Unreasonable precautions: When the burden of taking a precaution becomes too heavy

The Court of Appeal recently handed down a decision which examined the duty to take reasonable precautions to avoid the risk of harm. A labour hire worker commenced proceedings against Coles Supermarkets Australia Pty Ltd after sustaining a back injury whilst manually lifting a carton of bottles from a pallet. The Court of Appeal found that the reasonable precautions the worker alleged should have been taken by Coles would not have avoided the risk of injury.


Author: Emily Truong
Judgment date: 4 September 2020
Citation: Gray v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd [2020] NSWCA 209
Jurisdiction: NSW Court of Appeal


  • In determining whether a reasonable person in the position of the Defendant will take precautions against a risk of harm, the Court will take into account the factors in s 5B(2) of the Civil Liability Act 2002 (NSW).
  • A precaution will not be found to be reasonable where the burden of taking the precaution is too high compared to its benefits.
  • The provision of training to workers with respect to the correct methods of manual lifting will be found to be a reasonable precaution.


These proceedings concerned two related appeals, one of which was brought by Mr Roland Gray (the worker) against Coles, and the other concerning a cross-claim by Coles against the plaintiff's employer. This case note examines the Court's findings with respect to the worker's claim against Coles.

The worker sustained a back injury when he lifted a 12kg carton of water bottles at a Coles' distribution centre using a technique known as a lift lunge. The worker was providing labour to Coles as a picker packer pursuant to a labour hire agreement between Chandler MacLeod Group Pty Limited and Coles.

The worker alleged that Coles had breached its duty of care by failing to take a number of precautions, such as failing to implement rotation of the pallets on which the bottles were placed and failing to provide the worker with pit sticks to move the bottles.

The worker was unsuccessful in his claim against Coles. The primary judge found that none of the precautions pleaded by the worker in his allegations of negligence were reasonable. His Honour noted that even if pallet turning was implemented, the risk of harm would still remain as the worker would still be required to lift the carton from the pallet and manually handle it.

Having regard to s 5C(b), his Honour noted that although the risk of harm could have been avoided by doing things differently ie. pallet turning, this in itself does not affect or give rise to liability for the practice which was ultimately adopted.

The worker appealed the trial judge's decision on the following key basis:

  1. the risk of injury could have been avoided had there been a warning of the risk of injury;
  2. the trial judge erred in not finding that the risk of injury could have been avoided through the provision of an implement, or the rotation of a pallet;
  3. the trial judge erred in finding that an implement was not necessary to shift the carton of water bottles to the front of the pallet; and
  4. the trial judge erred in finding that pallet rotation was "too burdensome".

Decision on appeal

The Court of Appeal dismissed the worker's appeal against Coles.

Provision of training

In relation to the worker's allegation concerning Coles' failure to warn him of the risk, Justice Adamson noted that there was no particular of negligence pleaded alleging a failure to warn.

In any event, Justice Adamson noted that the worker had not followed the training and instructions he had received with respect to manual lifting, despite substantial evidence establishing that Coles had provided training to the plaintiff as to the proper method of lifting. His Honour found that the training provided by Coles constituted a reasonable precaution. Accordingly, his Honour concluded that the primary judge was correct in rejecting the worker's claim on this basis.

When the burden of taking a precaution outweighs its benefits

The Court next turned to the question of whether pallet turning constituted a reasonable precaution. In making this determination, the Court considered the "burden of taking precautions to avoid the risk of harm" in accordance with s 5B(2) of the Civil Liability Act. The Court noted that pallet turning would require additional staff and equipment, yet be of "dubious benefit" and create an increased risk associated with more crowded aisles. The Court therefore found that this ground of the appeal had not been made out.

An inappropriate precaution

Mr Gray further submitted that the primary judge had erred in not finding that a risk of injury could have been avoided had an implement been provided to move the carton, such as a pit stick. The Court agreed with the primary judge's finding that a pick stick would not have been a reasonable precaution, noting that even Mr Gray's own expert had found that a pit stick would have been inappropriate for the required task.

Why this case is important

This case reaffirms that in determining negligence, the Court will consider whether the Defendant had taken reasonable precautions to avoid the risk of harm. However, this duty to take reasonable precaution does not extend to taking precautions that would impose a significant burden on the Defendant with marginal benefit.

This case also demonstrates that the Court will accept training as a reasonable precaution where a Defendant can establish that training had been provided to the plaintiff as to how to correctly and safely perform a task involving manual lifting.


Emily Truong Lawyer