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[2008] NSWSC 981
Supreme Court of NSW
2008-07-02
Harrison J
Original judgment source is linked above.
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.
60 Ms Myers gave some interesting evidence to which it is necessary to refer. During her cross-examination she said this:
"Q. I want to suggest to you with the greatest of respect, that you regularly saw ladies putting boxes on that conveyer belt, that's how it was? A. But things have changed. Like I couldn't actually say in 2004 what I could remember. Things have changed out there so much.
Q. But certainly a much easier work place now, isn't it? A. Yes.
Q. I mean nobody has to worry about putting boxes on a low conveyer belt because it's not there? A. It's not there any more.
Q. It's at waist height or elbow height? A. Yes.
Q. People who pack boxes now simply have to push them along? A. Yes.
Q. Have you had to do that? A. Yes.
Q. It looks easy, is it? A. Yes.
Q. A lot easier than having to pick them up? A. Yes.
Q. How do you know that? A. Picking them up.
Q. How do you know it's easier than picking them up? A. I am presuming it would be, they are fairly heavy, would be, they are 20 kilos some of those boxes."
61 Ms Myers also gave evidence about a suggestion that the packers were working so close together that they would have been able to kiss the person next them. That evidence was as follows:
"Q. Can I make the suggestion, without being cheeky about it, if somebody said I was close enough to the person beside them I could have kissed them if I wanted to, is that a reasonable description? A. I wouldn't go that far.
Q. You could certainly touch them? A. Yes.
Q. And you could touch them on both sides? A. Yes.
Q. And the effect of that was that there was simply no room to have the tables up against the conveyor belt? A. The tables that needed to be there were there."
62 Jason Donnelly is a slaughterman who works at the defendant's premises. In 2003 and 2004 he was a foreman working in the boning room. In that capacity part of his job was to supervise the packers in the boning room. This would have included the plaintiff. Mr Donnelly's attention was drawn to the photographs of the tables in the boning room. He described the system that the packers used to put the boxes onto the lower conveyor in these terms:
"Q. Did you ever see packers working with those tables behind them out in the middle of the area between the conveyer and the trough against the wall? A. No.
Q. Could you explain to his Honour what the system was for packing products in to boxes and then despatching them from the area where the packers were working? A. The boxes were pulled from behind them, there is a rail behind them, placed on the flat surface, the product was packed on the flat surface.
Q. Indicating the flat surface of the table? A. Yep. And pushed on to the rollers and the conveyer belt.
Q. When the boxes went down the rollers on to the conveyer belt, were you ever aware of any boxes tipping? A. Not that I am aware of, no.
Q. Did you ever see any of the women packers lifting full boxes of product from behind them, that is between the conveyer and the wall, and manually placing them onto the bottom conveyer? A. No, I didn't see that.
Q. If you had seen that when you were employed there as a supervisor what would you have done? A. I would have retrained them, I suppose. I never saw it, so I didn't have to do anything about it."
63 Mr Donnelly confirmed that the plaintiff was a good worker. He said this about her:
"Q. Well, I want to suggest to you that during the months she was working in the boning room, she was clearly a fast worker? A. Yeah, she was good.
Q. She regularly finished what she had to do ahead of time and helped other girls? A. Yeah, she would help other girls out.
Q. Indeed, you were able to call on her as a bit of a fixer to go and help people who might be slower? A. Yeah."
64 He was also taken to the question of how many workers (boners and packers) were required to get access to the conveyor to perform their duties. The majority of the evidence about this is not altogether satisfactory and appears to have suffered from confusion about precisely what periods were being recalled by any particular witness. However, as a foreman, Mr Donnelly clearly appeared to have had an advantage and gave the following evidence about it:
"Q. And that gives us 14 or perhaps up to 16 in the line along that conveyor belt? A. Yeah, it was very cramped.
Q. And a description by the girls that they were working essentially shoulder to shoulder, that's true, isn't it? A. Yeah."
65 Mr Donnelly was asked to comment upon the 'kissing' metaphor that had been put to Ms Myers. He said this:
"Q. And indeed, if - and I don't mean this literally - if one of the ladies said I was sufficiently close, if I wanted to I could kiss the girl beside me. I am not suggesting they did that? A. No.
Q. But that was a reasonable metaphor of how close they were? A. Fairly close."
66 His evidence on the position of the tables, however, did not in my view possess the same degree of certainty. He gave an answer to the following question on this critical issue:
"Q. And so far as the period of time, whatever it was like before or after, what I want to suggest to you is while [the plaintiff] was there, regularly in the mornings, at the start of the shift, not every day but more often than not, the tables might be in place similar to the way set out in that photo. The girls pulled them back because otherwise they couldn't fit in and do their jobs? A. No. I understand tables were brought up against the belt."
67 Later in his cross-examination Mr Donnelly was taken back to the topic:
"Q. You see, when the line had got busy, and you had up to six people standing on a bench, there was simply no room for those tables up against the conveyor belt, was there? A. Them tables were against the conveyor belt.
Q. You see, if somebody had come in and seen that they were not, you would have been in strife, wouldn't you? A. That's right.
Q. And the suggestion that they weren't amounts to a suggestion that you let something happen that you shouldn't have let happen, isn't it? That's how you understand what I am putting to you? A. Yeah."
68 Mr Donnelly also answered some further questions in what to my observation was a less than confident fashion:
"Q. In the ordinary course of a day, I want to suggest to you some ladies would be picking boxes up and putting them on the conveyor belt manually. Do you agree with that? A. Empty boxes.
Q. No, full boxes? A. No, not to my knowledge, no."
69 However, Mr Donnelly denied the suggestion put to him that he was not telling the truth. He said, "I am telling the truth, I don't know what you want me to say".
70 Bonnie Seagrott is currently a carton meat inspector employed at the defendant's premises. In 2003 and 2004 she was employed as a packer and had been so employed since 2002. She identified photographs of stainless steel table units with rollers in the middle of them as ones of the type that were used at the abattoir. The photographs showed them located right next to the conveyor. She was asked about that:
"Q. Is that the way the boning room was set up for work in 2003? A. Yes. Sometimes of a morning when we come in, after the cleaners had been in, the tables were moved out a little bit, and you had to push them over so that you could use them so the meat would go on the conveyor."
71 Ms Seagrott said that when the boxes were full they were slid down the rollers on to the conveyor. She never observed any problems with the boxes tipping or turning as they went down the rollers to the conveyor. It was her evidence that, "We never lifted boxes. They had the rollers. We never lifted boxes". Ms Seagrott's credit was then directly challenged in cross-examination as the following questions reveal:
"Q. I want to suggest to you that you are giving evidence which is not true? A. Where?
Q. In relation to the location of the tables? A. No, it's true. The tables were never behind us. If you pack meat in to a bulk box they were on those silver tables and they were slid under on the belt on to the conveyer.
Q. Whatever might have happened in 2002 or the first part of 2003 I am suggesting to you squarely and straight up that's not what happened in the later half of 2003 and the first part of 2004? A. Well, that's not the way I remember it".
72 Peter McLeod is the current OH&S supervisor for the defendant. In 2003 he was the training co-ordinator. He carried out the plaintiff's training and induction. In 2003 Julie Carlon performed the job that he now performs. She left that job in mid-2004. Wade Lewis took over from her before Mr McLeod was appointed to the role.
73 Mr McLeod said that it was not his practice to give instructions to new women employees who were to be packers about how to lift 25kg or 30kg boxes. This was simply because they were not required to lift that sort of weight.
74 Mr McLeod said that in 2004 he went into the boning room on at least a daily basis. He said it would be several times daily but that it depended upon his workload and what was being done on the day. He said that he never observed the women packers working with the tables behind them and never observed women packers lifting full boxes containing cuts of meat and manually putting them on the conveyor.
75 Mr McLeod was asked a series of questions about his tasks after these proceedings were commenced. Some of those questions related to statements provided to him by prospective witnesses. One of those was Bonnie Seagrott whose evidence is dealt with earlier in these reasons. Mr McLeod volunteered the following information about Ms Seagrott:
"Q. In relation to a critical issue, as you understood it, namely whether any lifting was occurring in the boning room, you didn't take a statement from Bonnie? A. No, Bonnie was hesitant to get involved.
Q. Did that mean you asked for a statement and she didn't want to give one, or you didn't ask for one? A. I didn't ask for one."
76 This aspect of Mr McLeod's evidence was not explored further with him and regrettably was not taken up with Ms Seagrott during her own evidence.
77 Finally in cross-examination, Mr McLeod was taken back to the issue of the placement of the tables. He dealt with the matter in response to the following questions:
"Q. I want to suggest to you quite clearly, sir, on occasions when you walked through the boning room? A. Yes.
Q. You saw a situation where the number of ladies packing, in combination with the number of boners, on that bottom side of the conveyor belt closest to the wall, was such that the tables that they were using for the purpose of packing into boxes, were pulled back from the conveyor belt and were in fact physically located behind them? A. No, I don't recall that." John McClusky
78 John McClusky is the defendant's current operations manager. He held that position in 2003 and he has held it for 25 years. It had been part of his duties to be involved in the design and to supervise the construction of the defendant's plant in Tamworth. When the plant was first constructed and opened in 2001 it had a capacity to handle as many as 1000 carcasses per day.
79 Changes were made to the boning room configuration in 2004. This significantly increased the capacity of the abattoir to as many as 4000 animals per day depending on seasonal variations. Mr McClusky said that the changes that were made in the boning room in 2004 were not in any way the result of a perception on his part that there was anything wrong with the existing set-up in terms of occupational health and safety.
80 In 2003 he went into the boning room every day that he was at the plant and thought that that would have been about three days each week. His attention was directed to the photographs of the stainless steel tables with the angled rollers. He was asked the following questions:
"Q. Might I also show the witness exhibit 7 and 11. You can see from these photographs that the stainless steel worktables are located immediately adjacent to the conveyer? A. Yes.
Q. When you were in the boning room on the occasions you have told us about in 2003 where were those tables located whilst work was going on? A. Where they stood there.
Q. Did you ever see those tables located some distance away from the conveyer with packers standing between those tables and the workbench? A. No".
81 Mr McClusky said that in terms of weights of boxes the heaviest box that was produced in the boning room by the packers in 2003 was 27.2kg and the maximum carton weight was probably 20kg. His attention was again directed to the issue of the position of the tables:
"Q. Could you tell his Honour how it was that you observed the packers working, in terms of taking product from the middle level conveyer, putting it in to boxes, and despatching the boxes from the areas that they were working in? A. By my mind every packer got the piece of meat they had to pack in that box, it was picked from the top conveyer, put in to the box where they were working and once full they were pushed in to the rollers and down in the conveyer underneath, which took them to the weigh station. That room was designed that way for the simple reason of any lifting at all. It still happens today in both abattoirs.
Q. Did you ever observe any difficulties with boxes rolling down on to the conveyer in terms of the boxes tipping up or tipping over? A. Not that I am aware of.
Q. Was such a problem ever reported to you? A. No".
82 Mr McClusky said what would have happened if he had ever seen such a system being used:
"Q. You say you have never seen that? A. I have never seen that. And if I would see any worker - Pete McLeod is out there also - lifting boxes, well, mate, I would be straight to the foreman.
Q. Why is that? A. Why is that?
Q. Yes. A. Because it's against the regulations.
Q. To lift boxes? A. Of a heavy weight, yes, females.
Q. And when you say boxes are you referring to the boxes of lamb that were packed and put on that bottom conveyer by whatever means? A. That's correct."
83 At pages 293 to 294 of the transcript there is recorded a discussion about what would follow if I were to accept the plaintiff's version about the system of work that she and some of her former fellow workers described in their evidence. It was quite properly conceded on behalf of the defendant that, if the system described by the plaintiff were ultimately to be accepted by me as the system that was adopted by the defendant, either by design or default, at the time when the plaintiff was injured, there was no issue that such a system was unsafe. This agreement does not dispose of the issue of causation having regard to the medical and other evidence, to which reference is made later in these reasons.
84 It seems to be reasonably, if not entirely, uncontentious that the steel tables with the angled rollers were designed for use in the manner suggested by the witnesses for the defendant. It also seems to me that they were not discarded in 2004 or thereabouts because their use as designed proved difficult, but because they became obsolete when the boning room and the conveyor system were reconfigured. It will be apparent that the defendant's submissions on their use, or misuse, take strength from a likelihood that in those circumstances they would have been used by the packers in the way intended and that such a system would have been enforced by management on at least OH&S grounds if not on others.
85 This inference has to be compared to other evidence. The plaintiff was adamant that the tables were not used as designed but were only incorporated as part of a system that had arisen ad hoc and perpetuated by the packers as a matter of convenience and preference. The plaintiff's evidence on this was very clear. The tables were used from a position behind the packers and not as designed. She had never been instructed otherwise and was injured in performing her work in the method she described.
86 The plaintiff necessarily had the most to lose by acceptance of any other version of what occurred. I have taken this into account when assessing her evidence. Even so, the plaintiff struck me as a truthful and impressive witness. She exuded an intelligence that belied her truncated education. She did not exaggerate and she did not evade questions in any way that was apparent to me. She had any air of genuine indignation when fielding suggestions that her evidence or memory were faulty or selective. Her answer at par [33] above, "No, sir. They were not", is but one example of this. Her version of what occurred when she was injured was not successfully attacked.
87 The plaintiff had considerable support for her version. Mrs Porter said that the tables were "never used . . . like that". She conceded that the tables had been used as designed on the "odd occasion", but the burden of her evidence was that the system did not work and that the packers discarded it. She and other packers used the tables in a position behind them as a practical and effective means of performing their work. Mrs Porter was an impressive witness whose version of events was not obviously incredible or exposed to doubt.
88 Mrs Pickering was to like effect. I found her response, prompted by photographs of the tables in the designated configuration, that "it was impossible to work with them there", to be wholly credible, particularly in combination with her complaint that with so many packers there "was no room for anyone to get in". This is a matter that the defendant's witnesses Ms Myers and Mr Donnelly effectively acknowledged in slightly different terms. Mrs Pickering was in fact one of a number of witnesses either to use or to agree with the expression "shoulder to shoulder" as an accurate description of how the packers worked at the conveyor belt. This supported the plaintiff's contention that the tables could not be, and were not, used as designed because the line was in effect simply too crowded. There was no evidence from the defendant to support the suggestion that Mrs Pickering bore any animus toward the defendant following her dismissal and no evidence to contradict her denial that she did.
89 Mrs Attenborough also emphasised the limited space that was available. She agreed to the use of the tables adjacent to the conveyor belt "on a rare occasion". She wholly supported the plaintiff's version of the way in which boxes were loaded onto the conveyor belt. Indeed, her impromptu demonstration given in the course of her evidence was to my observation entirely convincing and performed without apparent artifice. Whether or not Mrs Attenborough originally had been told to use the tables up against the conveyor belt, I accept her evidence and I find that she had never been told not to do so. Moreover, Mrs Attenborough frankly engaged her cross-examiner on her views about the defendant. In saying that it had done the wrong thing she was referring to having been trained and vaccinated only to be retrenched two weeks later. This unsurprisingly made her "cranky". However, she said that she would not do anything to harm the defendant. She did not suggest that she did not understand the significance of her evidence to the plaintiff's case on the issue of the position of the tables. She denied that she would make up a story to assist the plaintiff for any reason and her denial was truthful as far as I could discern.
90 Mrs Warby referred to the tables as "silver trays with rollers". No other witness used that expression. She said that there was "no way them tables are against the conveyor belt" and gave as her reason for saying so that "we wouldn't fit". This was an unprompted and patently truthful resort to the theme of insufficient space for the number of packers employed. "There is no way in the world two of us can fit". These words had a genuine ring of truth about them. I did not get the impression that Mrs Warby would manufacture evidence against the defendant because she had been retrenched. Her evidence that she loved working there and would "go back there tomorrow if they would have" her struck me as a spontaneous and honest response.
91 In a similar vein, Mr Abberfield gave evidence in a way that impressed me as truthful. He described the distance between the tables and the conveyor belt when the packers were working there as "enough room for you or I to walk between them". This was in one sense a curious and unusual response to a question about the position of the tables but arguably one that drew upon his mental picture of the tables in use at the time. Mr Abberfield denied that his recollection was faulty and the contrary was not demonstrated by cross-examination of him.
92 Ms Myers' evidence was to the contrary. However, she was prepared to concede, relevantly in my opinion, that the packers were so close that they could touch each other "on both sides". This does not sit well with the use of a system that would have had only two packers together separated from those on either side by the tables. Other witnesses spoke of them being "shoulder to shoulder". I consider that Ms Myers' response to the proposition that there was simply no room to have the tables against the conveyor belt, when she said, "[t]he tables that needed to be there were there", to have been both unnecessarily defensive and to some extent unresponsive. It did not impress me with the feeling that her evidence was wholly frank.
93 Mr Donnelly on the other hand impressed me as very straightforward. It was his evidence that the packers were working "shoulder to shoulder" and that the conditions were "very cramped". His recollection that as many as 14 to 16 packers could have been working at the conveyor belt at any time arguably leaves little, if any, room for the use of the tables in between. The packers were "fairly close" according to him, which struck me as a knowing and somewhat laconic understatement. He spoke in just this way when he said, "I understand tables were brought up against the belt". His under emphasis of the underlying proposition was particularly obvious in my opinion. He was, after all, the foreman at the time. Mr Donnelly's protestation that he was telling the truth was in my view also truthful.
94 Mr McLeod appeared to me to find himself in a difficult position in the witness box. He gave me the impression of an absolutely loyal and dedicated employee of Meat Industry Services Pty Ltd who had been catapulted into the middle of a legal dispute that he clearly would have preferred to avoid. Mr McLeod gave this impression when I viewed the premises of the defendant in the company of the parties and their legal representatives prior to taking evidence and he continued to do so as the case progressed. He was to my observation distinctly uncomfortable giving his evidence, although I hasten to add that the precise reason for his discomfort did not become apparent to me. I did get the impression that he felt that any criticism of the defendant was a criticism of him personally and I consider that he was unnecessarily defensive in many of his answers. I had a corresponding difficulty feeling comfortable with much of what he had to say.
95 He attended the boning room by his own account up to several times daily in the relevant period. Even so, on the issue of the placement of the tables being pulled back from the conveyor belt and located physically behind the packers, he was only able to say that he did not recall that. With respect to Mr McLeod, that answer was not to my observation very convincing.
96 Ms Seagrott was even less convincing. She appeared to me to be very uncomfortable and distracted in the witness box in a way that transcended what one might ordinarily expect from a witness who was understandably nervous in the court environment. However, it is important to record that this was my impression of Ms Seagrott at the time. Review of the transcript of her evidence does not reveal any objective examples of anything unfavourable to her or anything that empirically supports the impression that I formed of her. It would not in those circumstances be appropriate to reject or otherwise qualify her evidence, which was unfalteringly supportive of the defendant's version of what occurred, only upon the basis of my idiosyncratic impression. Moreover, there is no other basis to do so.
97 Mr McClusky gave me the impression of a very busy man who, much in the way of Mr McLeod, would have preferred to be attending to what he considered to be more important and productive matters than being in a witness box. His evidence was unexceptionable. I did not get the impression, however, that the precise location of stainless steel tables with inclined rollers in the boning room, or the way that they were used by packers, in 2003 or 2004 was very close to being the first thing on his mind back then or that it had achieved any greater significance since. No reports of problems came to his attention. He appeared to describe what should have occurred in a mechanical and dispassionate fashion. He gave me the impression that Mr McLeod was the better person to ask about these things. However, none of the foregoing is intended in any way to be critical of Mr McClusky or the evidence that he gave.
98 In the circumstances I am more than reasonably satisfied that the plaintiff's version of events is to be preferred. There are no contradictions of her version among the witnesses that she called. There is some support for her version in the evidence called by the defendant. I am satisfied that at the time the plaintiff was injured she was working with the stainless steel table behind her and that that system had been in operation for some considerable time before that. I cannot find on the evidence that the plaintiff and her fellow packers were instructed to work that way. I do find, however, that the defendant did not ever instruct the plaintiff or her fellow packers that they should not work that way. In the circumstances, the system that the defendant permitted or tolerated was unsafe.
Was the plaintiff's injury caused by the defendant's negligence or breach of duty (unsafe system)?
99 The precise mechanism of the plaintiff's injury was the subject of considerable controversy. This controversy centred neither unnaturally nor unexpectedly around different versions of what happened given by the plaintiff to those who attended her at work at the time she was injured and subsequently to medical practitioners to whom she resorted for care. This issue is not so much whether the plaintiff's description of lifting a box and turning could have caused her injury but whether or not that was actually what she was doing when it was sustained.
100 The plaintiff told her general practitioner Dr Stacey when she presented to him on the day of the incident at work that she had suffered a gradual onset of low back pain associated with numbness down both of her legs. She told the doctor that she was required whilst standing to reach over a table and grasp sheepshanks that she then loaded into a box until it was full. From there she was required to lift the full box onto a moving conveyor belt. He was told that each box might weigh as much as 30kg. The process was repeated continually throughout the day.
101 The plaintiff told the doctor that her pain commenced at around 9.00am and that it gradually increased in severity during the day. By the time he saw the plaintiff at approximately 5.00pm she was complaining of central low back pain, and numbness radiating down the back of both her legs as far as her knees. She was able to flex her toes but had reduced extension and lateral flexion to both sides. The plaintiff had significant tenderness over L5/S1 and straight leg raising was to 90 degrees on both sides with some pain in her back. He made a provisional diagnosis of L5/S1 herniated intervertebral disc.
102 The plaintiff's description of what she told Dr Hopcroft was then raised during the course of the plaintiff's cross-examination. Some of this is referred to at pars [19] and [20] above. In addition, the injury details that were included in the worker's compensation claim form described the event as taking meat off a conveyor belt to pack whilst standing on tiptoes: see par [21] above.
103 Dr Dandie was the surgeon to whom the plaintiff was referred for surgery: see below. The plaintiff gave a history to him of having developed lower back pain associated with numbness in both legs. The pain commenced whilst she was at work at the local abattoir. Dr Dandie was told that the plaintiff's work involved flexing her lumbar spine over a table to load boxes of meat weighing 30kg that were then lifted onto a conveyor belt.
104 The plaintiff told Dr Walker, to whom she was referred for a medico-legal consultation, that she was working on a production line when she bent forwards and had to steady herself on a pole. She had at first a funny feeling in her legs. Following the tea break she lifted a box of sheepshanks and endeavoured to throw them onto a conveyor belt. As she did so she bent over and then found that she could not straighten up. She could not reach the conveyor belt and she said that for a relatively short time she was unable to move her legs. Dr Walker's second report dated 20 February 2007 referred to the fact that the plaintiff's work on the production line involved repetitive twisting and bending.
105 Dr Matheson who prepared a series of four reports on behalf of the defendant gave evidence about this. In cross-examination he said this:
"Q. Well, what was the basis upon which you said that one could assume that there is some prolapse of the T11/12 disc which could have been work related. What's the basis for that opinion? A. That I had no proof of the lesion being present prior to the event at work.
Q. And in the absence of any indication that it may have been there before, an available explanation was what happened at work, was it not? A. Yes."
106 There was no evidence to support the suggestion that the plaintiff's thoracic spinal lesion predated her incident at work. Dr Matheson was subsequently taken to a report of Dr Yeo and to a history recorded in his report upon which Dr Matheson himself commented. That evidence was as follows:
"Q. Putting aside reliability of the history or otherwise. I think you observe in your report of the third of July 2007 that the history apparently given to Dr Yeo included a presentation with low back pain and pain down the backs of both knees and to the calves. Putting aside the reliability of that history or the date that it was given, might we understand that that's classically, or at least arguably, a series of symptoms referable to a possible lesion of the lumbar spinal level or one of them? A. Yes, your Honour."
107 The plaintiff's case as originally formulated included allegations that she was required to work at a bench or table that was too high for her and that she was required repetitively to perform work in such a way that imposed a strain on her back. This case was effectively abandoned and the plaintiff's case became limited to the unsafe system allegation with which I have already dealt. This abandonment of other allegations did not occur until at least some evidence touching these other allegations had been given. In the end result I have not been required to review or assess that evidence.
108 The same problem arose in relation to the assessment of what the plaintiff said in the witness box compared to what she had reported to others outside court about what happened to her at work. This has led to a situation where medical reports have included material that was beside the point but which the defendant now wishes to assert forms part of an inconsistent history casting doubt on the plaintiff's evidence of precisely what occurred. However, the plaintiff's evidence given before me was clear and unambiguous. I have recorded part of it at par [15] above. The defendant wishes to contend that assertions such as that the plaintiff went numb in her legs or could not move them for a time are physiologically inconsistent with and therefore contradictory of the plaintiff's (later) known spinal pathology. In other words, the defendant contends that the mechanics of the complaint and the reported symptoms do not correspond to what might be expected from thoracic lesions, as opposed to lumbar lesions, in the plaintiff's spine. On one view the plaintiff's lumbar lesions did not develop until later partly as a result of the effects of surgery on her thoracic lesion.
109 In my view this analysis imposes an unrealistic and unreasonably burdensome requirement upon the plaintiff in as much as it imposes on her, when in a painful and distressed state, the expectation that she will accurately observe and recall the finest details of how she felt when she was injured. I have no difficulty accepting that the plaintiff sustained a traumatic spinal lesion that was immediately painful and disabling. None of the versions given by her is inconsistent with the other when allowance is made for how she must have felt at the time. As Dr Hopcroft observed in his report dated 2 March 2006, the plaintiff "has been left in dire straits having suffered a significant injury to her thoracolumbar spine and having developed a T11/12 intervertebral disc protrusion at that site". This is what happened to the plaintiff on 29 January 2004 and no comparison of her subsequent descriptions of what happened to her leads me to form a different view. The plaintiff was in a distressed state immediately following her injury and thereafter and some allowance for epistemological variables in her reports has to be made.
110 I am satisfied and I find as a fact that the plaintiff sustained an injury to her thoracic spine as the result and in the course of her work at the defendant's premises where she was required repetitively to bend and to lift boxes of meat onto a conveyor belt in the way that she described. As Dr Dandie said in his evidence, "I believe the thoracic disc injury was caused by the [plaintiff's] lifting practices". The descriptions given by the plaintiff of symptoms apparently referable only to the existence of a lumbar spinal pathology are not clearly explained on the evidence. It may be that the plaintiff in fact sustained an injury to her lumbar spine that was not immediately detected or that was otherwise masked by the immediate and significant presentation of problems with her thoracic spine. There is a redolence of this suggestion or possibility in one answer given by Dr Matheson to his cross-examiner:
"Q. If, in fact, the symptoms came on following an incident in which she lifted a heavy box and twisted and bent to put it on a lower level, if that were found to be a fact would that change your view in relation to the attribution of L3/4? A. Such an incident with her back could precipitate symptoms but this is by way of an exacerbation. What we have no evidence for is that there was any fresh pathology associated with that incident. " (Emphasis added).
111 In the final analysis, this issue does not need to be resolved. I consider that the plaintiff's injuries were the direct result of the defendant's unsafe system requiring her repetitively to lift boxes of meat products weighing as much as 27kg and to bend whilst carrying these boxes in order to place them onto a conveyor belt at below waist height.
What was the nature and extent of the plaintiff's pre-injury condition?
112 There is no dispute in these proceedings that the plaintiff had a degenerative spinal condition when she commenced work at the defendant's premises. The plaintiff said that it remained asymptomatic at all times before she was injured at work and the defendant's case did not put that contention in issue. Rather, the defendant proceeded upon the basis that its liability or responsibility for any loss that it caused had to be reduced by reference to the likelihood, if not the certainty, that the natural progression of the plaintiff's spinal condition would eventually have produced disabling symptoms at some time even without the intervening incident that caused this to occur in fact. This issue demands a consideration of the medical opinion that ultimately became evidence in the proceedings.
113 Dr Stacey first met the plaintiff in March 2003. At no time did she report any history or complaint of back pain. Prior to her injury at work the plaintiff had mentioned pain in her left hip and low back in May 2003 but a full back examination by Dr Stacey at that time was completely normal. He made a diagnosis of left trochanteric bursitis or what he described as a non-serious but painful inflammation of the hip. An x-ray of the plaintiff's lumbosacral spine on 16 May 2003 (referred to at par [10] above) was reported as normal. In his report dated 5 June 2008 Dr Stacey clarified what he meant by "normal":
"The changes described here are mild scoliosis, which is usually developmental, common, and when mild, without any symptoms of consequence for the patient. At the age of 51, at least half of all people are some signs of spinal degenerative processes, which may include narrowing of disc spaces, (usually due to mild compression or shrinkage of the disc), slight movement of one disc upon another (listhesis), seen in this instance, and numerous bony changes suggestive of 'wear and tear'. Standard radiology terminology would generally rank abnormal findings as mild, moderate, or severe. Mrs Hoad's x-ray at this time showed signs of degeneration, but use of the word 'mild' twice and the phrase 'may well be degenerative' do not imply significant severity. Mrs Hoad's x-ray was therefore not completely normal, as one would expect to see in an uninjured 18-year-old, but in my view was normal for her age."
114 He was of the opinion that osteoarthritic changes noted in various x-rays and scans with which he was subsequently provided would have developed over many years prior to the plaintiff's injury at work. Dr Stacey's diagnosis was that the plaintiff suffered two intervertebral disc prolapses at the T11/12 and L3/4 spinal levels. This then resulted in spinal canal stenosis with compression of the spinal cord and lower lumbar nerve endings. This caused the plaintiff to experience leg pain, paraesthesia and weakness. The plaintiff required surgery for these conditions.
115 Dr Dandie performed that surgery. Before doing so he ordered an MRI scan of the plaintiff's lumbar spine. That showed a T11/12 focal disc herniation centrally causing compression of her distal spinal cord. His impression was that she had thoracic myelopathy secondary to a T11/T12 disc herniation. He described the plaintiff as having widespread degenerative changes in her lower back. It is interesting to observe that Dr Dandie described the plaintiff as having been "obviously surprised" at the findings on the MRI and the scale of the surgery required to solve her problems. This is in my view indirect but clear support for the asymptomatic nature of the plaintiff's pre-injury condition.
116 Even stronger support for this fact is somewhat ironically to be found in a Meat Industry Services Pty Ltd document headed "Robyn Hoad Learning/Literacy/Numeracy needs" filled out by the plaintiff but tendered by the defendant. In response to the instruction on the document "Write about two things that interest you", the plaintiff responded, inter alia, "Gardening, I can do it all day". The document is dated 4 September 2004. The plaintiff later gave oral evidence about her gardening activities since the accident. In addition, Dorothy Rendell described the plaintiff as "physically fit" in a document dated 28 August 2003 sent by her to the defendant as part of the plaintiff's original application for employment.
117 The surgical history that followed is significant, both because of the insight it gives into the nature and extent of the plaintiff's thoracic lesion, and also to the extent that it reveals the likely underlying condition of the plaintiff's spine immediately prior to her work injury. The plaintiff underwent a T11/T12 discectomy via a left thoracotomy in late May 2004. She proceeded well until about the end of June 2004 when she had a sudden onset of lower back pain associated with bilateral posterior thigh pain and paraesthesia. As at the date of his report on 26 July 2004 Dr Dandie could not see any neurological compressive lesion in the plaintiff's thoracic, lumbar spinal cord or cauda equina and nerve roots. However, the plaintiff developed a mild anterolisthesis at the L3/4 level.
118 By the time Dr Dandie reviewed the plaintiff on 20 June 2005 there had been a significant change. She had by then developed quite severe canal stenosis at the L3/4 levels as well as at the L2/3 and L4/5 levels. Dr Dandie opined at that time that the plaintiff's pain was attributable to ongoing instability at the L3/4 level, with quite severe canal stenosis and neurogenic claudication. It was his opinion that the plaintiff had no option than to undergo surgical decompression of the nerve roots and fusion of the L3/4 level. This is what ultimately occurred, although not until approximately August 2006.
119 Dr Matheson said, with respect to the plaintiff's pre-injury lumbar spinal pathology that, "she does have a lot of pathology, more than the average person". This clearly pre-dated 29 January 2004. The plaintiff's surgical history was in my view the result of her having sustained an injury to her thoracic spine with consequent adverse effects upon an already vulnerable, but asymptomatic, spine at the lumbar levels with the extensive pathology to which Dr Matheson referred. This gives the true picture of the plaintiff's pre-injury condition.
What part of the plaintiff's continuing disabilities are related to her injury at work?
120 This issue requires a determination of just what was the plaintiff's injury at work.
121 In his report dated 1 August 2007 Dr Yeo said that the prolapse of the plaintiff's T11/T12 disc was directly related to her "work requirements". He said that the continuing increased low back pain is the result of further damage to the pre-existing degenerative changes in the region of the lumbar spine. In his report dated 16 August 2007 Dr Yeo attempted to clarify his opinion noting that the pre-existing degenerative changes in the region of the lumbar spine are "a consequence of the work related injuries rather than as a result of surgery to stabilise the prolapsed T11/T12 intervertebral discs". No elucidation of this opinion is given.
122 Dr Matheson expressed the view that there was no connection between the thoracic spinal injury and any subsequently developed or developing lumbar spinal pathology. He was unconvinced that the plaintiff's lumbar spinal problems were related to her thoracic insult or to the post-operative effects of adjacent segment disease. I do not accept this opinion.
123 Dr Dandie certainly disagreed with it. The plaintiff continues to suffer significantly from the effects of degeneration of her lumbar spine. Dr Dandie was asked about adjacent segment disease and the causes of the plaintiff's continuing lumbar spinal problems:
"Q. And those degenerative changes are not occurring today only because she some years ago had an operation at L3/ L4? A. Well, the degenerative changes that would be occurring in her spine today would be due to a whole host of factors, including age related change, including changed spinal mechanics due to the previous surgeries she has had, due to accelerated degenerative problems associated with her lifting practices.
Q. Now, the effect of increased degenerative change to L4/ L5 as a result of an operation at L3/L4, is quite common phenomenon? A. Yes.
Q. But it is less or there is less impact from an operation at T11/T12 on L4/L5 than there would be from an operation at L3/L4? A. Yes."
124 It is also to some extent difficult to accommodate the opinions of Dr Yeo and Dr Dandie on this issue. Dr Yeo's "clarifying report" of 16 August 2007 bears all the hallmarks of a report prepared in an effort to address what appears to have been thought to be a forensic problem for the plaintiff arising from an earlier report. I have not found this helpful. On balance I prefer the opinion of Dr Dandie as the treating surgeon, that the surgery at the thoracic levels of the plaintiff's spine played a role in her continuing lumbar spinal condition and associated disability. I do not accept that the plaintiff sustained or suffers from a lumbar spinal condition that is independently related to her work other than by reason of its connection to the injury to her thoracic spine and all that it produced. However, for the plaintiff's purposes, as a matter of causation, that is all that is required. I have already found that the plaintiff's thoracic spinal injury was caused by the defendant's unsafe system of work. In my opinion that injury has made a substantial contribution to the plaintiff's present disabled condition, which now stems predominantly from her lumbar region.
125 This contribution may be summarised as follows. The plaintiff had pre-injury degenerative changes in her lumbar spine. These were asymptomatic. She suffered an injury at work that caused a herniation of a thoracic disc and associated problems. That condition required surgery to correct it. The plaintiff subsequently developed symptoms in her lumbar spine that ultimately became severely disabling. She underwent surgery for that condition. Despite some initial improvement following that surgery, the plaintiff's condition deteriorated and she remains disabled as a result. I find that the plaintiff's disabling lumbar spinal condition was caused by the disruption to her spinal mechanics following her thoracic spinal surgery. If the plaintiff's injury at work and her consequent thoracic surgery were not the sole causes of her current disabilities they made a significant and material contribution. (I have earlier noted my suspicion that the plaintiff's lumbar spine may in fact have been injured in the incident at work, as her symptoms and complaints are to some extent referable to a pathology at that level, but that in the events that occurred the significance of her thoracic injury initially overshadowed it and masked its detection. I have, however, not decided this case by incorporating that suspicion in my reasoning process).
126 In the above sense, therefore, all of the plaintiff's disabilities were related to her injury at work. That is not the same as a finding that the plaintiff would not have become disabled without an injury at work. That issue is considered next.
Would the plaintiff have become disabled even without the defendant's negligence and if so when and to what extent?
127 Dr Dandie did not agree with the proposition that the plaintiff would have come to a disabling back condition even if she had not worked. He expressed the view that it would be "hard to imagine if [the plaintiff] wasn't involved in the degree of lifting that she did for four and a half months, that she wouldn't have been able to continue working". He agreed, however, upon the basis of that answer, that he could not exclude the possibility that the plaintiff would have come to a disabling back condition even if she had not worked at the abattoir.
"Q. Doctor, just so that I understand it, do I take it that you disagreed with the proposition that Mrs Hoad would inevitably have sustained a symptomatic back condition even without what happened to her at work? A. I don't think - I think the likelihood she would have developed a symptomatic back condition, had she not been doing the lifting, is only very low. The - obviously depends on the type of task that she would do instead. But if she is doing sedentary type work, there is no reason to expect that she wouldn't have been able to work for however long a natural working life would be. The - yeah, I am sorry, that statement, that proposition as it's worded confuses me and I lose track.
Q. Let me just put it this way. There is an issue in these proceedings about whether Mrs Hoad would have ultimately come to a disabling back condition even without work? A. I wouldn't think that's true.
Q. You would not? A. No. The - I mean, 80 per cent of people will have significant back pain at some stage during their life. Everyone accrues degenerative problems just from aging, doesn't matter what sort of work they are doing. Mrs Hoad may well have had episodes of back symptoms, but whether it would have turned into a severe symptom complex that prevented her from continuing to work, (a) and impossible really to say, but (b) I wouldn't expect that to be the case.
Q. In terms of probabilities, you think it's less likely? A. Yes."
129 Dr Yeo provided a report that only became available at the conclusion of the hearing. In his opinion, "the spinal degenerative changes, first identified in x-rays in 2003, would not have increased to the degree which would have necessitated [the plaintiff's] retirement from the work force before 65 provided she avoided repetitive heavy lifting (ie >10 kilograms)." He did not express an opinion about the plaintiff's future other than in terms of her working life.
130 Despite having prepared a series of reports on behalf of the defendant, it seems that in none of those reports did Dr Matheson express an opinion on this issue. Objection was taken to him giving evidence on the issue in those circumstances. In discussion with Senior Counsel for the defendant about it I posed the following question:
"HIS HONOUR: Isn't the issue this; there is no doubt that the extent of the aggravation of the plaintiff's pre-existing degenerative spinal condition and the extent to which she would or may have come to her current level of disability, even in the absence of an incident at work, is clearly an issue in the proceedings and always has been. You have identified it in your schedule of issues in dispute and it has been an issue alive in this courtroom in the last week or so. The objection is not that any evidence that Dr Matheson may give in addition to his reports raises a new issue, but the extent to which he ought, in the circumstances, to be permitted to express further opinions, even on an issue in the proceedings, when for some reason he has not directed his attention to that in any of the four reports he has already served."
131 I ultimately allowed the doctor to give oral evidence on the issue. Some of that evidence was as follows:
"Q. And having regard to the degenerative changes that have been described by you in your reports, from the various radiological investigations that have been conducted, are you able to give an opinion as to whether or not Mrs Hoad would have come to a disabling condition in relation to her back even if she had not worked at the abattoir? A. Most probably that would be correct.
Q. And are you able to form an opinion as to approximately when you consider that Mrs Hoad would have come to a disabling state in relation to her back even if she had not worked at the abattoir? A. Well, presumably we would have to take the time as being between the two operations that she had. In the sense that the first operation is not likely to leave her disabled, but she certainly needed to be disabled to have her second operation. So the best guess would have been somewhere between the two operations.
Q. And does that opinion which you have just expressed follow from the opinion you have already expressed in writing, that the operation on the lumbar spine was not connected in your opinion with the operation at the bottom of the thoracic section of the spine? A. That is correct."
132 Dr Matheson was also cross-examined on this topic to the following effect:
"Q. Doctor, even if back pain had come on from her pathology there is a difference between back pain coming on and somebody being disabled by it, is there not? Some people demonstrate a capacity to work with a certain tolerance of pain and others take a greater tolerance of pain? A. Correct.
Q. And certainly the proposition that she would more probably than not have developed back pain in the course of her working life, even without a particular incident precipitating is not something you would disagree with, is it? She was likely to develop back pain even if she hadn't done by the twenty-ninth of January 2004, it would have come on some stage in her working life? A. It would have come on in some stage in her life.
Q. The extent to which it might have become disabling delves in to the realm of speculation, does it not? A. Yes."
133 However, Dr Matheson had more to say on this topic later in his cross-examination:
"Q. If it be the fact that she indeed was symptom free prior to the twenty-ninth of January 2004, if she had not been involved in physical activity of the kind described at her place of work but perhaps had been involved in something more sedentary or something less physically demanding, she may have remained symptom free for years, may she not? A. I doubt it. I think she had sufficient pathology in the back which was about to run in to trouble with it, yes.
Q. There is certainly not probabilities associated with this, are there doctor? I am suggesting to you she could well have gone to 65 and been able to pursue sedentary work, don't you think? A. I am suggesting that is highly unlikely."
134 There is to my mind a certain tension between the notion that it was unlikely that the plaintiff could well have gone on to pursue sedentary work untroubled by any (lumbar) spinal pathology and the concession that the extent to which the plaintiff's condition may have become disabling was in the realm of speculation. In the end Dr Matheson's opinion is no more and no less than an opinion that although it is not possible to be certain, the plaintiff's spinal condition was such that a progression to symptomatic pathology was likely.
135 In my opinion, on the balance of probabilities, the plaintiff would have become disabled as the result of the natural progression of her pathological lumbar spinal condition. Despite the terms of the question that I have posed, it is not possible definitively to say when that might have occurred. It could have arisen on the day following the plaintiff's accident in an unrelated incident or as the result of slow but progressive deterioration over time. It may never have occurred at all. Legal conclusions and decisions about both the probability of past events given different circumstances or about future events in unknown circumstances are necessarily artificial. One approach is to discount the result that would otherwise flow by the chance, expressed as a percentage, that the plaintiff would have become disabled quite apart from her actionable injury. That approach is to be preferred in the present context where the plaintiff makes claims for economic loss that are directly affected by a conclusion on this issue, and where the choice of some specified cut-off date is really quite arbitrary.
136 Doing the best I can, I am unable to say that the plaintiff's lumbar spinal condition would have progressed even in the absence of her injury at the defendant's premises in such a way that by some specified age she would have been either unable to work or alternatively would have made a decision no longer to work. Whether for the purposes of calculating non-economic loss, and cognate heads of damage, or economic loss and related categories, I consider that increasing the discount for vicissitudes from 15 per cent to some higher figure is a preferable approach. In the present case I consider that an increase to a discount of 25 per cent is appropriate to take account of the chance that the plaintiff's condition without her work injury would at some stage have become the same as her condition because of it.
What contribution, if any, did the employer make to the plaintiff's loss and damage? (the apportionment issue)
137 The plaintiff was at all times employed by Meat Industry Services Pty Ltd. All of her fellow workers were similarly employed. This included Mr McLeod and the other men and women who were physically present at the defendant's premises from time to time in a supervisory role or otherwise armed with the responsibility and authority to tell the plaintiff and her co-workers what to do and how to do it. Mr McClusky was the only representative of the defendant not employed by Meat Industry Services Pty Ltd to give evidence for the defendant. He was a director of the defendant. Given the non-delegable duty of care owed by an employer to its employee, the fact that the plaintiff's employer has not been sued, and the fact that the defendant was injured at the defendant's premises, it therefore becomes important in the circumstances of this case to identify the respective contributions of the defendant (if any) and Meat Industry Services Pty Ltd to the creation or perpetuation of the unsafe system that led to the plaintiff's injury. As Senior Counsel for the defendant correctly observed, "part of [the] difficulty, of course, is that Parliament for its own policy reasons has set up a regime by which who you are actually employed by is a very important matter, and has very significant consequences for injured workers".
138 Historical company extracts tendered by the defendant show that as at 29 January 2004 both the defendant's registered office and that of the employer was 12 Derby Street, Walcha and that their principal place of business was 215 Beardy Street, Armidale. John Arthur McCluskey (sic) was one of the directors of the defendant. The companies had no common directors at that time.
139 The defendant tendered a series of documents that it had produced. One of those documents was entitled "Peel Valley Exporters Pty Ltd Occupational Health & Safety Policy", signed by Chris Power, General Manager, with an effective date of 1 July 2003. Part of that document included the following statements and material:
"Peel Valley Exporters Pty Ltd considers the occupational health and safety of all persons employed within the organisation and those visiting the organisation is of the utmost importance. Resources in line with the importance attached to occupational health and safety will be made available to comply with all relevant Acts and Regulations and to ensure that the workplace is safe and without risk to health.
The promotion and maintenance of occupational health and safety is primarily the responsibility of management. Management at all levels is required to contribute to the health and safety of all persons in the workplace. To this end, it is management's responsibility to develop, implement and keep under review, in consultation with its employees, the organisation's OHS Program.
Each supervisor is responsible and will be held accountable for taking all practical measures to ensure:
140 Another similar document tendered by the defendant was entitled "Peel Valley Exporters Pty Ltd OHS Consultation Statement". That document was also signed by Chris Power with an effective date of 4 June 2003. That document included the following material:
Peel Valley Exporters Pty Ltd is committed to protecting the health and safety of all our employees. Injury and illness is needless, costly and preventable. Our company will consult our employees in implementing safe work practices and systems that will ensure the health, safety and welfare of our employees. Employee involvement at all levels is critical to ensure a safe workplace.
An OHS Committee and OHS Representatives will be established to promote safety and health in the workplace".
The OHS Representatives that have been elected by employees are:
The workgroup for the OHS Committee is all employees who work in the following workgroups:-
The employee members of the OHS Committee are the 10 OHS Representatives. The management representatives are Chris Power, Michael Hope and Julie Carlon.
The OHS Committee will assist with the development and monitoring of safe work practices and systems, and discuss issues that affect the health, safety and welfare of all employees at Peel Valley Exporters Pty Ltd. The company will respond to OHS Committee recommendations with a timeframe agreed by the Committee, set according to the particular issued (sic) and its complexity."
141 A third document in this series is entitled "Peel Valley Exporters Pty Ltd Occupational Health and Safety Responsibilities". Part of that document included the following material:
" All Persons All persons at work to take reasonable care for the health and safety of person (sic) who are at his place of work and who may be affected by his acts or omissions while at work.
Management to ensure the health, safety and welfare at work of all employees, visitors and contractors.
Management will ensure that employees are provided with reasonable supervision necessary to ensure the health and safety of the employees and other persons at the workplace.
Each supervisor is responsible for taking all practical measures to ensure:
All contractors and sub-contractors engaged perform work on the organisation's premises or locations are required, as part of their contract, to comply with the occupational health and safety policies, procedures and programs of the organisation and to observe directions on health and safety from designated officers of the organisation.
Failure to comply or observe a direction will be considered a breach of the contract and sufficient grounds for termination of the contract".
142 Peter McLeod supervised the plaintiff's training and induction. He completed a Training Register on the letterhead of the defendant on 4 September 2004.
143 The website of the JSA Jackson & Son Group of Companies includes reference to the defendant and the employer. The entry for Meat Industry Services includes the following:
"Labor (sic) for all the companies in the JSA Jackson group is supplied by contract from Meat Industry Services Pty Ltd, a company that specialises in Human Resources Management and Training. Meat Industry Services is always looking to employ people under Australian Workplace Agreements, to staff the Peel Valley Exporters plant in Tamworth NSW. . ."
144 On 29 January 2004, Julie Carlon wrote a letter on the letterhead of the defendant in respect of a worker's compensation claim by the plaintiff. The letter is addressed generally to the "Treating Doctor" and is in the following relevant terms:
"As you may be aware, Peel Valley Exporters Pty Ltd Offers a rehabilitation return to work program for all injured employees as required by the Workers Compensation Legislation Amendment Act 2001.
I understand that you will be seeing [the plaintiff] on 29 January 2004. Could you please consider his (sic) fitness for suitable duties at the time of seeing him (sic), and complete the Work Cover Medical Certificate. To enable us to design an appropriate rehabilitation return to work program for him (sic). Part time duties/an (sic) or a graduated return to full hours are acceptable to us.
Our insurer GIO may also be in contact with you regarding an Injury Management Plan."
145 Jack Thompson, the general manager of the defendant, wrote to the plaintiff on 22 February 2005 on the defendant's letterhead. In that letter Mr Thompson set out a history of attempts to rehabilitate the plaintiff, and a list of dates upon which and periods during which the plaintiff had been unfit for work. That letter concludes with a series of paragraphs that include the following:
"As you can see from the above details Peel Valley Exporters Pty Ltd has been committed to your rehabilitation program, and it is with regret that we terminate your employment". (Emphasis added)
146 Mr McLeod was cross-examined about some of these documents. As earlier noted, he was the defendant's OH&S co-ordinator.
147 The defendant made detailed submissions on this issue. The starting point was said to be the incontrovertible proposition that an employer owes a non-delegable duty of care in relation to the provision of a safe system of work for employees. Accordingly, if an employee suffers injury as a result of an unsafe system of work, then the employer is liable to the employee as a tortfeasor, whether or not there was actual fault on the part of the employer. Further, at common law, the employer is liable for 100 per cent of the employee's damages, if the employee chooses to sue only the employer. Thus, it can never be a question of whether an employer or some other person is liable to an employee, but can only ever be a question of whether some other person is liable as another tortfeasor in addition to the employer.
148 The defendant emphasised that s 151Z says nothing about how apportionment between employer and non-employer tortfeasors is to be assessed: that remains an assessment of what is " just and equitable having regard to the extent of a tortfeasor's responsibility for the damage " pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. That "just and equitable" assessment requires, in every case, consideration of the particular facts and circumstances relevant to the respective breaches of duty by the alleged joint tortfeasors. Reference to factual situations in other cases is, by the very nature of the enquiry, of limited assistance. However, in every case in which the s 5(1)(c) assessment is being undertaken for the purposes of calculating the reduction in damages pursuant to s 151Z, the starting point must be that every employer owes a non-delegable duty of care to its employees by virtue only of the relationship of employer and employee. The defendant submitted that cases such as TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1, in which the employer was found liable pursuant to s 5(1)(c) to contribute 25 per cent, and J Blackwood & Son v Skilled Engineering [2008] NSWCA 142, in which the employer was found liable to contribute 30 per cent, turn on their own particular facts.
149 In particular, by way of comparison to this case, direct supervision of an instruction to the worker was given by employees of the non-employer in both TNT v Christie and Blackwood (see Blackwood at [66] - [76]). In the present case, each level of the hierarchy responsible for instruction, supervision and control involved another employee of the employer Meat Industry Services Pty Limited, not an employee of the defendant. Although the conveyor system and the work "tables" in the boning room were owned by the defendant and provided by the defendant for the purposes of the work being done by the plaintiff, nevertheless, unlike in TNT v Christie , there was nothing wrong with the equipment itself. Rather, it was on the plaintiff's case the manner in which the equipment was used, or on one view improperly used, that was the problem. However, it was other employees of the employer who either directed or permitted the plaintiff to engage in an unsafe system of work.
150 Accordingly, although it was the defendant's plant and equipment, and although the defendant could have taken reasonable steps to avoid its plant and equipment being used in an unsafe manner, and although the work done by the plaintiff was for the benefit of a business conducted by the defendant, nevertheless the plaintiff's employer was charging substantial amounts to the defendant not only for the plaintiff's labour but also for the provision of a foreman, occupational health and safety officers, plant managers and operations managers. In short, in the defendant's submission, the employer was more culpable because it was directly instructing and supervising the plaintiff.
151 The defendant submitted that if the defendant and the plaintiff's employer were not related corporations within the meaning of the Corporations Act , the employer's percentage contribution pursuant to s 5(1)(c) would be in the order of 75 per cent or 80 per cent. However, in circumstances in which the two companies are related and the defendant was involved in its own occupational health and safety procedures at the abattoir (albeit implemented by employees of Meat Industry Services Pty Limited), the defendant conceded that responsibility should be apportioned equally between the employer and the actual occupier of the premises upon which the unsafe system of work was in operation. In that regard, the defendant submitted that it was an important factor in the s 5(1)(c) assessment that the plaintiff's primary claim, particularly in terms of the evidence adduced in support of it, is that her injuries resulted from an unsafe system of work, not by reason of a casual act of negligence on the part of the defendant for which the plaintiff's employer would not be liable in the absence of its non-delegable duty of care.
152 Her Honour McColl JA considered the principles to be derived from the cases in this area of the law in a detailed review of the authorities in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at pars [33] to [51] inclusive. At least the following factors emerge as matters offering some guidance as to how to compare the respective liabilities of an employer and an occupier of premises at which the employee is required to work:
What were the respective degrees of access to the premises as between the employer and the occupier and what was the employer's opportunity to inspect them?
What were the employer and occupier's respective states of knowledge of the hazard?
Was the employee located on the occupier's premises for a short time or indefinitely or was she moved around?
Did the employer have an ability independently of the occupier to avert the hazard by itself or only with the consent or approval of, or in consultation with, the occupier, sometimes called the employers capacity to 'shield' the employee?
How long had the relevant hazard been in existence?
Had any prior injury been caused by the hazard to anyone else apart from the employee?
Did the relevant hazardous conditions at the occupier's premises vary from day to day or were they constant?
Was the employee injured in the course of her normal duties or were those duties relevantly different to what was usual for that employee?
Was there any dissimilarity in the employee's ability to draw the hazard to the attention of the occupier as compared to the employer?
Who was responsible for the employee's training?
Was the non-delegable duty of care owed by the employer one that could be discharged in the circumstances by doing nothing at all, such as (arguably) a casual and unforeseeable act of negligence on the part of the occupier?
What were the respective roles played by the employer and the occupier in devising, instituting and maintaining the system of work that was found to be unsafe?
153 What makes this case somewhat different from the usual run of cases is that in most of those cases the so-called labour hire companies, that are legally the employer of the injured employee, are wholly independent and at arm's length from the occupier. The management of one is distinct from the management of the other. The employees of one are distinct from the employees of the other. That is not the situation in this case. In Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174, a supervisor of an injured worker on a building site was also employed by the same labour hire company that employed the worker. The Court of Appeal found that while the supervisor may have had dual roles, it was not possible to describe his position on site as an exercise of his responsibility solely on behalf of the employer. The Court held at par [56] that the relevant contractor on site "had control of the workplace" and was liable for an unsafe system of work.
154 When the plaintiff went to work at the defendant's premises she was surrounded by employees of the labour supplier. One of its employees trained her. One of its employees was at all relevant times the foreman on site. Employees of the labour supplier were present to receive complaints if she had any and to provide instruction and advice if required. When she was injured an employee of the labour supplier present at the premises rubbed cream into her back and filled out her injury report for her. The same employee wrote to the doctor that she saw on that day. As far as the evidence goes, the plaintiff would have had considerable difficulty on any day during her employment actually locating any person who was solely identifiable as a representative of the defendant alone. It is for this reason that the application of the factors enumerated above is to some extent artificial and not productive of a meaningful or informative conclusion.
155 What results from these circumstances seems to me to be as follows. To the extent that the defendant's activities at the premises are carried out through employees of the employer, they are the activities principally of the defendant and only secondarily the activities of the employer. Although by dint of the non-delegable nature of the duty owed by the employer it remained responsible for the unsafe system that caused the plaintiff's injuries, the actual and ultimate control of that system and the premises lay reposed in the defendant. It was a matter only of corporate or mercantile choice and convenience that those tasks were carried out by individuals whose group certificates were furnished by another and different entity.
156 Moreover, the premises and their contents were purpose built for the defendant and for its conduct of an abattoir. The conveyor belt system that was at the heart of the operation, and all of the activity and enterprise in the boning room, was the result of the particular energies of the defendant. The steel tables with angled rollers used by the packers were specifically designed and constructed to be used, and were intimately connected, with plainly very expensive and extensive mechanical plant, equipment, fittings and fixtures. It was part of the defendant's case that this was so. The employer's ability to influence how the system worked was wholly predicated upon the physical layout and set up of the premises. The employer had only a very limited role to play in its ability to implement or to demand changes to the system that the defendant had put in place.
157 In this sense the employer supplied workers to the defendant on what was or amounted to a quite limited and confined basis. In the corporate partnership (loosely so described) between the defendant and the employer, a reasonably clear division of responsibilities emerges in what might be called a "premises based" role on the one hand and an "instruction based" role on the other hand. Even if it were not so, or not completely so, the defendant was in at least as good a position as the employer, and in my opinion a better position, to require the packers to adhere to the system it designed if it had chosen to do so. The fact that it did not do so appears to be a function of the practical reality that the plaintiff's departure from the system as designed did not apparently retard the defendant's production. Mr McLeod was in the boning room from time to time but the defendant effectively occupied and controlled it at all times.
158 There is to my mind in this case a certain sense of artificiality in the imposition of a high degree of responsibility for the outcome upon the employer when the relevant enterprise was conducted at and from a discreet set of premises designed, used, managed, controlled and occupied by the defendant for its unique and independent commercial objectives. The defendant had an OH&S programme that was directed at the maintenance of safety in the boning room and elsewhere at its abattoir. It clearly recognised that it had a responsibility for the safety of those who worked in the boning room and it designed a protocol to give practical effect to that responsibility. When it decided to dismiss the plaintiff, it did so itself.
159 The relationship between the defendant and the employer had all the hallmarks of a convenient arrangement. The defendant submitted that as this was a case where either party could have taken steps to enforce adherence to the system, the employer was more responsible because it had supervisors on site that did nothing about it. For the reasons that I have set out above, I reject that submission. In my view the defendant was primarily liable and a just and equitable apportionment of responsibility for the plaintiff's loss is 75 per cent to the defendant and 25 per cent to the employer.
Section 151Z(2)(c) of the Workers Compensation Act 1987
160 With respect to the operation of s 151Z(2)(c) the first issue in every case is whether the plaintiff has a permanent impairment of at least 15 per cent within the meaning of s 151H: see Clout Industrial Pty Limited (In Liquidation) v Baiada Poultry Pty Limited [2004] NSWCA 89; (2004) 61 NSWLR 111. If a plaintiff does not, then no damages can be awarded against the plaintiff's employer and a non-employer defendant can reduce the damages that it pays to the plaintiff by the whole of whatever percentage contribution the employer's culpability would produce pursuant to s 5(1)(c).
161 The defendant conceded that it could not in the particular circumstances of this case successfully contend that the plaintiff did not make the 15 per cent whole body impairment threshold for the purposes of s 151H of the Workers Compensation Act 1987 . Senior Counsel for the defendant said, "[t]here is no issue that for the purposes of [that section] this plaintiff would exceed the necessary threshold under the worker's compensation legislation if she wished to sue the actual employer". Accordingly, the reduction of the difference between that which the defendant could have obtained by way of contribution from Meat Industry Services Pty Ltd if it had been sued, and what can be recovered now, is limited to the difference between Civil Liability Act damages and the plaintiff's past and future economic loss notionally recoverable by her under the workers compensation legislation.
162 By reason of the defendant's concession and the finding that follows from it in the circumstances, it becomes necessary to determine, in addition to my finding about the respective apportionment as between the employer and the non-employer pursuant to s 5(1)(c), in a case involving an unsafe system of work:
See generally Grljak v Trivan Pty Limited (In Liquidation) (1994) 35 NSWLR 82 at 88; Clout (supra). Once those figures have been determined, then the calculation is effectively ('non-employer damages' x 'employer percentage contribution' or 25 per cent) minus ('employer damages' x 'employer percentage contribution' or 25 per cent).
163 There is little doubt that the plaintiff is severely and genuinely disabled. The plaintiff was not cross-examined on the issue of her capacity: see, for example, transcript at 448. There was also the following brief discussion recorded at page 64 of the transcript of the first day:
"HIS HONOUR: There is a medical issue about the extent to which the plaintiff's injuries would in any event have emerged as the result of the natural progress of a pre-existing degenerative condition.
HIS HONOUR: That is what I was going to ask you. I assume from some questions that Mr Sutherland had asked earlier of the plaintiff that the state and status of her present condition is either not in dispute or significantly in dispute?
SEXTON: There is some dispute about the detail of capacity to do certain things and the time required for things to be done for her.
HIS HONOUR: In terms of diagnosis of the condition and the prognosis presumably there is little dispute and the issue is the extent to which the condition would have, in any event, emerged even notwithstanding the events that the plaintiff has described.
164 This is not surprising. Dr Matheson on behalf of the defendant was of the opinion that the plaintiff had "quite a lot of back disorder". Although he expressed reservations about attributability he was nevertheless prepared to concede that one could assume that the plaintiff had a prolapse of the T11/T12 disc "which could have been work related". He described that lesion as "the more dangerous lesion" and agreed with Dr Dandie's approach of dealing with it first as it could lead to "disastrous neurological complications if it got worse". He described the prognosis as "not good here" and her capacity for work as "clearly limited". He said, "I feel her days of doing the physical work that she was doing are over".
165 The plaintiff has had what on any view could only be described as a hard life. The tragedy for the plaintiff is that when she appeared to have overcome the serious difficulties of mental health and alcohol abuse that had dominated the years leading up to her employment with the defendant, she was struck down by an incident in the course of her employment that she clearly loved. She was good at her work and there is no doubt that her months working at the abattoir at the end of 2003 were a turning point in her life. I am in no doubt that her lumbar spinal pathology had never surfaced at any time before she was injured on 29 January 2004 and that her reference to gardening all day in the form she completed when first employed is as eloquent a statement of that fact as one could hope to find. Despite Dr Matheson's doubts about attributability, a common sense approach to causation, as well as the opinions of her operating surgeon and Dr Yeo, leaves me in no doubt that all her problems stem from her initial injury at work.
166 Shortly after the first anniversary of her injury the plaintiff was in Sydney attending Westmead Hospital for an intensive three-week course of therapy. It was during this time that her employment was terminated. This course did not produce any beneficial long-term effects. The plaintiff has undergone two operations on her spine, one at least via an anterior surgical approach with associated cosmetic sequelae. She has been left with minimal capacity for the tasks of daily living. She described this in evidence:
"Q. What sort of things could you do and what sort of things did you find you couldn't do or could only do with pain, give us a bird eye view? A. I can't do the floors, I can't do the vacuuming, I can't push it or pull it to vacuum the floor. The only thing that I can successfully do at the moment is the light washing up which I go and I run the water in to the sink first and then I go and sit down. I have a sort of a little high chair in the kitchen, I will sit and then I get up and do little bits and I will sit or go back to my chair in the lounge room but I eventually get it done, that's about the only thing.
Q. What sorts of things have the children helped you to do or done for you? A. They virtually help me like everything else, the washing the dusting at home, changing of my bed, making my bed. If they kids don't come out I don't make the bed. There is one little piece of lawn that I have always, if I can get somebody to start the lawnmower I say to them, "Can I have a go for 5 or 10 minutes so I can walk with the mower", and I will do that. I haven't done it for a while. I even have to get them to wash my hair for me.
Q. What about shopping, things like that. Can you do your own shopping? A. I like to go, but I hold the back of the trolley, and Nicole drags it around. I can throw light stuff in, but I can't bend to get the stuff out of the trolley.
Q. You told his Honour earlier that you have trouble doing your hair, is that right? A. That's why I have got it plaited, because it hurts to put me arms up. It's just easier to plait it here, yes".
167 It is also difficult to overlook the opinion expressed by Dr Hopcroft in his report of 2 March 2006. At that time he said, "she remains totally disabled from contemplating a return to the workforce and struggles to undertake any activities of daily living, including her housework, in view of the marked restriction in movement of her spine and the significant ongoing spinal pain and bilateral sciatica from which she suffers". He said that the plaintiff had been "totally compromised in undertaking any leisure, hobby or sporting activities".
168 The plaintiff takes Panamax, Tramal and Aropax. These are strong medications for the relief of her symptoms taken in accordance with medical advice. She now drinks socially and without problems. She saw Dr Harvey at the request of the defendant and an occupational therapist arranged by the defendant visited her home to do an assessment. Neither practitioner has prepared a report that became evidence before me.
169 The defendant urged upon me a reduction in any damages for the future to which the plaintiff may be entitled by a discount for vicissitudes in the order of 30 per cent. This was said to be warranted by the prospect that the plaintiff's pre-injury lumbar spinal condition was such that her regression into a state of partial invalidity not dissimilar to her present condition was likely as the result of the natural progression of that disease. I propose to apply the rate of 25 per cent as a discount figure as already discussed.
170 The plaintiff contended that she was entitled to damages under this head, having regard to the provisions of s 16 of the Civil Liability Act 2002 , at the rate of between 65 per cent and 75 per cent of a most extreme case. The maximum amount that can be awarded is $442,000. The defendant appeared to suggest that a figure in the order of 30 per cent of a most extreme case was adequate. I disagree with both of these estimates. Having regard to the plaintiff's loss of enjoyment of life, her pain and suffering and her considerable loss of amenity, but having regard to the notion of a most extreme case, I consider that the plaintiff is entitled to damages under this head at the rate of 55 per cent of a most extreme case. That calculation translates to a figure of $243,100.
171 The plaintiff claimed past loss of wages as follows:
At the rate of $484 net per week from 29 January 2004 to 30 June 2004 or $10,648.
At the rate of $496.46 net per week from 1 July 2004 to 30 June 2005 or $25,815.
At the rate of $515.00 net per week from 1 July 2005 to 30 June 2006 or $26,780.
At the rate of $538.45 net per week from 1 July 2006 to 30 June 2007 or $27,999.
At the rate of $566.55 net per week from 1 July 2007 to 30 June 2008 or $29,460.70.
At the rate of $566.55 net per week from 1 July 2008 to 19 September 2008 or $6,798.60.
172 There was no dispute about the arithmetic involved in these calculations or about the accuracy of the figures representing net wages that were payable to a comparable employee in the relevant periods. In my opinion the plaintiff has been wholly incapacitated for any work otherwise within her pre-injury abilities since 29 January 2004 and is entitled to the sums claimed under this head totalling $127,501.30.
173 The parties agreed that the sum of $10,000 was appropriate under this head.
174 The plaintiff was born on 15 October 1952. She is currently one month short of her 56th birthday. She has another nine years of working life until an anticipated retirement at the age of 65. The relevant multiplier on the 5 per cent tables is 380.1. The plaintiff's net wage was $566.55 as at 30 June 2008. I have not been provided with details of any relevant increase since then. A calculation using those figures less 25 per cent for vicissitudes produces $566.55 x 380.1 less 25 per cent or $161,224.
175 The plaintiff's future economic claim figures are arithmetically agreed. As with other similar submissions, the defendant contends for a discount for vicissitudes of 30 per cent. In my opinion the plaintiff is entitled to the sum of $161,224 as calculated by me using the discount of 25 per cent for vicissitudes.
176 A calculation at the rate of nine per cent on the gross equivalents of the net past wage loss figures for the same period from 29 January 2004 to 19 September 2008 produces the sum of $14,021.60. This figure is agreed by the defendant to be arithmetically correct. I consider that the plaintiff's entitlement to this sum follows from my decision on past economic loss and I award the plaintiff the sum of $14,021.60 under this head of damage.
177 A calculation at the rate of nine per cent of the plaintiff's gross wage entitlement as at 19 September 2008 at a discount rate of five per cent produces $60.84 x 380.1 or $23,125. The defendant urged upon me an overall reduction of 30 per cent for vicissitudes but I have approached that discount at a slightly lower rate as already discussed. The plaintiff is entitled therefore to the sum of $23,125 less 25 per cent or $17,345 under this head of damage.
178 Past attendant care services are agreed at a lump sum of $46,700: see transcript page 533.
179 The plaintiff particularised her claim as one for $113,625 calculated upon the basis of four hours per week at $33 per hour for the rest of her expected life which was actuarially estimated at 33 years. The defendant agreed that the plaintiff required four hours' paid care in her present condition. The applicable multiplier at a five per cent discount rate is $855.7. The defendant did not therefore contest either the accuracy of these integers or the plaintiff's contingent entitlement to damages under this head, save in one respect. The defendant contended that the sum awarded for damages under this head should be discounted at a rate of 30 per cent to take account of vicissitudes. I remain of the view that a rate of 25 per cent should apply as the appropriate discount for vicissitudes and that produces an amount of $85,218.75 for damages, which I award under this head.
180 The plaintiff claimed eight consultations with her general practitioner each year at $50 per consultation. The multiplier of 855.7 x $7.70 per week less 25 per cent produces $4942. This claim is more than reasonable and I allow it in full.
181 The plaintiff also claimed ten physiotherapy consultations each year at $50 per consultation. The multiplier of 855.7 x $9.61 per week less 25 per cent produces $6167. This claim is also reasonable in the circumstances of this case and I allow it in full.
182 The plaintiff claimed three neurosurgical consultations each year at the rate of $110 per consultation. The multiplier of 855.7 x $6.35 per week less 25 per cent produces $4075. I consider this claim to be conservative and I allow it in full.
183 The plaintiff claimed a cushion of $150 per year for medication. The multiplier of 855.7 x $2.88 per week less 25 per cent produces $1848. I also consider this claim to be conservative and I allow it in full.
184 The plaintiff claimed a cushion of $150 per year for radiological studies. The multiplier of 855.7 x $2.88 per week less 25 per cent produces $1848. There appears to be a need to monitor the plaintiff's progressive disease and the stability or otherwise of her fused spine. This claim seems to me to be warranted and justifiable and I allow it in full.
185 The plaintiff claimed a cushion for the cost of future surgery. Dr Dandie said of this prospect, "I wouldn't say more likely than not. It's certainly possible that the percentage chance is 30 per cent in ten years. That operation would probably cost about $50,000". (See also transcript page 533). There is therefore a 70 per cent chance that the plaintiff will not require further surgery and there is the complication that she may have needed it even without the intervention of the defendant's negligence. Thirty per cent of $50,000 is $15,000. That sum deferred for ten years at a five per cent multiplier of 0.614 less 25 per cent for vicissitudes produces a sum of $6907.50, which I would allow.
186 Dr Yeo recommended the regular use of a hot spa at a cost to install of approximately $6,500. No evidence, medical or otherwise, supports the proposition that such a device is therapeutically warranted and I consider it to be unnecessary. I have taken Dr Yeo's views into account in forming that opinion. I reject this part of the plaintiff's claim.
188 This produces a sum for damages against the (non-employer) defendant, before any s 151Z calculations, of $830,708.50.
" 151G Only damages for past and future loss of earnings may be awarded
(a) damages for past economic loss due to loss of earnings, and
(b) damages for future economic loss due to the deprivation or impairment of earning capacity."
190 If the employer had been sued by the plaintiff she would have been entitled to recover $127,501.30 as damages for past economic loss due to loss of earnings (par [172]), a Fox v Wood amount of $10,000 (par [173]), $161,224 as damages for future economic loss due to the deprivation or impairment of earning capacity (par [175]), past superannuation of $14,021.60 (par [176]), plus future superannuation of $17,345 (par [177]). Together these sums produce a total damages amount for the purposes of the s 151Z calculations of $330,091.90.
191 Applying the formula referred to in par [162] above, the plaintiff's damages are as follows: ($830,708.50 x 25 per cent) minus ($330,091.90 x 25 per cent) or $207,677.12 minus $82,522.95, which is $125,154.17. Accordingly, the plaintiff's damages are $830,708.50 minus $125,154.17, or $705,554.33 .
Was the plaintiff guilty of contributory negligence?
192 In Pollard (supra) at [13] to [16], her Honour McColl JA had this to say in general terms about the question of contributory negligence:
"[13] At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act which provides:
'(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.'
[14] The words "reasonable person in the position of that person" in s 5R are equivalent to the words "a reasonable person in the plaintiff's position": Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects "the expectation that, in general, people will take as much care for themselves as they expect others to take for them": Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing).
[15] The appellant was not the respondents' employee. Different considerations arise in the case of contributory negligence on the part of such persons: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 (at [40]). In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker's conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (at 310).
[16] The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 (at [30]) per Gleeson CJ, McHugh, Gummow and Hayne JJ."
193 The defendant pleaded that the plaintiff failed to take any proper care for her own safety. Although purporting to be a particular of contributory negligence, it is in reality no more than a general formulation of the defendant's opinion of how the plaintiff was injured. It was not given any content during the course of the hearing, either from cross-examination of the plaintiff or submissions, and it never achieved an obvious significance in the defendant's case. This is unsurprising.
194 The plaintiff was injured in the course of performing work that, according to my finding, the defendant tolerated or permitted. The defendant did not instruct the plaintiff not to perform her work in the way that she was performing it at the time she was injured, and the plaintiff would appear to have continued in this fashion for what amounted to the entire time that she worked at the defendant's abattoir. In these circumstances, the plaintiff was injured as the result of defects in the system of work that the defendant allowed, and not as the result of a careless departure from a system that the defendant took any appropriate or obvious steps to enforce. Both Mr Donnelly and Mr McLeod denied that they had ever seen female packers lifting boxes and Mr McLeod said that it was not his practice to give instructions to new women employees who were to be packers about how to lift 25kg or 30kg boxes for the simple reason that they were not required to lift that sort of weight.
195 In such circumstances the plaintiff could not in my view have contributed to her own loss and damage in a way that avails the defendant unless the defendant establishes either that the plaintiff had been trained how to lift boxes but ignored that training, or that she had been instructed never to lift boxes under any circumstances but ignored that instruction. The defendant has not proved either of these matters. It follows that the plaintiff was not responsible for her loss or damage by reason of her own fault or contributory negligence.
196 It remains briefly to consider some matters that arose in the course of the proceedings that appeared to assume significance out of proportion to their relevance. In deference to the attention that they received I shall deal with some of them.
197 Some considerable time and energy was directed to the question of whether or not the packers were able to enjoy the benefit of a morning smoko, or all of their allotted lunch breaks, when there was a lag between the time when the various cuts of meat for packing left the butchers or boners at one end of the conveyor and when they reached the packers at the other end. This meant that the packers would have to keep working into their breaks until the line was cleared of meat still coming their way.
198 The case that was originally pleaded made this topic relevant but the particulars of negligence ultimately relied on did not. I have not considered the evidence on this issue, as it seems to me to be wholly beside any matter in dispute between the parties.
199 There was also some evidence about the height of the benches and whether or not any or any sufficient allowance had been made or ought to have been made for short women working as packers who were required to assume unhealthy postures in reaching for meat. This produced no material of any ultimate relevance beyond establishing that the expression "short women working as packers" was a tautology as far as the defendant's abattoir was concerned.
200 The non-issue of the meat collecting at the white board so that it would not fall off the conveyor belt also attracted unwarranted attention. If it was ever relevant it was not relevant in a way that was apparent to me.
201 There was also a degree of evidence about what occurred when members of AQIS visited the premises. Although the packers referred to them as vets they were clearly something else. The issue that appeared to arise was whether or not the packers were required to work at a different rate or in a different way when any outside inspectors were on site. In the events that occurred this also became a non-issue. The various questions directed to European Community standards for Australian meat exports to the continent achieved a similar state of importance in the end result.
202 There was also considerable evidence on the capacity of the abattoir, the number of beasts that could be slaughtered and processed in a day and the average rate of production in the original boning room as compared to the present position. There was even an attempt to tender evidence of applications to local authorities for the expansion of the site. I can accept that when the plaintiff's case appeared to include claims that highlighted the importance of the speed at which she had to work, this material was of potential interest. It was not relevant by the time the case concluded. I have found that the plaintiff was required to bend and to lift heavy (27kg) boxes repetitively . The plaintiff was not required to establish that the rate that she did so was itself measured by reference to some nominated applicable standard.
203 Further and finally, each party originally sought to rely upon an expert on questions of ergonomics. The plaintiff qualified Mr Mark Dohrmann. The defendant qualified Mr Johnn Olssen. Neither witness was able to give admissible factual evidence going to the critical issue of what the plaintiff was doing at the time that she was injured. Once the defendant quite properly conceded that the system described by the plaintiff was an unsafe system and thereby acknowledged that it would be liable if it were found to have permitted such a system at its premises, the need for any comment on the ergonomic aspects of any work performed by the plaintiff in particular or packers in general fell away. However, that concession may well have been the inevitable consequence of at least one of Mr Olssen's opinions. I should note that my distinct impression from the comments made by Mr Olssen at pages 17 to 18 of his report dated 25 July 2007 was that if the plaintiff had been required to lift boxes weighing in the order of 23kg on a regular basis throughout her working day, that would have been unsafe and dangerous. As he says:
"To pick up a carton on a very occasional basis in the order of once a day only the safe limit for a short vertical transfer in between knee level to knuckle height, the safe limit would be around 22-23kg. Carrying by a female person with the carton held at approximately 720mm above the floor performed on a one-off basis is safe to around 23kg for an 8.5m carry. That becomes progressively reduced with frequency of carrying".
204 This evidence of Mr Olssen suggests very strongly that the plaintiff would not have been required in his opinion to lift and carry many 27kg boxes in the way she described before her task could be described as repetitive.
205 There may be some matters that I have overlooked to which one or other of the parties might wish to direct my attention. This includes the possibility of some arithmetical or mathematical error that is capable of correction without controversy. It may be preferable to permit the parties and their legal advisers some short period within which to form a view about such things. If it were necessary I would then have the matter listed before me at some convenient date for mention by arrangement with my Associate. Subject only to these matters I would propose to make the following orders:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Hoad
Peel Valley Exporters Pty Ltd
[2005] HCA 19
[1986] HCA 20
(2004) 61 NSWLR 111
(1994) 35 NSWLR 82
(2003) 65 NSWLR 1
(2003) 214 CLR 552
(2005) 221 CLR 234
(1986) 160 CLR 301
(1999) 197 CLR 1