COLE v FRANKLINS LTD [2004] NSWCA 379

New South Wales Court of Appeal

CITATION : COLE v FRANKLINS LTD [2004] NSWCA 379 HEARING DATE(S) : 19/08/2004 JUDGMENT DATE : 3 November 2004

JUDGMENT OF : Mason P at 1; Hodgson JA at 2; Bryson JA at 3 DECISION : Appeal dismissed with costs.

CATCHWORDS : EMPLOYMENT - workplace injury - appellant experienced pain in L arm and shoulder while placing bag of goods in shopping trolley - employed at check-out handling high rate of customers including some heavy goods - negligence alleged related to high rate of handling and handling technique - Trial Judge found that causation by alleged breaches of duty was not proved by medical evidence - no error shown, appeal dismissed. CASES CITED : Beale v. Government Insurance Office of New South Wales (1997) 48 NSWLR 430 PARTIES : Kylie Anne Cole - Appellant Franklins Limited - Respondent FILE NUMBER(S) : CA 41045 of 2003 COUNSEL : Miss S. Norton SC and A. Healey - Appellant M. Joseph - Respondent SOLICITORS : Bryden's Law Office - Appellant Sparke Helmore - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 12249 of 2001 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41045 of 2003

MASON P HODGSON JA BRYSON JA

WEDNESDAY 3 NOVEMBER 2004 KYLIE ANNE COLE v. FRANKLINS LIMITED Judgment 1 MASON P: I agree with Bryson JA. 2 HODGSON JA: I agree with Bryson JA. 3 BRYSON JA: The appellant suffered an injury in the course of her work at the respondent's supermarket in the Moorebank Shopping Village at Stockton Avenue Moorebank ("the Moorebank Supermarket") on Tuesday 30 May 2000. The appellant's action for damages against the respondent was heard in the District Court at Sydney by his Honour Judge Puckeridge QC on three days commencing on 8 September 2003, and his Honour gave judgment for the respondent with costs on 23 October 2003, for reasons then stated. 4 The appellant was born on 29 November 1968, and was 31 years of age at the time of her injury. She left school in 1983 without formal qualifications, worked in shops, and from about 1985 worked in a Flemings Supermarket; after six months she changed to Coles and worked there for about one year. She later had employment at several restaurants as a waitress, at a shop as a salesperson, and at Woolworths as a Service Supervisor for about three years. She was not employed for some years while looking after her children, but after that she worked for three years packing shelves at Woolworths. Over many years she did a lot of supermarket work in various different supermarkets and was well experienced. 5 The appellant's employment with the respondent at the Moorebank Supermarket commenced on 6 September 1999. Her position was designated Customer Service Team Leader. The appellant worked full time, five days a week from Tuesday to Saturday inclusive, and on 30 May 2000 she started work, as she usually did, at 7.45 am; she had duties to attend to before 8 am, including attending to money, collecting paper work, turning on the registers and the computer and inserting paper rolls in all registers; then at 8 am she opened the doors and proceeded to serve customers. It is the appellant's evidence that at the time she was injured, which she put at about 9 am, she was the only person working in the shop. There was one other employee who was working at the back dock receiving all loads of grocery items. (It was disputed whether the appellant was the only person working in the shop; there might have been one other, and the Trial Judge did not resolve this issue.) 6 It is the appellant's evidence that at the relevant time only one register was open; this was a register usually used for customers buying 10 items or less, and the layout of the register was not the same as the layout of other registers used later in the day for customers purchasing large number of items. The appellant was attending to customer checkout at the "10 items or less" register; and there were about 15 customers in the shop. 7 It is the appellant's evidence and her case that for the first hour and a half after the shop was open the pace of work at her register was very high, and customers usually had full trolley-loads, not just a few items. She had requested her supervisor, about four weeks after she started to work there, for another operator to help her in the mornings and the supervisor told her that the store could not afford to do this. She persisted with her request and asked again six or seven times, but received the same reply. Between 8 am and 9.30 am on 30 May 2000 the store was quite busy. She attended to a customer who brought a trolley full of goods to the checkout register; the customer did not have 10 items or less. The appellant alleged that when she was processing the order by lifting a bag and placing it into a trolley she heard a crack and felt pain at her left shoulder.