Hoad v Peel Valley Exporters Pty Ltd

Supreme Court of NSW|2008-07-02|Before: Harrison J

CITATION : Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981

DECISION : 1. Verdict for the plaintiff for $705,554.33. 2. Order the defendant to pay the plaintiff's costs.

CATCHWORDS : NEGLIGENCE - duty of care - liability of defendant "host employer"/occupier of premises used to conduct an abattoir at which plaintiff sent to work by her employer - employer a company related to defendant - plaintiff injured in course of lifting boxes of meat products from work table to conveyor - defendant negligent in failing to eliminate unsafe system - assessment of employer and defendant's respective liability for purposes of s151Z(2)(c) Workers Compensation Act 1987 - DAMAGES - plaintiff with asymptomatic condition rendered symptomatic by injury in course of employment - whether natural progression of disease would have led to disability absent the work injury - reduction of damages for future by an increase in discount for vicissitudes to 25 per cent to reflect chance that pre-existing condition would have developed without work injury - CONTRIBUTORY NEGLIGENCE - whether plaintiff failed to take care for her own safety by performing work other than in the way designed - no contributory negligence.

Civil Liablity Act 2002 LEGISLATION CITED : Corporations Act 2001 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 Workers Compensation Act 1987

Clout Industrial Pty Limited (In Liquidation) v Baiada Poultry Pty Limited [2004] NSWCA 89; (2004) 61 NSWLR 111 Grljak v Trivan Pty Limited (In Liquidation) (1994) 35 NSWLR 82 CASES CITED : J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1

PARTIES : Robin Kay Hoad (Plaintiff) Peel Valley Exporters Pty Ltd (Defendant)

COUNSEL : R F Sutherland SC with P J O'Connor J E Sexton SC

SOLICITORS : R J O'Halloran & Co (Plaintiff) Lee and Lyons (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20332 of 2007 Robin Kay Hoad v Peel Valley Exporters Pty Ltd

JUDGMENT 1 HIS HONOUR : On 29 January 2004 the plaintiff suffered a back injury when she lifted a box containing meat products that she was required to place on a conveyor belt located under a bench at which she worked. In the course of lifting the box, turning and stooping, she experienced a sharp pain in her back. Her injuries were sustained in the course of her employment with Meat Industry Services Pty Ltd (the employer). The plaintiff alleges that she was injured at the defendant's premises in Phoenix Street, Tamworth from which it conducted the business of a lamb abattoir. The plaintiff was employed originally as a trainee meat processor, and alleges that at the time of the incident giving rise to these proceedings she was under the direction and control of the defendant as a host employer as if the defendant were her employer. The precise details of this arrangement and the relationship between the defendant and the plaintiff's employer achieve considerable significance in these proceedings and are discussed at some length below.

2 In due course the plaintiff was diagnosed with an intervertebral disc prolapse at T11/12 and a spondylolisthesis at L3/4 for each of which she came separately to spinal surgery. Despite a short period on light duties following the incident, the plaintiff effectively ceased work entirely in or about March 2004 and was dismissed from her employment in February 2005.

3 The plaintiff claims damages for personal injuries and associated losses. She contends that the defendant was negligent. The original statement of claim filed on 6 September 2006 in the District Court of New South Wales at Tamworth particularised 32 separate allegations of negligence and breach of statutory duty. However, during the course of the hearing, which commenced at Tamworth on 23 June 2008, those particulars became limited to the following:

(a) Failing to take any, or any adequate, precaution(s) to prevent injury to the plaintiff.

(b) Failing to ensure the health, safety and welfare of the plaintiff.

(c) Requiring the plaintiff to carry out repetitive and heavy work at a fast pace in a cold environment without adequate rest.

(d) Requiring the plaintiff to carry out repetitive and heavy work at a fast pace in a cold environment without adequate rotation of her duties.

(e) Failing to provide the plaintiff with any assistant or assistance in the lifting activities in which she was required to engage.

(f) Failing to provide to the plaintiff a place of work wherein she did not need to stand on her toes and/or lever herself up so as to be able to reach the places which she needed to reach.

(g) Requiring the plaintiff to lift heavy objects without assistance.

(h) Requiring the plaintiff to lift and carry heavy objects while turning and stooping.

(i) Failing to instruct the plaintiff in a safe means or method of carrying out her work in the circumstances.

(j) Failing to provide a better regime of supervision.

(k) Failing to provide the plaintiff with more frequent breaks.

(l) Failing to provide benches at a height better suited to the plaintiff given her short stature.

(m) Failure to provide better supervision and training of type which would have assisted the plaintiff to identify risks.

(n) Failure to provide, maintain and enforce a safe system of work on its premises.

(o) Failure to ensure that the plaintiff was not required to lift heavy boxes which were required to be placed on the lower conveyor.

4 The defendant denies that it was negligent. Moreover, the defendant contends that any loss or damage suffered by the plaintiff was caused by her own contributory negligence, in that she failed to take any proper care for her own safety. In further answer to the statement of claim the defendant says that by reason of ss 151Z(2)(d) and 151H of the Workers Compensation Act 1987 the amount of contribution recoverable by it from the employer is nil and that by reason of s 151Z(2)(c) of that Act, any damages recoverable from the defendant are to be reduced by the amount that the defendant would otherwise have been entitled to recover from the employer as a joint tortfeasor.

5 The plaintiff was born on 14 October 1952 at Inverell. She attended Tamworth High School, which she left aged 14 in 1966 mid-way through third form. The plaintiff was the eldest of six children and was required to assist the family with earnings from employment that she obtained as a babysitter. On 15 November 1968, having just turned 16, the plaintiff married Neville Hoad. Their first child was born the following February. They had three further children born in November 1970, February 1973 and April 1975. In 1976 the plaintiff and her husband separated and were divorced in 1978. Up until that time the plaintiff had not worked in paid employment outside the home since shortly after leaving school.

6 In or about 1978 or 1979 the plaintiff worked locally in a pizza restaurant. In 1979 she commenced a relationship with Milton Cameron with whom she had two children born respectively in October 1979 and June 1983. That relationship came to an end in 1984.

7 In 1988 the plaintiff developed an interest in harness racing and obtained registration as a trainer and probationary driver from the Harness Racing Authority of New South Wales. She gave birth to her seventh child in January 1989. In approximately 1994 the plaintiff moved into a cottage at Tamworth Showground training horses as a hobby. She did odd jobs from time to time at the showground for the local Showground Committee.

8 Between approximately 1998 and 2000, the plaintiff's mother, and other members of her family to whom she was close, died. This would appear to have created severe social and domestic problems for the plaintiff who lapsed into increasingly severe depressive episodes associated with alcohol abuse. The plaintiff gave evidence that in July 2001 she attempted suicide and was admitted to the Banksia Mental Health Unit into the care of which she entered at various times and from time to time until March 2003 as the result of continued alcohol abuse and further suicide attempts.

9 In March 2003 the plaintiff commenced daily attendances upon her general practitioner Dr Stacey in an attempt to overcome her alcoholism. Dr Stacey's treatment of the plaintiff, including a psychiatric referral, would appear to have been successful. In the course of the plaintiff's evidence before me, to which it will be necessary in due course in more detail to refer, she indicated that she no longer has a problem with alcohol abuse and drinks rarely.

10 During the course of one of her consultations with Dr Stacey in May 2003 the plaintiff complained of hip pain. He referred her for a lumbo-sacral x-ray, which she underwent on 16 May 2003. That x-ray report was relevantly as follows:

"There is mid scoliosis convex to the right, with loss of the normal lumbar lordosis - the latter can be due to muscle spasm. The L3/4 disc space is narrowed and the body of L3 is sitting forward a few mm on that of L4. No pars defects are shown at the posterior neural arch at this level, and this appears to be a mild anterior listhesis of degenerative origin - there may well be degenerative change within the intervertebral disc at this level. The last two lumbar disc spaces are not narrowed and no other abnormality is shown in the region".

11 The plaintiff's hip pain continued. She was prescribed Feldene. She gave evidence that by July or August 2003 she was no longer abusing alcohol, had overcome her depression, and had managed to limit her reliance upon prescription medication. On or about 4 September 2003 she applied for employment and was interviewed for that purpose by Julie Carlon, on behalf of the employer. The plaintiff attended an induction course at the defendant's premises on 5 September 2003, conducted by Peter McLeod. She commenced employment as a trainee meat processor on 8 September 2003 at the defendant's premises in Phoenix Street, Tamworth. Despite indications to her that she would be required to serve a three-month probation period, she was made a permanent employee within three weeks.

12 The plaintiff gave evidence that she enjoyed her work. This was the first job that she had had as an adult and her first stream of regular income. The plaintiff acknowledged that she liked the money and that she had enjoyed a Christmas for the first time in circumstances that were not constrained by lack of financial resources. The plaintiff said that she also liked the company of the women she worked with and that she looked forward to getting up the next day to start the work again.

13 The work that the plaintiff was required to do involved her standing at a conveyor belt packing various cuts of lamb that came to her from boners further up the line. Depending upon the portion of the beast to which she had been assigned on a particular day, the plaintiff may have been required to pack into boxes, or into plastic bags that were sent to a cryovac machine nearby. On 29 January 2004 the plaintiff was packing shanks into a plastic lined cardboard box. As the shanks arrived on the conveyor they would be retrieved by the plaintiff and placed on a stationary bench in front of her. The plaintiff said that this bench was approximately 45cm wide and slightly less than one metre high. At only four feet eleven inches tall, the plaintiff said that it was sometimes difficult for her to reach across that bench for cuts of meat on the far side of the conveyor belt without standing on her toes.

14 The plaintiff said that she was provided with a two-sided stainless steel table in the middle of which were a series of rollers sloped at an angle of approximately 30 degrees from the horizontal. These tables are shown in a number of photographs tendered in the proceedings. The plaintiff said that the system of work adopted by her was to place the cardboard boxes on such a table behind her that required her to turn through 180 degrees in order to transfer the meat to the boxes for packing. When the box was full the internal plastic lining would be folded over. The plaintiff said that she then lifted full boxes from the table, turning back through 180 degrees to face the bench at which she worked, and then lowered the box by stooping or bending to place it onto a second conveyor belt that was located beneath that bench. In the course of performing such a manoeuvre the plaintiff felt a severe pain in her lower back and her legs went numb. This occurred at approximately 9.30am, just after smoko (or " lappo "). She continued to work until shortly before noon when she reported what had happened and sought treatment.

15 The precise circumstances in which the plaintiff was injured are contentious. There are several reasons for this, not the least of which is the fact that the plaintiff's various descriptions of what occurred to her are not always identical. The version of events given by the plaintiff in the witness box emerges from the following extracts from the transcript:

"Q. And some time after smoko did something happen? A. Yes. I have no idea what time it was because I never used to watch the clock, I know it was a long time before the lunch, seemed a long time because I was in pain.

Q. Just interrupting you for a moment, it was after smoko? A. Yeah.

Q. You don't know what time, and before lunch? A. Yes.

Q. But it seemed a long time until lunch? A. Yes.

Q. Describe for his Honour what happened, what were you doing and what happened? A. I had filled up a box of shanks and I turned around, closed the box and picked it up and all of a sudden I got a really bad pain down the bottom of my back and I couldn't move my legs, they were numb down the back of my legs, I didn't seem to be able to move them. I didn't know what to do with the box because I had turned facing the belt, the box belt.

Q. You picked it up from the table and you had already turned? A. Yep.

Q. You were facing towards the conveyer? A. Yep. And this pain in my back. I looked around, I can remember looking around because I didn't want to be seen getting hurt or doing something wrong and I didn't know what to do with the box, I stood there, I don't know how long, would have been a few seconds and then I sort of turned and put it back on the table and I stood there looking around wondering what had happened. I was in really bad pain at the bottom of my back.

Q. Had you ever had pain like that in your back before? A. No, never. Because I couldn't shift me feet I didn't know what was going on."

16 The plaintiff saw Dr Stacey later that day. He recorded that she had had an onset of low back pain at work that day with numbness down her legs. She told Dr Stacey that she had to reach over at waist height to get sheep shanks, necks and flaps and then load them into a box that was then lifted from there down to a conveyor belt. She said that each box weighed approximately 30kg and that they processed 1000 sheep per day. The plaintiff reported to Dr Stacey that the pain had started at approximately 9.00am. The pain gradually got worse during the day. At the time of his examination of the plaintiff at 5.00pm, she continued to complain of central low back pain with numbness down the back of both legs to her knees. The doctor later recorded a history that included a complaint of repeatedly lifting 30kg boxes leading to pain in her lower back.

17 The plaintiff was cross-examined about the events of the day in question. The plaintiff confirmed that she was injured in the way that she had earlier described as the following extracts from the transcript reveal:

"Q. When you saw Dr Stacey on 29 January 2004, you told him that the back pain had commenced about 9am, didn't you? A. No, sir. I told - I would have told him it would have been between the smoko break and the lunch break. But I wouldn't be able to determine what time.

Q. Well, I suggest that you told him that the pain commenced about 9am, and it gradually increased in severity all day? A. No. It would have been between 9.20 and some time before the 12 o'clock lunch break.

Q. And that there is no doubt, though, is there, that on 29 January the pain you felt in your back was very low in your back? A. Yes.

Q. That's right, isn't it? A. Yes.

Q. There was no pain in the middle of your back? A. No.

Q. Halfway up your spine? A. No.

Q. And the back pain was something that you told Julie Carlon about when you went to see her? A. Yes."

18 The plaintiff gave the following evidence a little later:

"Q. What I want to put to you is, you told Dr Stacey that there was a gradual onset of low back pain which gradually increased in severity over the day? A. The major pain happened straight away. But it didn't go away, it stayed there and just got worse.

Q. I am suggesting to you that what you have just said is not true, and that what did happen was that you gradually felt lower back pain increasing during the course of the day? A. No, sir. First thing that happened was what I said, the - I have massive back pain low, and my legs were numb.

Q. And there was no individual incident when you were lifting a box when you suddenly felt both low back pain and numbness in your legs? A. No, sir. That's not right.

Q. You told Dr Stacey on that day, that's 29 January 2004, that you kept working after you started to feel pain? A. Yes.

Q. And that the numbness went down both of your legs at the back of your legs as far as your knees? A. Yeah."

"Q. You told Dr Hopcroft that you were packing boxes of lamb shanks weighing 30 to 40 kilograms, didn't you? A. That's probably what I would have said.

Q. There were never boxes that weighed anything like 40 kilograms, were there? A. I don't know about 40 kilos, but would have been well over the 30.

Q. You told Dr Hopcroft that it was necessary for you to lean forward, lift the box, bend at the knees, and lower the box to the shelf below the work bench, didn't you? A. I would have only said slightly bended knees.

Q. Now, I suggest that you didn't make any qualification like that. You told Dr Hopcroft that you were bending at the knees? A. No, sir.

Q. And you didn't tell Dr Hopcroft anything about picking up the box and turning it, did you? A. Well, he probably didn't ask me. He was asking other stuff.

Q. You told Dr Hopcroft that the pain had developed suddenly or fairly suddenly at 1pm, didn't you? A. No, sir.

Q. And you told him that the first symptom was pins and needles and numbness of both legs? A. No, I would have said the pain in the back and numbness in the legs.

Q. You told Dr Hopcroft that there was no pain in the back on that day, didn't you? A. No, sir.

Q. You told Dr Hopcroft that you gradually noticed pain developing in the middle of your back? A. No, sir.

Q. And that at the same time, there were pins and needles and numbness in your leg? A. I never have pins and needles in my leg. I have numbness at that stage.

Q. You told Dr Hopcroft that you had noticed pain in the middle of your back after you had had a first operation on the middle of your back, didn't you? A. I had never had pain in the middle of my back. It's always from just below my waist to my tailbone."

20 Dr Hopcroft saw the plaintiff on 2 March 2006 for a medico-legal consultation. His report dated that day records the following history:

"At about 1.00pm [on 29 January 2004] she developed fairly sudden pins and needles and numbness of both legs and she reported it to the first aid personnel at the work site who undertook to massage some topical creams into her lumbosacral area, even though at that time she had no back pain. She worked on in the shift but gradually noticed the development of some lower thoracic spinal pain, with the pins and needles and numbness of her legs continuing."

21 The defendant tendered a worker's compensation claim form. The plaintiff had not prepared the form. Her injury was described in that form in the following terms:

How did the injury occur, and what were you doing when the injury happened? (eg slipped when climbing a ladder)

Taking meat off conveyor belt to pack, standing on tip toes.

22 There was no dispute that at the time of the events described by the plaintiff she was suffering from a degenerative condition of her spine. The plaintiff said that she had not suffered from any symptoms from this condition at any time prior to her injury at work. The x-ray of 16 May 2003 showed this condition. Following her injury the plaintiff underwent a CT scan of her lumbosacral spine on 9 February 2004 that revealed the following:

"There is annular disc bulging and facet joint osteoarthritis at all levels which is causing acquired canal stenosis most markedly at the L3/4 level and less markedly at the L4/5 level. There is also mild bony compromise of the right L4/5 and L5/S1 neural exit foramina secondary to the facet joint osteoarthritis."

23 The plaintiff gave evidence that she enjoyed her work at the defendant's premises. There was no evidence that she took time off as the result of back pain or related spinal pathology at any time between 8 September 2003 and 29 January 2004. It was not suggested to her in cross-examination that she had suffered from disabling symptoms prior to her injury at work or that she was other than an able bodied and enthusiastic employee. Peter McLeod told her that she was a good worker. Indeed, the evidence that the plaintiff gave about this is important, particularly having regard to the fact that she had not previously enjoyed the fruits of regular employment in any substantial way in her life before. That evidence was as follows:

"Q. Well, did you continue to get satisfaction and enjoyment as the weeks and months went past in the job? A. Yes.

Q. Didn't get fed up with it? A. No.

Q. This would have been, am I right, in presuming the first Christmas in your life as an adult that you had been working? A. Yes.

Q. Make any difference to Christmas? A. Absolutely.

Q. So you were keen to get back to work? A. Yes.

Q. Give you much of a break over Christmas or the place close down, what happened? A. No, we didn't have much of a break, but I just can't remember how many days. It wasn't many.

Q. As January unfolded, did you the following year did you continue to enjoy your work? A. I loved it. Yes."

"Q. Let me ask you this, you had been through a pretty tough few years? A. Yes.

Q. Maybe more than a few years but this was your first full-time job? A. Yes.

Q. Since the time that you had been 14 years of age as a baby-sitter, is that right? A. Yes.

Q. How did you find it? A. I loved it.

Q. Why? A. It was something I could do. We used to kill our own meat on the farm, my uncle's farm, and it didn't phase me at all. I loved it. I never stopped, used to make the day go quicker and I liked working.

Q. Was it physically hard? A. Oh, yes, go home very tired of an afternoon, but it was very good.

Q. But satisfied? A. Get up the next morning ready to go again.

Q. And did you take over time that was offered to you? A. Yes.

Q. I think right back at your very first week over time was being offered to you? A. Yes.

Q. Apart from the sense of self satisfaction what was so good about the job? A. I liked having the money at the end of the week, it was more than I had before, get food in the cupboard now. I liked being, I liked the girls I worked with. Generally it just gave me something to do, I loved it, I got me other house.

Q. Were you scared of physical work? A. No. I used to always work hard. I do all me own mowing, all my own vegetable garden digging and everything.

Q. Apart from being tired didn't have any ill effects on you, as far as you were aware? A. No."

25 Even though on one view the versions given by the plaintiff varied slightly, I do not consider that such variations cast any doubt upon the plaintiff's claim that her back became symptomatic for the first time as the result of something that occurred at work on 29 January 2004. The plaintiff's prior medical records of her consultations with Dr Stacey did not contradict that proposition. The undisputed fact that she attended to her work for her employer without complaint by it or by her until that date suggests that her spinal pathology had not emerged as a disabling condition until that time. The plaintiff gave evidence that she had never had any problems with her back at any stage that she could remember and she was not cross-examined in a way to suggest that she was symptomatic before 29 January 2004 or that she was lying about the emergence on that day of what presently afflicts her. The defendant's emphasis was directed to a different controversy.

26 The significant dispute in these proceedings is not so much whether the plaintiff was in some way injured and for the first time became symptomatic at work , but is concerned rather with precisely what it was that she was doing when that occurred. There exist two mutually exclusive and apparently irreconcilable versions of the system of work that the plaintiff was performing in the course of which she was injured. Findings of precisely what happened to the plaintiff, and what follows from it, can only be made after this dispute has been determined.

27 According to the plaintiff, she had at all times been required to work with the aid of a stainless steel table that was bisected by a set of rollers. The table was evidently intended for use in conjunction with the bench and conveyors at or near which she was required to work. As various lamb cuts came to the packers from the boners, the cuts were removed from the conveyors by hand and placed either onto a work bench in front of the packers or directly into a plastic lined box if time allowed. If there had been a build up of cuts that could not be conveniently placed straight into the box, they would be accumulated on the bench itself until an opportunity to pack the box arose. The boxes when filled were then sent to the weighing section by another conveyor located directly below the bench. If the steel tables with rollers were placed up against that bench, the lower end of the rollers aligned with the level of that conveyor. It is reasonably apparent, and I find, that the system was designed to operate in a way that permitted packers to fill boxes when placed on the tables and to dispatch them to the conveyor by sliding them onto the table rollers and thence onto the conveyor below.

28 This is not how the plaintiff said she did her work. The plaintiff gave evidence that rather than working with the table placed up against the conveyor, she worked at all times with the table behind her. This meant that the plaintiff would be required to turn through 180 degrees to place the meat into the boxes that she said were placed on the flat stainless steel portions of the tables behind her. Correspondingly, when the boxes were full, the plaintiff would physically lift them from the table and turn again through 180 degrees to place the box on the conveyor below her workbench. She needed to bend and/or stoop to perform her task in this manner. The plaintiff said that she was never instructed to work in any other way and that whenever she was allocated to a cut of meat that was required to be packed into boxes she worked in this way.

29 The plaintiff's evidence about this included the following passages:

"Q. Now, were you told in the course of the time that you were there that certain cuts required to be certain weights in the various sizes of boxes? A. Yes. Mostly you had to with the - when I was working there, you just had to get as many as you could in so the box would close and the lid would go on flush with the box itself. They had to be packed properly.

Q. The difference in the manner you described to his Honour, you would gather them up in your arm, turn and have the box behind you on a table of the kind in the last tendered photograph? A. Yes.

Q. And keep doing that until the box was packed full? A. Yes. It all depended on the size of sheep that were coming down at that time how many you could get in it, a box, and stuff.

Q. And then when the box was full what would you do with it? A. You would put a piece of plastic Gladwrap over the top, then you close the plastic, pick it up, turn around and lower it onto the belt that comes along, the box belt.

Q. So there was a, we have already described the two top belts, the top one being the one going to the cryovac machine, the middle one being the cut meat, the bottom one was the box conveyer belt? A. Yes.

Q. And it would be underneath the work bench that you have described? A. Yes, it was about that high off the floor (indicating)."

"Q. And you would have to put the box down on that? A. Yes.

Q. And what would you do, bend? How would you get the box down there? A. I would mostly bend. When you went to work early of a morning you would be nice and fresh, you would do a bend of the knee; as the day went on and the more you lifted the tireder you got you wouldn't bother, you would bend over."

30 Although the plaintiff was packing shanks on the day that she was injured, she was also required to pack other cuts in the same way. For example, the plaintiff said that if she was packing necks and flaps, they were always boxed in the same way on the table behind her. She said, "you would have to fill them up, turn around, get your meat, fill them up". Although she did not herself know what the boxes weighed when full, there was evidence to suggest that they weighed about 27kg or thereabouts. The plaintiff said that they were always over 20kg and that the packers "simply filled them up with as much meat as [they] could".

31 The plaintiff expanded upon the system later in her evidence:

"Q. Now, so far as the box packing, if we can just go back to that topic for a moment, was concerned. The table of the kind that we have seen in exhibit C, that's the photograph of the-- A. Yes.

Q. --table with the two sides and the rollers in the middle? A. Yes.

Q. Can you just describe approximately what height that was to you? A. It was around about my knee height, might have been just a little bit higher.

Q. And you would have the box on the top of the flat surface? A. On the shoulder piece, yes.

Q. And when it was packed in the way that you have already described for his Honour, you would pick it up. And how far would you have to walk to put it down on the lower conveyor belt, what distance are we talking about?

A. Two or three steps. Because mostly doing the shanks I would have my box on the side where I was standing, and the girls that were doing the flaps in the next would be on the other side of that roller, on the table. Their boxes, you would have four boxes on there, and on that roller you would have a plastic bag, box bag, full of Glad wrap. That lay - between in layers with. And that would sit on those rollers so it was really easy for the girls to get."

32 The plaintiff said that she was not given any instruction in relation to picking up the full boxes and taking them across to put them on the low conveyor, or as to how she should or should not pick them up or bend or put them down.

33 In cross-examination the plaintiff confirmed that the tables were never next to the conveyor. She was not prepared to accept that they were ever placed next to the conveyor. She said, "No, never. They were always behind us". Her answers were consistently to the effect of the following:

"Q. Mrs Hoad, the tables, as you have called them, were placed next to the conveyor belt approximately as depicted in that plan that you have been looking at on every occasion when you were at work at the abattoir? A. No, sir. They were not."

34 Further questions and answers in the course of the plaintiff's cross-examination were to like effect. For example:

"Q. Mrs Hoad, going back to the location of the tables. I want to put to you that those tables with the rollers were located next to and on both sides of the conveyor system? A. No.

Q. And that the method of work which you engaged in, was to take items off the conveyor belt and put them into boxes located on top of the tables right next to the conveyor? A. No, they weren't they were behind us.

Q. And that when the boxes were full, you would, as you have told us this morning, wrap the plastic liner, close the box, push it across on to the rollers, and it would run down on to the lower conveyor? A. It was never that way when I worked there."

35 In response to the suggestion that on this issue she had lied in her evidence, the plaintiff responded, "No, sir, I am honest."

36 Lynette Porter gave evidence in the plaintiff's case. She said that she had been employed in the later part of 2003 at the defendant's meat processing plant. She worked there for the whole time that the plaintiff was actively employed. She said that she worked almost shoulder to shoulder with other workers packing in the boning room. She was asked about the system for packing boxes and the use of tables with rollers. She gave this evidence:

"Q. Were there any tables of the kind shown in the photograph which will be passed to you, which is exhibit C, that you saw anywhere in the boning room during the months that you worked there? A. Yeah, these tables were in the boning room.

Q. Whereabouts in relation to your position facing the conveyer belt were those tables located? A. Behind us.

Q. How far away? A. Pretty much right behind us.

Q. Did you use them for anything? A. Yes, we had our boxes on them for packing."

37 She gave a further description of what was involved:

"Q. And then what would you do with the filled box? A. And then we lift it on the bottom conveyor belt.

Q. So when you have gone to the table where the box is, how many steps away from the conveyor is that? A. It's right behind you. You just turn around. Very much just like that.

Q. So it's pretty close? A. Yes.

Q. So you pick the box up, and what motion did you have to go through to put it on to the bottom conveyor belt? A. You had to pick the box up - you had to go to the side of the - take and pick the box up. Because there wasn't enough room, so you went to the side, picked the box up, and then you had to put it down under, straighten up, and normally push it with our knee to straighten up to go on the conveyor belt."

38 Mrs Porter agreed that she had seen the tables set up against the conveyor in the way that was shown in some tendered photographs (and which I have found depicts them in the position for which they were designed to be used). However, while she conceded that she had seen them set up like that she said, "we never used them like that". She said that on the side where she worked there were up to six packers and three to four boners. Mrs Porter did not say that she had been directed to use the tables in the location behind her but said that that was "how we always work[ed] when I very first went there. That's how they were using them".

39 Mrs Porter agreed that the abattoir had retrenched her. She denied that she had spoken about her evidence with others or that they had "put their heads together". She denied that she was ill disposed to the defendant or that that affected her evidence. She said that with the table in the position up against the conveyor it was impossible for the boxes of meat to "roll under onto the conveyor". She said that was "because the boxes would go under and then they would tip and you had to get down under there and you had to turn the boxes on to the belt and the table was in the road to do that". Her concession that this had occurred carried with it the obvious result that she had used the tables on the "odd occasion" in the way that the defendant contended was always employed.

40 Lorna Pickering had worked at the abattoir from September 2003 until December 2004. She had been a full time meat packer. As with all other witnesses, her attention was drawn to a detailed plan of the boning room (Exhibit A) and she was asked to comment upon the layout it contained compared to the configuration when she worked there. For example, she gave the following evidence:

"Q. In what configuration or how did you stand or which direction did you face? A. These tables that these little people are working at were behind us and we worked at the conveyer belt on this white bit before, like in between the conveyer belt and the edge of it, that's where we worked."

41 She recalled that she worked in a line of approximately eight people and that there were four people opposite. Mrs Pickering also said that the packers worked shoulder to shoulder. She identified the tables with rollers as "the tables we packed our boxes on and they were behind us". She was asked about the tables depicted against the conveyor in some of the photographic exhibits:

"Q. Now, would you look, please, at a photograph, the photographs seven, nine and 11. Just have a look at that series of photographs. Were the tables in that position while you were doing your job at any stage during your employment? A. No. No, it was impossible to work with them there. There is no room for anyone to get in, to get the meat off the container to work on it. No."

42 Mrs Pickering said that they did use the system with the tables against the conveyor. She said, "we only tried it the once". She then answered the following question:

"Q. When was that? A. I don't recall the date exactly. It was just one day that we tried it. It was after my operations, because I was in that part of the boning room. I don't exactly know the date, but we tried it, and it didn't work. There was no way it was going to work. You can't get in there to pull the meat off the conveyor belt."

43 Mrs Pickering agreed that she had made a compensation claim and that she had been dismissed when she refused to undergo a drug test. She said that she was told that she had been dismissed because she was not suited to the job. She agreed that she was angry about it at the time but said that it did not bother her now. She denied that she was lying or, in effect, that she was giving the evidence that she gave because she was angry at the abattoir. She said "the only time I have ever seen those tables against those conveyor belts is in the morning when we got there after the cleaners had got there, and as soon as we got there they were moved".

44 Ellen Attenborough also worked at the abattoir when the plaintiff was there. She was put off in July 2004. She was shown Exhibit A and asked about the system of work:

"Q. How did you work? A. We faced the conveyor belt. And we were facing the conveyor belt, and we had a table behind us that we had boxes on, that depends what cut of meat you were doing, you would put in that box."

45 Mrs Attenborough gave further evidence about this:

"Q. And how would you get them on to the conveyor belt? A. The cutlets you would lift on. Sometimes you would, depending how many people worked on that side, one girl would always - like the table's up so she could push the box down. But if there wasn't enough room, the box - the table would be back, and you would actually lift the box up and put it on the conveyor belt.

Q. So there were occasions, were there, where the table with the rollers on it would be utilized to slide some boxes down when you were on that other side? A. On a rare occasion, yes.

Q. When you were on the bottom side of the conveyor, what was the position when you were on that side? A. Well, we had our packing tables as we - we caught them, we would have boxes on behind us. And we would take the meat off the conveyor belt, wrap it, or box it, and then when the boxes were full, we would pick up our box, and turn around, pick up the box, and take it and put it on the conveyor belt."

46 Later, in the course of answering the following questions, she stood back from the witness box and provided a demonstration conforming to the description she gave:

"Q. Now, in relation to boxing, when the box was behind you would you be kind enough to perhaps demonstrate what your physical movements would be in order to pick up the box and put it in to the conveyer? A. You would grab your meat, you turn around and pack it, you would pick up your box and then put it down on to the bottom conveyer belt when it was ready to go (demonstrating).

Q. That would involve you having to bend? A. Yes. You pick up your box, then you would bend and actually have to bend down and put it (demonstrating).

Q. You had your feet on the ground and you twisted your pelvis, is that right? A. Yeah.

47 Mrs Attenborough denied that she had ever seen the tables with rollers up against the conveyor as shown in the photographs or that she had ever worked with the tables in that position. That would appear to be in conflict with her evidence that she had worked with the tables as designed "on a rare occasion". She said that she had never been told not to use the tables in a position behind her as opposed to up against the conveyor.

48 In cross-examination the witness was again directed to the evidence that depicted the tables against the conveyor. She was asked about her use of that system:

"Q. That you used the tables with the rollers sometimes to put boxes down on to the conveyer belt, is that right? A. That's if you work with one girl. One girl she had been there and she has always done the legs of lamb. But this was room on that side because there would have only probably been four girls on that side of the whole conveyer belt from about ten backwards.

Q. How many were working on the other side? A. Probably eight, eight or more.

Q. And did you ever work on the side where the ten and 11 are identified, where you were putting boxes down the roller? A. No, because I tried it one day and I couldn't get it to work. My box, I had to repack the box, because I don't know what I did, it just didn't work. It was easier for me to pick up the box and put on the conveyer than try and roll it down that.

Q. It was easier for you to do that? A. Not weight wise, you still had to pick up your box and put it on the roller.

Q. You just pushed it across, didn't you? A. Well, I didn't because actually it would have taken more to push it across on to the roller than to pick it up and put it on the roller.

Q. Why do you say that? A. Well, you have got to push and if it has 25 kilos.

Q. It's being supported by the table until it reaches the roller, that's right, isn't it? A. Yeah, but you still have to push.

Q. The system that was used when you were working there was that these tables were next to the conveyers as shown in exhibit A? A. No."

49 Mrs Attenborough agreed that she was upset that she had been retrenched and not reinstated from her work at the abattoir. She said, "Yes, I was upset, but they did the wrong thing by us". She then explained her feelings in more detail:

"Q. That's your view. A. Well, why would you put all this money in to training, giving someone their vaccinations for all the things and then put them off and two weeks later - they promised - they said to us by phone call, in this next three months if we want you at a moments notice you are to come in and then two weeks after we have been put off they put other people on. Wouldn't you be cranky? Wouldn't you have thought they would have put the people that they had already trained in those jobs back on instead of hiring new people?

Q. You were cranky? A. I was cranky, but I wouldn't do anything to harm them."

50 Finally Mrs Attenborough agreed that she understood that the position of the tables was an important issue in the proceedings and that her evidence could support the plaintiff's case "in a very significant way in her claim". She denied that she would make up a story to assist the plaintiff or that she was doing so because she held a grudge against the abattoir. She also denied that she would tailor her evidence because she was cranky as the result of her partner not getting a job there.

51 Colleen Warby gave evidence by telephone from a hospital where her daughter had been admitted for treatment. Mrs Warby had been employed at the abattoir from September 2003 as a packer. Her attention was directed to the system of packing boxes and to the location of the tables:

"Q. Can you just describe for his Honour please what the process was of taking cuts of meat from the conveyer belt and putting them in to boxes, if that was the job you had to do? A. I stand with my back - where I was stationed I was putting the meat with my right hand, turning to the right, putting - the boxes were behind me.

Q. What were the boxes located on? A. A silver tray with rollers down the middle, you got two silver, like, little trays on each side and you got rollers down the middle.

Q. And whereabouts was that tray, as you called it, in relation to the conveyer belt? A. Behind us. The conveyer, we had to stand in front of the conveyer belt, the table was behind us, the conveyer belt was first, then there was us, then there was the table.

Q. And when you would pick up a cut of meat you would have to turn around to put it in the box? A. Yes.

Q. When your box was full what would you do with the box? A. Put the, there is plastic bag that goes in the boxes, once you think it's full enough you cover the plastic over it and then you pick it up and you lean down and you put it under on the bottom conveyer belt."

52 She was directed in cross-examination to the issue of the location of the tables as the following questions and answers reveal:

"Q. When you were working there, they were always up against the conveyor belt, weren't they? A. No, they weren't. They couldn't be.

Q. Why couldn't they be? A. Because we were there. There is no way them tables are against the conveyor belt because we wouldn't fit. The tables were always behind us."

53 Mrs Warby gave evidence suggesting that the size and number of women working on the packing line meant that space was at a premium. She went on with that topic as follows:

"Q. Is there any other reason which you might suggest for not having the tables up against the conveyor, apart from the size and number of the women working there? A. Yeah. Like, there was still - like, there is no way the conveyor belt would go between two women, because on each side you have got on one table there would be you do your flaps, on the necks. On the other side steel with the rollers down the middle, they would be dealing with the little shanks. So you have two women working on that, and there is no way in the world two of us can fit, you know. We had to be there, the table had to be behind us at all times, because we are lifting, putting them down. So yes, just all it's impossible to have them tables on the conveyor, they had to be behind us."

54 Mrs Warby agreed that she had been cranky when retrenched from her work. She denied that her evidence was influenced by this fact or that it was related to a dispute she was having about compensation for an injury that she sustained there. She said, "I would go back there tomorrow if they would have me". She said she "loved it out there".

55 Joshua Abberfield was a butcher by trade and had worked at the defendant's premises between May 2003 and July 2004. During his time there he worked as a boner. His attention was drawn to the photographs of the tables with two silver flat surfaces and a ramped or angled line of rollers. He had seen similar tables being used by the packers on the occasions that he had worked there. He gave the following evidence:

"Q. And whereabouts were they on the occasions that you saw them being used, were they up close to the conveyer belt in the way that is depicted in those photographs or were they somewhere else? A. Pulled back from the conveyer belt. Enough room for you or I to walk between the conveyer belt and the table.

Q. And did you ever see them being used for any purpose by any of the ladies? A. To take meat from the conveyer belt, place it in the bags or in to a bag in to the box or just trimmed in to a box which is placed on to the table.

Q. And did you see how the boxes were moved or shifted or got on to the low box conveyer belt when they were full? A. They'd have to be lifted from the table, you have to either turn or take a step back to put the box on to the bottom conveyer belt.

Q. Did you see the ladies do that? A. Yes, I did.

Q. Did you ever see the rollers utilised to slide the boxes down on to the conveyer belt? A. No, I did not."

56 Mr Abberfield denied that his recollection of what occurred in the boning room in 2003 was faulty.

57 Kim Myers is currently employed to work at the defendant's premises as a packer and worked there in that capacity when the plaintiff was employed. She started in October 2002. She said that the boning room was now doing a lot more work at a faster rate. She was shown the photographs of the tables in place against the conveyor. She gave the following evidence:

"Q. When you were working there in 2003, where were those tables located in relation to the conveyor system? A. After the - when we would go in of a morning, we used to move them over to the conveyor."

"Q. When you were working there, did you ever work with one of those tables behind you? A. Yes.

Q. Behind you? A. No, not behind me, no. No. We used to stand in between the two, one on each side, it was."

58 She described using the tables with central rollers to slide packed boxes onto the lower conveyor as follows:

"Q. And when the box is full, what did you do? A. Slide it from the - where it was being packed on to the conveyors, and it used to just slide under on to the lower conveyor belt."

59 Ms Myers denied experiencing any problem with the use of that method unless there had been a delay at the scales that caused boxes on the conveyor to back up. She experienced no problems with boxes coming from higher up in the system. She never observed a female packer working in the boning room with one of the "benches" (as she called them) behind her so that she had to lift the box and carry it and manually put it on the conveyer. She never saw the plaintiff perform such a manoeuvre.

At a glance

Court

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Before

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Judgment (492 paragraphs)

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Legislation Cited (1)

Cases Cited (19)

Cited By (3)