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Woolies’ dog act to injured woman

WOOLWORTHS hired a private investigator to secretly film a young Big W employee after she was left unable to pursue her "dream" career as a paramedic following a work accident.

Canberra woman Jessica Lewis has been awarded a $543,243 payout by the ACT Supreme court after it found the injury "led to a significant and long-term aggravation of her back condition" and that the "range of employment available to her" had been narrowed as a result.

The 22-year-old, who worked permanent part-time as a "recovery associate", sued Woolworths over an injury sustained in the loading dock at a Big W store in January 2016.

Ms Lewis was moving boxes containing printers on to a pallet when a forklift struck the work cage as she was reaching in, causing it to strike her shins. She stepped backwards and extended her back - "I jerked it real quick" - causing immediate pain down her lower back and legs.

Scans revealed that she had suffered an injury to her L5/21 lumbosacral joint, aggravating an existing, previously asymptomatic condition identified as either spondylolysis - a stress fracture - or mild spondylolisthesis - slippage of the vertebrae.

Following the accident, she was also diagnosed with an adjustment disorder, with her mother saying she had become "very cranky" and "had no patience".

Ms Lewis had been due to start a paramedics course at the Australian Catholic University the following month. Her mother said she had been very happy to be accepted into the course, describing her as "excited" and "over the moon", with Ms Lewis saying, "I just can't believe it, my dream has come true."

Doctors notes from February 5 tendered to court noted Ms Lewis was "teary as (the orthopaedic surgeon) has mentioned that a career as a paramedic may be difficult if (she has a) chronic back issue".

Woolworths contended that she had "grossly over exaggerated the nature and extent of her disability", with the retailer even hiring a private investigator to secretly film her walking around Yerrabi Pond, a lake near the Gungahlin Town Centre.

Ms Lewis was also cross-examined over CCTV video recorded by Big W cameras in the period after the accident in which she was shown buying items at the counter.

ACT Supreme Court Justice David Mossop disagreed with Woolworths' position on the video evidence.

"Rather, I consider that her level of pain and disability is not such as to be outwardly debilitating but is at the level which will significantly interfere with the quality of her life and restrict her capacity to work because of physical difficulties with repetitive or continuous activities," he said.

Justice Mossop said he did not accept Woolworths' contention that Ms Lewis would suffer no economic loss as a result of the injury.

"Notwithstanding the best efforts of the plaintiff, an injury such as that which she suffered is likely to constrain both the options that she has in relation to employment and her capacity for tertiary study so as to advance herself, and also make it less likely that she will pursue remunerative activities to the extent that she would have if she was uninjured," he said.

Justice Mossop said Ms Lewis had "adjusted as well as possible" to her back condition but that her ongoing pain had "interfered with her capacity to complete university studies".

The court heard she had switched to a law degree but only completed two subjects before dropping out due to pain interfering with her ability to concentrate. She now works as a medical receptionist.

Justice Mossop found she had "established that she has suffered a loss of earning capacity as a result of the accident".

But while her lawyers had argued for damages in excess of $1 million, the court found there were "uncertainties" as to whether she would have been successful as a paramedic in the absence of her injury.

"Instead, because of the multiple uncertainties that exist, I consider this is a case where damages for future economic loss can only be assessed by way of a buffer," he said.

"That buffer represents the economic loss caused by her loss of earning capacity resulting from her back condition. I have calculated that buffer by reference to the net loss of $570 per week for a period of 10 years."

Ms Lewis was awarded damages for future loss of earning capacity totalling $285,000, general damages of $170,000, $26,109 for possible future domestic assistance, plus out-of-pocket expenses and interest, for a total of $543,243.

A Big W spokeswoman said, "We acknowledge the ruling of Lewis v Woolworths Group on August 1. At Big W we are committed to the safety and well-being of our team members. We review our processes and training to continuously improve our safety."



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