Michele Box v Liquorland (Australia) Pty Limited [2005] NSWSC 598

New South Wales Supreme Court

CITATION : Michele Box v Liquorland (Australia) Pty Limited [2005] NSWSC 598

HEARING DATE(S) : 20, 21 & 22 September 2004 14, 15, 16 & 17 June 2005

JUDGMENT DATE : 24 June 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : 1. Judgment for the defendant; 2. The plaintiff is to pay the defendant's costs of the proceedings ; 3. The exhibits may be returned.

CATCHWORDS : Lower back injury allegedly suffered by reason of moving cases of beer - issues of fact - no question of principle.

Michele Box (Plaintiff) PARTIES : Liquorland (Australia) Pty Limited (Defendant)

FILE NUMBER(S) : SC 20679/01

Mr G B Hall & Mr M Eagle (Plaintiff) COUNSEL : Mr A B Parker (Defendant)

G H Healey & Co (Plaintiff) SOLICITORS : Landers & Rogers (Defendant)

LOWER COURT JURISDICTION :

- 23 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

24 June 2005

20679 of 2001 Michele Box v Liquorland (Australia) Pty Limited

JUDGMENT 1 His Honour: The plaintiff claims damages said to arise out of injury suffered at work during her employment with the defendant. It is said that the injury was suffered on 3 August 1998 while she was working at the defendant's Pagewood store (the store). 2 The hearing commenced on 20 September 2004. Initially, it continued until 22 September 2004. 3 The plaintiff was born on 28 November 1968. She completed her School Certificate at the end of 1984. 4 Between 1988 and 1995, she was employed by the Royal Australian Air Force. During that time, she underwent various courses. 5 The plaintiff married her husband on 15 June 1991. At all material times, he has been in the Navy. They did not reside permanently with each other until the end of 1995. She says that she gave up her employment with the RAAF so that they could live permanently together. There are no children of the marriage. 6 The plaintiff was employed by the defendant between January 1996 and September 1999 as a service assistant. She described her duties as follows:- The serving of customers, retrieval of stock, putting stock away, if a delivery came I went and got the delivery if there was nobody else in the store and put away all those deliveries, help to put those deliveries away. [Tr 20.9.04 p11] 7 On 3 August 1998, she had been rostered off work. Her version is that she received a telephone call from the manager (Steve Wiblen). She gave the following evidence:- Q. What happened in relation to that day in relation to your work? A. My manager rang me up and asked me to do some overtime because they had just received a delivery of seven pallets of VB. … … … Q. What did he say to you and what did you say to him, doing the best you can? A. He just asked me if I would come in and help in the store as they got a big delivery of VB and he was doing bookwork that he had to do and they needed help and I said yes, I would come in. [Tr 20.09.04 p12] 8 In her evidence, she has described it as a "special" and "an unusual" delivery. 9 She says that there were only two other persons working at the shop on that day (Steve Wiblen and Christian Mauricio Berrios). Both were at the store when she arrived. She says that she believes she worked for about three or three and a half hours (she was not exactly sure). 10 I shall firstly refer to what seems to have been the procedure in relation to delivery of liquor to the store. Pallets were unloaded at a loading dock. It was some distance from the store. They were then moved from the dock to the store where cases were unloaded from the pallets. The store had, inter alia, a cool room and a display area. 11 I shall now turn to the evidence given in chief by the plaintiff concerning the work done by her on that day. 12 The plaintiff said that Mr Wiblen was ordering stock and doing bookwork. Mr Berrios was basically serving customers behind the register. She noticed "seven pallets or six and a half at that stage". She started unloading the stock. 13 She said that the first task was to move old stock. There were about 80 cases of old stock. She believed that she moved "around 60 cases, could be less, I am not exactly sure, I didn't count them" into the cool room. This was done by lifting the cases onto a two wheel trolley. She would put six cases of beer onto the trolley and wheel it into the cool room, take the beer off the trolley and put the cases in a stack in the cool room. The remaining old stock that wouldn't fit into the cool room stayed where it was. She cleared a space. 14 She then started unloading the pallets of new stock. She believed that she unloaded three pallets. There were 70 cases of Victoria Bitter on each pallet ("VB stubbies, 375ml"). She placed one case at a time on the trolley. The trolley was then wheeled to a display and unloaded. The beer was then put on display. After shifting the three pallets of beer, the remaining old stock was put on top of it. 15 She gave the following evidence:- Q. As you were doing this did you notice, as you were shifting the cases of beer did you notice something about yourself? A. No I just was getting tired. Q. Whereabouts you were getting tired? A. I just felt sort of normal in my back, tired from all the repetitive lifting. Q. You were getting tired in your back, what do you mean? A. Just feeling sore, I had had enough, I'm not doing any more. [Tr 20.09.04 p14] 16 It was her belief that she moved "more to the tune of 200, 210 cases". She did not agree with the suggestion that it may have been "only 150, 160" cases. 17 It is her evidence that she moved only cases of Victoria Bitter (each carton containing 24 x 375ml stubbies). 18 She says that Mr Wiblen did not help her move the cartons. She says that Mr Berrios may have moved some of them and that she may have served some customers. She says that on 3 August 1998 she did not know that she had hurt her back. She says that she told Mr Wiblen that she wanted to go home. 19 That evening, the plaintiff participated in a weekly competition of ten pin bowling. She played three games and used an 11 pound bowling ball. She said that she felt tired after the competition. 20 She says that the next morning, whilst dressing herself, she bent down and her back seized up and she experienced excruciating pain. A general practitioner was called. 21 Following this incident (and about an hour before she was due to start work), the plaintiff telephoned Mr Wiblen. She gave the following evidence:- Q. He said, "The next day she rang an hour before she was due to start" and you told him you had hurt your back while lifting the beer; did that happen? A. I told him I hurt my back and I didn't know how I had hurt it - I didn't say I didn't know how I did it, I told him "I hurt my back". Q. He says you told him you hurt your back whilst lifting the beer. He said had you been tenpin bowling the night before. You said you had, but you had hurt your back while lifting the beer; did anything like that happen? A. Not when I rang him that morning because I was still waiting for the doctor to come. [Tr 20.09.04 p24] 22 She saw the doctor after having this conversation. She was given medication. 23 Thereafter, three documents came into being. There was an incident report (Exhibit B), an employers' report of injury (Exhibit H) and a compensation claim (Exhibit G). 24 In Exhibit B, the duties being performed at the time of the accident are said to be "unloading three pallets of beer to other parts of the store". The description given of the accident is "lifting 210 cases of beer when unloading the pallets and therefore straining the muscles of my lower back". The plaintiff's recommendations to prevent recurrence were, "to not unload as many cases of beer". At the foot of the document, Mr Wiblen has added:- It was more like 150 cases of beer and she didn't do them on her own.