden “forceful muscular exertions” with the pallet jack, placing stress on or overloading the workers muscles, tendons, etc.
The Judge determined  the scope of Biggins duty of care meant that if acting as a reasonable employer he would have taken precautions to instruct the worker about the risk of musculoskeletal injury inherent in the application of high force, including warning against the use of such force and training the worker in the application of only gradual, gently initiating force.
Did Biggin breach its duty of care?
The Judge noted  there was no evidence that Biggin undertook any risk assessment or that he identified the risk or took any precautions against it. He considered there was no relevant system of workplace safety.
Biggin sought to rely upon a conversation with the plaintiff that he had used a pallet jack in previous employment and that he had always observed the plaintiff using the pallet jack often, safely and cautiously.
The Judge determined there was a complete absence of any sort of systemic approach or instruction in managing that hazard. And while Biggin hadn’t ever witnessed any abrupt or quick movement in the plaintiffs use of the pallet jack, it was a predictable human response to a perceived need to shift a pulled load quickly, to pull at it forcefully notwithstanding the modest gain in time that may deliver.
Justice Henry determined that Biggin did breach its duty of care.
Did the breach cause the injury?
The Judge determined  it likely that training in the critical behaviour of gentle acceleration would have made it memorably obvious that it only takes a second or two of gentle accelerating force to initiate the movement of a loaded pallet jack. It would have well demonstrated both the danger and the futility of the otherwise natural reaction of trying to do the task quicker by applying high initiating force.
The Judge also said  a reasonable employer, conscious of the duty to take all reasonable steps to provide a safe system of work, would have a systemic approach to safe use of physical force in the workplace and the raised culture of awareness of workplace safety. The Judge noted  if this had been the case, it is still possible that in the moment, the plaintiff may still have acted as he did. The Judge determined the probable outcome to be that the plaintiff would not have, and he would have applied gentle accelerating force.
The Judge found that the plaintiffs injury was caused by his application of high initiating force to the pallet jack when pulling the laden chicken pallets on the 8th Oct 2018, and there was no reason to conclude the injury would not have occurred but for the plaintiffs pre-existing condition.
The Judge then considered the amount of damages Biggin should pay.
Quantum of Damages
In deciding the amount of compensation/damages to be paid to the plaintiff, Mr Walsh, he considered the impact of the injury, physical and mental prognosis, and then looked at an assessment of past and future economic loss, superannuation, and future special damages.
Impact of the injury
The Judge determined the plaintiff’s leg injury was significant as he continues to suffer pain and a restricted range of movement. The severity of the pain increases the longer he is on his feet and the more he does. He can’t perform physical tasks requiring application of force by his leg and can’t stand or walk for prolonged periods. Comfortably walking inclines or irregular surfaces and any significant bending or squatting is beyond him.
Mr Walsh uses a wheelchair as he feels unable to walk other than short distances. He’s very restricted in the domestic activities he can perform. He cannot drive and is reliant on his wife for transportation. He previously enjoyed fishing, gardening, going to the beach, walking his dogs and bushwalking but now has great difficulty doing these things. He is largely restricted to sedentary recreational activities such as watching TV, reading, and researching on the internet. He doesn’t go out much anymore and doesn’t have contact with friends as often as he used to. He has gained weight and favors his left (good) leg and has developed pain in his left knee and ankle. He suffers from sleep disturbance, reduced concentration, and reduced motivation. He feels useless and resentful at his loss of independence and feels guilty about being a burden on his family, and he worries about the long-term impact of the injury upon his employment, his family’s financial security and his quality of life. Also, his relationships with his wife and children have been adversely affected.
The Judge accepted evidence from Dr Low, orthopaedic surgeon that the plaintiff had reached maximum medical improvement and there was a significant permanent disability.
The Judge was satisfied that but for the knee injury and its consequences, the plaintiff would not have suffered the psychiatric adjustment disorder with depressed mood.
In assessing damages the Judge allocated the following:
|Past economic loss
|Past superannuation loss
|Interest on past economic loss
|Past special damages
|Interest on past special damages
|Future economic loss
|Future economic loss of superannuation
|Future special damages
|Fox v Wood allowance
|Less WorkCover refund
|Total Award of Damages
Justice Henry ordered that Biggin pay Mr Walsh, the plaintiff the amount of $824,647.48 by way of damages/compensation.
The Judge also ordered that Biggin pay the plaintiffs standard costs from the date of the Compulsory Conference up until the end of the hearing.