To what extent is a plaintiff’s contributory negligence sufficient to break the chain of causation between an employer’s negligence and harm under s 5D(1)(a) of the Civil Liability Act 2002 (NSW)? The recent NSW Court of Appeal case of Williams v Metcash Trading Ltd [2019] NSWCA 94 addresses this issue.

Judgment date: 3 May 2019

Citation: Williams v Metcash Trading Ltd [2019] NSWCA 94

Jurisdiction: New South Wales Court of Appeal

Principles

  • As a matter of caution, supermarkets and warehouse operators should review stock storage methods to ensure that all employees can implement best ergonomic practices.
  • The appropriate question under section 5D(1)(a) of the Civil Liability Act 2002 (NSW) is whether the negligence was a necessary condition of the occurrence of the harm. Whilst contributory negligence is a factor to consider in this assessment, it will not always be determinative in denying causation.

Background

The NSW Court of Appeal delivered judgement on 3 May 2019 in Williams v Metcash Trading Ltd [2019] NSWCA 94 allowing an appeal of a principal decision of the NSW District Court from 23 June 2017.

Mr Williams was employed through a labour-hire company as a casual picker/packer at Metcash’s product distribution centre. On 1 June 2012, Mr Williams bent under the bottom rack measuring 1.4m high, to obtain two cartons of Chum dog food to place onto a pallet for distribution. As a result of the bending and twisting movements involved in retrieving and lifting the slabs, he suffered an injury to his lower back and pain syndrome. Mr Williams also had a history of lower back pain and depression.

Decision at first instance

The primary judge held that Metcash breached its duty of care to Mr Williams in one respect, by placing the cartons in pick slots measuring 1.4m high rather than at a height of 1.8m. However, it was held that this breach was not causative per s 5D of the Civil Liability Act 2002 (NSW) (Act), as Mr Williams, in lifting two cartons at once, was responsible for his own injury. This was upheld despite evidence being adduced that Mr Williams felt pressured by Metcash to carry two cartons at once in order to keep up with their expected pick rates. Despite entering judgement in favour of the defendant on this basis, the primary judge went on to consider an assessment of damages in case his findings as to causation were held to be erroneous. In such a case, the primary judge reasoned that Mr Williams’ damages should be reduced by 20% for contributory negligence, and a further 20% on the basis that if Mr Williams had sued his employer, they would have also been liable for failing to take care to avoid exposing Mr Williams to unnecessary risks of injury (s 151Z of the Workers Compensation Act 1987 (NSW)). Accordingly, in that instance, the apportionment of liability would have been reasoned as 80% for Metcash and 20% for the employer.

As to non-economic loss, the primary judge held that Mr Williams had suffered an injury of 28% severity as a proportion of a most extreme case and would have been entitled to $84,500 for non-economic loss. Future economic loss was calculated as a buffer of $20,000, and future domestic assistance was calculated at $65,002.60. These figures were then subject to a reduction of 40% for contributory negligence.

Decision on appeal

The appeal centred on four issues:

  1. whether the primary judge erred in his finding that Metcash was negligent in requiring Mr Williams to pick cartons from a pick slot measuring 1.4m;
  2. that Metcash’s negligence was not causative of Mr Williams’s injuries;
  3. that Mr Williams was contributorily negligent; and
  4. that the primary judge erred in his assessment of damages.

On appeal, issues 1,3 and 4 were upheld. As to the second issue, the primary judge considered that whatever the height of the panels, Mr Williams would have picked up two cartons at a time and suffered the same or similar injury. White JA, Meagher JA and Simpson AJA held that the question under s 5D(1)(a) of the Act was relevantly articulated as follows:

Whether Mr Williams would have suffered the particular injury he did suffer if the height of the pick slot was 1.8 metres and not 1.4 metres. It is not to the point that he might have suffered a similar injury on another occasion if he continued to lift two boxes of heavier items at the same time.

Mr Williams gave evidence that he regularly picked up two cartons at a time, in direct contravention of the safe lifting techniques he had been taught by Metcash. The Court of Appeal had regard to the fact that Mr Williams had not suffered a prior injury despite his poor lifting techniques, as indicative that the injury was not solely attributable to the weight of the load. Rather, this evidence indicated that the subject injury would not have occurred had the pick slot measured 1.8 metres. At this height, Mr Williams would have been able to use a comparatively safer lifting method and reduce the need to bend and twist at a low height. Accordingly, Metcash’s negligence in placing the Chum food pick slot at a height of 1.4m instead of a higher available height of 1.8m was held to be causative of Mr Williams’ injuries.

Why this case is important

The case highlights the importance for supermarkets and warehouse operators to review their stock storage methods. Such review, should have specific regard to the weight of stock and the space available in stock storage areas to allow employees to implement safe lifting and moving techniques. It also indicates the extent that the court is willing to extend liability under s 5D of the act, notwithstanding whether an employee or ‘host employee’ has contributed to their own injury.