Karanfilov v Inghams Enterprises Pty Limited [2002] QSC 141

Judgment (274 paragraphs)

[1]

EMPLOYMENT LAW - BREACH OF STATUTORY DUTY - NEGLIGENCE - DAMAGES - LIABILITY OF EMPLOYER - Action for damages - Plaintiff employee injured at defendant employer's chicken processing plant - where work involved frequent repetitious tasks - where insufficient adjustments for plaintiff's left-handedness - where work performed in crowded conditions - where work required repeated abduction of arm above shoulder height - where training and supervision insufficient - whether defendant liable for injury suffered.

[2]

NEGLIGENCE - WORKERS' COMPENSATION - BREACH OF DUTY BREACH OF STATUTORY DUTY - SAFE SYSTEM OF WORK - CONTRIBUTORY NEGLIGENCE - DUTY OF CARE - EMPLOYMENT LAW - REASONABLE FORSEEABILITY OF INJURY - where plaintiff's shoulder injured as a result of work - whether injury reasonably foreseeable - whether event giving rise to injury reasonably foreseeable.

[3]

CONTRACT - BREACH-DAMAGES - EMPLOYMENT - whether s 312 and s 314 WorkCover Queensland Act abrogate the rule that contributory negligence does not reduce damages for breach of contract

[4]

DAMAGES - PERSONAL INJURY ASSESSMENT OF DAMAGES - FOX V WOOD - GRIFFITHS V KERKEMEYER - INTEREST - MEASURE OF DAMAGES - PAIN AND SUFFERING - QUANTUM - LOSS OF EARNING CAPACITY - STATUTES - where plaintiff has limited use of dominant arm - where plaintiff's husband has taken responsibility for household tasks - whether s 312 and s 314 WorkCover Queensland Act abrogate the rule that contributory negligence does not reduce damages for breach of contract - whether s 315 WorkCover Queensland Act excludes damages for cost of professional services.

[5]

Law Reform Act 1995, s 5, s 10(1), s 21

[6]

Law Reform (Contributory Negligence) Amendment Act 2001, s 21(1), s 21(2)

[7]

WorkCover Queensland Act 1996, s 312, s 314, s 315, s 318, s 588

[8]

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, applied.

[9]

Blundell v Musgrave [1956] HCA 66; (1956) 96 CLR 73, distinguished.

[10]

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, applied.

[11]

Hawthorne v Thiess Contractors Pty Ltd [2002] QCA 223, considered.

[12]

Jones v Persal & Company (a firm) [2000] QCA 386, considered.

[13]

Keeys v State of Queensland [1998] 2 Qd R 36, applied.

[14]

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, applied.

[15]

March v Stramore (Ex M H Pty Ltd) [1991] HCA 12; (1991) 171 CLR 506, applied.

[16]

Martin v Mackay City Council [2001] QSC 433, considered.

[17]

Nelson v BHP Coal Pty Ltd [2000] QCA 505, considered.

[18]

Plumb v State of Queensland [200] QCA 258, applied.

[19]

Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18, followed.

[20]

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, applied.

[21]

Wylie v ANI Corporation Limited [2002] 1 Qd R 320, considered.

[22]

Sciacca's Lawyers and Consultants for the plaintiff

[23]

[1] Zaklina Karanfilov is a 33 year old woman who was injured in late 1997 while working as a boner at the defendant's chicken abattoir. She has sued the defendant for damages for breach of contract, negligence and breach of statutory duty. In order to determine whether the defendant is liable in damages for her injury and, if so, the quantum of those damages, it is necessary to consider the circumstances of, and leading up to, her injury as revealed by the evidence led at the trial.

[24]

[2] Mrs Karanfilov was born on 14 January 1969 and migrated to Australia from the former Yugoslav Republic of Macedonia on 30 May 1992 with her husband, Ljupco Karanfilov. At that time she and her husband had a son, Alberto, who had been born on 10 May 1989. She had worked in a factory in Macedonia on two occasions for a period of three or four months each, firstly before her marriage, at the age of 19 in 1989, a year after she completed secondary school, and on the second occasion in 1991. Mr and Mrs Karanfilov moved to Australia to build a better life for themselves and their children and had plans for both of them to work and to purchase a house. After her arrival in Australia, Mrs Karanfilov gave birth to a daughter, Jasmina, on 14 March 1993.

[25]

[3] When they arrived in Australia, she and her husband spoke a little English. Both attended classes to improve their language skills; Mrs Karanfilov for three months and Mr Karanfilov for two years. They lived in Melbourne until 1997 when they moved to Queensland. Mrs Karanfilov was successful in obtaining the first job for which she applied, that is a job with the defendant, Inghams Enterprises Pty Limited ("Inghams"), at its chicken abattoir at Murarrie. She had not applied for a job in Melbourne because, soon after Jasmina's birth, her husband had an accident and she was obliged to look after him as well as the newborn baby.

[26]

[4] Mrs Karanfilov gave evidence, which I accept, that had she not been injured, she intended to remain in her position at Inghams until her retirement at the age of 65. The only expected break would have been to have another child. She planned to have a third child after she discovered that Inghams provided twelve months' maternity leave to employees who had worked with them for a year. She anticipated taking no more than the twelve months' maternity leave to which she would have become entitled. About three months after she started work, Mr and Mrs Karanfilov bought a house and were paying off the mortgage. As well as paying off the mortgage, they wished to save money for their children's education and to have a more affluent life than their parents. They had made financial commitments and lifestyle choices which relied on both Mr and Mrs Karanfilov having an income from paid employment.

[27]

[5] Mrs Karanfilov commenced work on 12 March 1997. Prior to commencing work, on 5 March 1997, she had signed a printed declaration, but its contents are unlikely to be useful to the determination of this case. It is in a very small font, in English, and there was no suggestion that she had ever read it.

[28]

[6] Mr Karanfilov was by that time working in the security industry. Because of the different times of their shifts, Mr and Mrs Karanfilov were able to share child care and otherwise Mrs Karafilov relied on professional child care for Alberto and Jasmina. After she commenced full-time work, Mrs Karanfilov still carried out all of the housework apart from yard work and washing the car, without assistance from her husband or paid help.

[29]

[7] Upon commencing at Inghams, Mrs Karanfilov was given a period of induction and training. She was assessed by a nursing sister for strength and flexibility and allocated to work in the boning room in the defendant's abattoir. The induction took place on her first day when she and other new employees were given lectures about many aspects of their employment including safety procedures. They were taken on a tour of the factory, their paper work was attended to and they received lectures from the training officer, Karen Spethman, and an occupational health and safety nurse. The nurse told them to avoid engaging in cutting or pulling activities which put the arm at a level higher than the shoulder. She also told them about stretching exercises. Mrs Karanfilov was told that she should report any pain or twinges or discomfort to her leading hand or supervisor.

[30]

[8] Mrs Karanfilov ticked and signed an induction training record which shows the 62 different topics on which she received verbal instruction from Ms Spethman on her first day of work. The training officer, Ms Spethman, had been in Inghams' employ since 1984 when she was first employed as a process worker. The topics ranged from conditions of employment to industrial relations, and covered safety issues including a topic entitled "Specific Job Technique, Equipment and Machinery Instructions, issue/explain Safe Working Procedures." Ms Spethman said that under this topic she told new employees that if they were using a piece of machinery they must follow the correct procedure, use the stop buttons and so on. She told them that they should not use any equipment or do any job unless they were trained to do so.

[31]

[9] Instruction on that day was necessarily general because it was not aimed only at employees who would be working in the boning room and covered a very large number and variety of topics. Its value was therefore limited. There was no ongoing relationship between the training officer and employees after the first day's induction. At that time, there were no refresher courses. Now there is a system of refresher courses because, as Enid Stringfellow, a leading hand called by the defendant, conceded, otherwise people tend to forget what they've been told. The large number of topics covered means that it was likely that theoretical instruction would be forgotten unless it was followed up and reinforced. Further, if instruction given on the first day was contradicted by what workers observed or were told on the factory floor, then, at the very least, the likelihood of what workers were told on induction day being followed, even if it were recalled, would be markedly reduced. The problem of workers not complying with instructions and not taking seriously warnings over failure to follow safety directions was known to Inghams by at least February 1996 when they received a Report[1] alerting them to that problem, amongst many other problems.

[32]

[10] At some time before 1997, a booklet entitled "Safety Procedures - Boning Room" (the "safety booklet") had been prepared by Lesley Stephenson, an occupational therapist, for Inghams to give to workers on the boning line. The safety booklet provides an example of the potential for contradiction between instruction and practice. It shows the boner's arm being kept by the side and bent at the elbow for example when sharpening knives in what was referred to as the mouse trap sharpener. Yet it was not contested that, as shown in a video tendered in evidence of work on the boning line,[2] workers had to stretch out their arm at shoulder height to sharpen the knives on that sharpener. The safety booklet says that if care is taken of the knife, it may not need to be sharpened more than once a day. Again, it was common ground, and the video shows, that the knives had to be sharpened every 3 or 4 cuts. Apart from those matters, the safety booklet contains a number of useful instructions and exercises to be undertaken to relieve any problems caused by activities in the words of the safety booklet, "done for too long, using too much force, or too often". The defendant clearly knew of problems caused by such activities. The safety booklet was, however, not given to Mrs Karanfilov or Mrs Daraz, a fellow employee called by the plaintiff, or to Mrs Singh, a leading hand who was called by the defendant and who had been a boner at the relevant time.

[33]

[11] Mrs Karanfilov was paid as a trainee for six weeks but had only two weeks' training on a stationary rather than a moving conveyer belt. The stationary belt was known as a "standing belt". On the standing belt, she learnt and practised the various cuts of the chicken carcass which were required at that time. She was trained in the use of equipment such as knives, gloves and guards.

[34]

[12] After a fortnight, she moved on to the regular boning line which had a moving conveyor belt. For the first couple of days, she worked alongside a "buddy", a more experienced co-worker who was also left-handed, Sashie Kala Singh. Although neither could specifically remember, I am satisfied that it is more likely than not that Mrs Singh was Mrs Karanfilov's "buddy". As Mrs Singh did not specifically recall Mrs Karanfilov, she gave evidence of her usual practice. She said she stood beside the trainee on the line and that she saw her role as encouraging a new boner not to hurry. She would do any birds the trainee had missed. She said she gave other advice and instruction. She gave as an example that she told a trainee with regard to the wings, "You make sure you cut the tendon before you pull. If you pull and you feel it's hard, you cut it again because if the tendon is not cut, you wouldn't be able to pull." Her evidence was that if she was working as someone's buddy and saw that person raising her arm above shoulder height when cutting the wings, she would report it to the leading hand.

[35]

[13] Standing beside a trainee would not impact upon her ability to see what cuts were being done but would inevitably impact on her ability to observe the precise movement and elevation of the employee's arm which was not contiguous to her. This is a likely explanation of her failure to report that Mrs Karanfilov was raising her arm above shoulder height while working on the line. Another likely explanation is found in the fact that significant arm abduction was more common, and therefore went unremarked, than the defendant's witnesses were prepared to concede in their oral evidence.

[36]

[14] At the time Mrs Karanfilov commenced working for the defendant, the normal working hours were 8 hours a day, 5 days a week. Employees in the boning room commenced work at 6.15am and finished at 3.00pm. They had breaks of 45 minutes for lunch, 15 minutes for morning tea or smoko and 10 minutes for afternoon tea or smoko. On 14 April 1997, which was about 2 weeks after Mrs Karanfilov started work on the moving line, the working hours were changed to 9.5 hours, 4 days a week. The starting time remained 6.15am but the finishing time was changed to 4.30pm. The lunch break was shortened by 5 minutes and the afternoon smoko was extended by 5 minutes. During the periods between commencement at 6.15am and smoko at 9.00am, between smoko and lunch at 11.45am and between the resumption after lunch and afternoon smoko, an employee, known as a rover, would take over the line so that each employee could take a break to go to the toilet (known as a "lap-break"). The lap-breaks in other parts of the defendant's abattoirs were five minutes but because the boning room was further away from the toilets, the boners were given seven minutes. The expected lap-break between afternoon smoko and the end of the day's work was usually, but not always taken. No other breaks were permitted.

[37]

[15] Mrs Karanfilov says, and I accept, that she found some difficulty performing the longer day's work. The work was hard, the hours long and she found it tiring. It appears from the evidence given by her co-worker, Mrs Daraz, that this was a common experience amongst the workers on the boning line. It caused Mrs Daraz swollen hands, sore neck and elbows and she noticed others with similar problems.

[38]

[16] Dr Low, a specialist in occupational medicine, expressed the opinion that employers should exercise caution when extending working hours in occupations that involve forceful exertion because of the risk of an exponential and not just a linear increase in injury. The risk cannot be precisely quantified and is affected by other factors but it is something that employers should consider. As Mr Peatey, Inghams' loss control manager, said in his evidence, the increase in the length of the shifts from 8 hours to 9.5 hours was designed to increase production.

[39]

[17] Mr King, who gave expert evidence on behalf of the plaintiff, is a director of the InterSafe Group Pty Ltd, and the principal of Ken L King & Associates Pty Ltd, a company consulting in ergonomics and safety. Mr King is a consultant in incident investigation and analysis, safety and ergonomics audits and reviews of plant, products and systems, design and research. said the perceived demands of the task increase significantly with the longer working day. When such a change is made factors likely to be associated with undue work demands should be monitored closely; this could include employee feedback, and monitoring changes in injury patterns and absenteeism. In his opinion symptom surveys should be included in the feedback from employees.

[40]

[18] Mr Peatey said that Inghams consulted Dr Eaton, the defendant's part time occupational physician, who was of the opinion that the extra hours "would be okay." His advice was only sought and given orally rather than in writing. He was not called at trial to give evidence as to his opinion or his basis for forming that opinion. No proper ergonomic assessment was made of any risk attached to increasing the working hours from 8 to 9.5 hours per day. Absenteeism rose when the hours were increased.

[41]

[19] On about four occasions between when Mrs Karanfilov started work with Inghams and the termination of that work because of her shoulder injury, Mrs Karanfilov was asked to and did perform a fifth day's work on the boning line as overtime. Those occasions were in the weeks ending 7 June, 26 July, 2 August and 15 November 1997. She refused other requests in October and November for her to work overtime. There was no compulsion to work overtime. This overtime was worked on her rostered day off (RDO). It was the practice for each employee to work 4 week days at ordinary time with the fifth week day being an RDO. The RDO generally fell on a different day each week. Although Mrs Karanfilov said in examination in chief that she thought she may have worked six days one week, and told Dr Low and Mr King that she had regularly worked 9.5 hours a day for 5 days, this was not borne out by the defendant's records, which, while incomplete, were accepted as being correct.

[42]

[20] Various tasks were performed on the boning line. At the time Mrs Karanfilov worked at Inghams, the following tasks were performed on the boning line. First, one person took chickens from a basket and placed them by hand on cones which then moved down the conveyor belt. The cones were approximately 23cms apart. The next task was cutting the wings which were severed and removed from the carcass. Four or five boners attended to the wing removal which required the use of a sharp knife. The wings were removed by severing a tendon which connected the wing to the body of the chicken. Each boner on this task would do five chickens a minute, or one chicken wing every 6 seconds. They would face towards their right as they commenced cutting the first wing and continue to complete the second wing of the chicken. The next task was inspecting and trimming the breast of any remaining bone and removing the skin. Four or five boners attended to that task which required the use of a knife and scissors. The skin was pulled off the breast by hand and then thrown above shoulder level onto another conveyor belt. Then the tenderloins were removed with a knife. Two boners attended to that task which did not require the boner to cut as high or with as much force as removing the wings. Following that the chicken pieces on the belt were checked by one worker who trimmed the meat with scissors.

[43]

[21] Each employee stayed on the same line but each 30 minutes during the day rotated to a different task on the line. In a 9.5 hour day each worker, therefore, rotated about 17 times. However, as there were fewer tasks than this, the same task would be performed several times during the day although never for more than 30 minutes at a time. The line was set to process 20 chicken carcasses per minute.

[44]

[22] It follows that at any given time, one third of the boners were working on wing removal, one third on breast removal and one third on other tasks. Each boner would, therefore, be obliged to work more often on wings and breasts than on less strenuous tasks. The most difficult work was cutting the wings, followed by removal of the breast and then cutting the tenderloins. While there was some difference in the tasks, all required quite similar movements of the hands and arms. While rotation was useful, its utility was limited by the fact that the wings and breasts would have to be worked on more often than anything else and by the fact that although less arm abduction was required for tasks other than the wing cuts, the elements of flexion, forward reaching and hand movements remained.

[45]

[23] The severing of wings required lifting of the dominant arm, whether left or right, from the shoulder and forcible cutting through the tendon. This was the task which required both the greatest force and the highest elevation of the arm. It appears there was a natural tendency of workers doing this task to lift their arms to or above shoulder height.[3] When Mrs Stringfellow demonstrated this cut in the witness box, she raised her elbow and arm to shoulder height, i.e. at 90º to the shoulder. Mrs Singh, also demonstrating this cut in the witness box, raised her bent arm so that her hand was at chin height, i.e. above shoulder height. Mrs Singh said that the breast removal was done at the same or almost the same height. Both leading hands called by the defendant unintentionally demonstrated an unsafe means of doing the work required in the course of giving their evidence.

[46]

[24] When Mrs Karanfilov started working on the line she noticed that other workers were not keeping their arm level lower than their shoulders. The photographic and videotaped evidence tends to support this observation. In addition, it was supported by Mr King, one of the experts who gave evidence. He observed significant shoulder abduction on the day of the inspection of the boning line which was videotaped, particularly during removal of the wings.

[47]

[25] Both Mrs Singh and Mrs Stringfellow said they would correct a worker who lifted her arm above 90º abduction. This takes account of the fact that any abduction above 60º, particularly if it was repeated, was known to be unsafe from an occupational health and safety point of view. Yet Mrs Stringfellow could not actually remember as a leading hand giving instruction to a boner about not working with their dominant arm above shoulder level. Mrs Stringfellow, when confronted with the arm abductions captured on the videotape, sought to discount or minimise their significance saying she had never otherwise seen such arm abductions except on a learner. Yet it seems clear that the five minutes on videotape were caught quite at random and accurately reflect common practice. The arm abductions are similar to the arm abductions made by Mrs Stringfellow and Mrs Singh when they demonstrated how cuts were done while they were giving evidence. Dr Low observed that on the day of the inspection it was relatively common for people to be working with their shoulders elevated, particularly when they were removing the chicken wings. Certainly there was not, and could not be, any suggestion that the line was set up to benefit the plaintiff or her case. Mrs Stringfellow, as leading hand, was in fact present on the line which was videotaped.

[48]

[26] The Coyle Report, in February 1996, observed that the cutting tasks on the boning line involved loading on the shoulders, forearms and hands.[4] Coyle said:

[49]

"There are a variety of tasks at this station all of which involve similar musculoskeletal loading. These include cutting flesh from the bird with a knife, cutting with scissors, pulling flesh from the bird then occasionally reaching through to the centre conveyor to extract a piece that needs further attention. The necessity to debur the knife on the knife sharpeners above the operator requires repetitive shoulder flexion and reaching forward to place the knife into the deburring/sharpening apparatus."

[50]

He also observed that there was no facility to adjust the height of the workstation and the use of height adjustment stands appeared to be unsystematic. The photographs which accompany the report show a boner using a 90º or slightly greater arm abduction as she worked.[5] The oral evidence given by Inghams' employees would suggest otherwise, but I have concluded that this excessive arm abduction was in fact not uncommon. Whenever photographs or video taped evidence was available, it contradicted their claims that this degree of arm abduction was rare and immediately corrected. Mrs Stringfellow's attitude to intervening was rather telling, revealed by the following exchange during re-examination:

[51]

"All right. Would you wait until somebody had persistently for a period of time worked in that situation, crowded up with arm above shoulder, before intervening, as it were, or was it your practice to do so in - more regularly than that?-- I suppose - it all depended how far they had their arm up."

[52]

[27] The work in the boning room consisted of a number of workers standing beside one another on a line. There were a number of lines but not all of them were used. On the advice of the occupational therapist, Lesley Stephenson, they were set to different heights to accommodate workers of different heights. Mrs Karanfilov is about 169cms in height. Yet Mrs Daraz, who worked beside her from time to time, was of different height. So the practice differed from what was envisaged by the way in which the lines were set up. In addition, stands were provided for workers on the boning line to adjust their height. Mrs Karanfilov, however, understood that these stands were only for the use of workers of shorter stature. As she was not short, she did not perceive that she might use a stand to make her work easier. No one advised her to use one. She gave evidence, which I accept, that if she had been told that it would have been better for her, she would have used a stand. The part of the floor on which the boners who were doing wing cuts were standing was slightly raised on Ms Stephenson's advice but, in Mr King's opinion, insufficiently so.

[53]

[28] As well as those tasks, the workers on the boning line were obliged regularly to sharpen their knives on a sharpening device known as a mouse trap sharpener. The knife was drawn through this sharpener every three or four cuts. The use of the mouse trap sharpener required the worker to place the knife in a gap at the top of the sharpener, hold it and then pull it out. It did not require the use of force. The mouse trap sharpener was at about shoulder height in front of the boner over the conveyor belt. It was about an arm's length in front of the boner. It had apparently been placed there as a result of a recommendation made by Lesley Stephenson in 1991. However, such use of the mouse trap sharpener had two consequences: firstly, it required arm flexion and static muscle loading and secondly, it decreased the time for the shoulder and arm muscles to recover from the cutting motion used on the chicken.

[54]

[29] Each boning line was supervised by a leading hand whose job was apparently to walk up and down the line to see that everything was operating satisfactorily and that the boners on the line were doing their tasks correctly. However, no leading hand ever corrected Mrs Karanfilov for her faulty and dangerous cutting technique.

[55]

[30] An explanation for this is probably found in the fact that for up to half of the day, the leading hand was herself working on the boning line rather than supervising. This evidence was given by Mrs Stringfellow. Mrs Stringfellow commenced work for Inghams 20 years ago and was promoted to leading hand in the boning room in 1988. She has worked in that position ever since.

[56]

[31] Mrs Karanfilov gave evidence that one of the problems on the boning line was that people tended to crowd too close together. This evidence was supported by another employee, Mrs Daraz, and the leading hand, Mrs Stringfellow. Mrs Stringfellow said that the typical distance between boners on the line would be about half a metre. Friends would tend to move even closer together - about 23 centimetres apart. If they were as close as that they would, she said, be told to move further apart. This evidence by the employees was supported by expert evidence given in the case. In his report Mr King observed:

[57]

"A `boning manual' understood to have been developed in conjunction with an American consultant (Mr James Hewell) nominated a minimum spacing "of not less than 1 metre between operators". This would indicate that an individual operator could only process every sixth cone (giving a nominal centre line spacing of 115cm); if every fifth cone was processed the spacing would be less than the nominated operator frequency (or 92cm)."

[58]

The video taken of the inspection on 30 July 2001 showed operators working on every fourth cone. They were not separated by one metre. There may have been more boners on this line than usual but Mrs Stringfellow's evidence, as I have said, was that typically the boners would be separated by half a metre.

[59]

[32] In 1994, Tony Mitchell, a physiotherapist, prepared a "soft tissue education" brochure for the defendant. There is no evidence that this was given to employees in Mrs Karanfilov's position. It informs the reader, inter alia, that space constraints add to risks. In February 1996, the Coyle Report said that workers in the boning room identified inadequate and cramped work space as the most important problem in that area.[6]

[60]

[33] Dr Low gave evidence, which I accept, that the boners should have been located a greater distance from each other than the distance he observed. The line was certainly long enough to allow a greater distance between them. It would have been difficult for an individual boner unilaterally to increase the space on either side of her. It would have been simple, however, for such an instruction to be given and enforced by the leading hands. Alternatively, the boners could have been instructed that a specified distance should be kept between them. Neither of these steps were taken.

[61]

[34] Dr Low said that he noted at the inspection that some of the boners were working too close together which was inadvisable from a safety point of view and that a greater distance would have been more appropriate.

[62]

[35] Mrs Karanfilov had a further difficulty because she was left handed. As a left hander, Mrs Karanfilov was therefore likely to collide or interfere or obstruct with a right-handed person working close beside her on the line. Mrs Karanfilov said no changes were made to accommodate the fact that she was left-handed. She said she had to lift her arm above shoulder level in order not to collide with the person next to her. If she did not, they would soon complain about it. Bumping of this kind was a problem because each worker held a very sharp knife in her dominant hand. While the non-dominant arm was protected by a plastic guard while the wings were removed, the dominant arm was unprotected except for a rubber glove on the hand.

[63]

[36] Mr King notes that Mrs Karanfilov was not aware of any allowances made for her left hand knife usage and she assumed a position on the line just as did any other employee. He refers to the fact that there was no instruction for example to increase the spacing to an employee on her left for example and yet the space required for an adjacent left and right-handed person was significantly greater than the one metre space otherwise required. The obvious solution was to place the left-handed worker at the end of each boning group along the line so their arm movements would not be obstructed and they would not run the risk of obstructing a right-handed person next to them.

[64]

[37] Mr King also says that Mrs Karanfilov was not aware of any audits being undertaken while she was a member of the boning line nor was she questioned on any difficulties she might be experiencing. It appears that there was no such system of checking and auditing in place during the time Mrs Karanfilov was employed.

[65]

[38] Even so, she was employed in long hours of highly repetitive work. Mr King in his report says that the tasks described and observed have a number of features known to be associated with an increased risk of injury.

[66]

"A NIOSH review[[7]] states there is: `evidence for a positive association between highly repetitive work and should[er] MSDs' (musculoskeletal disorders), although they do note that the evidence in this regard is limited. This review, however, goes on to state that:

[67]

`There is evidence for a relationship between repeated or sustained shoulder postures with greater than 60 degrees of flexion or abduction and shoulder MSDs. There is evidence for both shoulder tendonitis and non-specific shoulder pain.'

[68]

This is consistent with the observations of Chaffin and Andersson[[8]] who state that:

[69]

`A particular concern in the specification of arm work requirements is that the hands not have to reach frequently or be held for sustained periods above shoulder height. Jobs that require such elevated arm activities have been shown to create `degenerative tendonitis' in the biceps and supraspinatus muscles ...'"

[70]

[39] Mr King concluded that for all operations it would be preferable to keep arm abduction to less than 60º rather than the 90+º that he observed. Mr King recommended a detailed investigation of how to achieve this lower arm abduction and monitoring of its success. He made a number of practical suggestions in his oral evidence, such as making the boners higher, angling the cones so that the point of the cut is lower, and trialling a range of mouse trap sharpener positions so that using it did not require an elevated arm reach. From a safety point of view, he said, it was not acceptable to leave the high risk elements of the boners' work in place. In addition, Mr King was of the opinion that:

[71]

"attention should have been paid to Mrs Karanfilov's plight by ensuring she had an adequate workspace (so that her knife arm abduction was no higher than necessary). This is no different to making allowance for other specific characteristics of an operator (such as those of significantly short or tall stature)."

[72]

The wings, the removal of which was the most risky task from an occupational health and safety point of view, are no longer removed by hand on the boning line. They are now removed by machine before the chicken carcasses reach the boning line.

[73]

Mrs Karanfilov's injury - lack of initial complaint

[74]

[40] In late October 1997, Mrs Karanfilov started to experience pain in her left shoulder. She was, as I have said, a left-handed person and started to experience pain in that shoulder while she was working. In particular, the pain was brought on when she was working on the breast or the wings. At first the pain was very slight. For some weeks she put up with the pain and did not complain. She said that she did not complain because most of the other workers had shoulder pain. She applied anti-inflammatory cream. Mrs Karanfilov gave evidence which I accept that the attitude of the leading hands and supervisors was that the employees should work hard and not complain. They said that they did not like complaints. She recalled that being said to her by a supervisor on her first day. Others repeated similar sentiments.

[75]

[41] The poor attitude of some leading hands and management had been identified as a problem in the Coyle Report.[9] In reviewing the claims history in 1996,[10] Coyle reported:

[76]

"The comments that we have made previously on the adequacy of incident/accident records kept by the company are reiterated. Quite simply, it is abundantly apparent that there are a number of near misses, minor incidents and real injuries which are not being reported. This is due to a number of factors. Some of this is an unrealistic concern among operators that they will be transferred to other work that they may not be capable of performing. Some of it is a concern amongst operators to continue working in a section that they like and feel comfortable with even though they are fully aware that it is not in their best interests from a health and safety viewpoint. Part of it is due to the overly simplified nature of accident recording/accident investigation within the company. In this regard, it is also relevant to note that there is a positive disincentive against reporting accidents, problems, injuries and the like by leading hands and supervisors. Indeed, one experienced supervisor is most clearly of the habit of castigating any individuals who complain of anything remotely related to Occupational Health and Safety. Thus the issue arises as to how accurate are the records kept in the company, viz a viz, actual injury/accident rates?"

[77]

[42] Mrs Stringfellow says that she did not know about any such problems. Mr Peatey said he was aware that near misses might not be reported but was unaware that minor incidents and real injuries had not been reported. Mr Peatey believed that after receipt of the Coyle Report in 1996, the General Manager called in section heads and told them that this was "not on" but he was not personally involved nor himself present for this.

[78]

[43] It is regarded as important by experts in workplace health and safety to have an effective early reporting system in place. Mr King referred in his report to an Eastman Kodak publication[11] which deals in part with the management of repetitive motion disorders in the workplace and advises employers to:

[79]

"Train workers to recognise early signs of repetitive-motion disorders in the workplace and to report them immediately so they can be reassigned to a less stressful job until the symptoms subside. Early detection of susceptibility can reduce the risk for more severe problems and decrease the time lost from work."

[80]

The oral instruction given on the induction day to report any symptoms was insufficient training and was undermined in this case by the workplace culture for which the defendant must take responsibility. In addition, Mrs Karanfilov thought her shoulder symptoms would settle so did not report them until it interfered with her ability to work. Dr Robinson, her treating doctor, thought that it may have made a difference if she had reported her injury earlier. The defendant however led evidence through Dr Duke, an orthopaedic surgeon, that it would not have made any difference to the outcome if she had reported it earlier.

[81]

[44] On 27 November 1997, Mrs Karanfilov complained of the pain to her supervisor, Robin Child. Ms Child sent her to the nurse at Inghams who in turn sent her to see her general practitioner, Dr Willett. Dr Willett certified her fit for light duties until 11 December 1997. However, her shoulder did not improve and she ceased work on 6 December 1997 and then returned to light duties on 22 December 1997. She said that the onset of pain was related to an increase in working hours. Mr Peatey, the loss control manager of the defendant, confirmed that production increased for Christmas, sometimes requiring a six day week although Mrs Karanfilov herself did not work any overtime after the week ending 15 November. She continued working on light duties until 13 February 1998 when she ceased working for Inghams. She found the lifting tasks she was given while on light duties too difficult for her while she was injured. She has been unable to work since then.

[82]

[45] In a statement made to WorkCover on 20 January 1998 and a notice of claim for damages dated 21 December 1999, Mrs Karanfilov attributed her injury to her constant repetitious work which required the use of some force. The fact that she did not then attribute particular significance to the added difficulties she was having as a left-hander in a crowded environment does not lead me to conclude that she did not suffer those difficulties, but rather that at that time she did not understand their significance. She told Mr King and Dr Low about those difficulties when she again saw the boning line on the inspection conducted on 30 July 2001.

[83]

[46] On 24 July 2001, the court ordered that the "plaintiff be allowed to inspect the premises of the defendant (namely the area known as the `boning room') on Monday, 30 July 2001 at 10.00am while the boning room and system is operating at its normal capacity." The order was made by consent but the plaintiff was obliged to make the application after objection by the defendant to the inspection taking place while the plant was operating. In spite of the order imposing a qualification that the boning room and system be operating at its normal capacity, the defendant called evidence from witnesses to the effect that there were more people working on the line at the time of inspection than usual.

[84]

[47] In addition, the defendant led evidence, which I accept, that certain of the cuts made to the chicken carcass had changed from 1997, when the plaintiff was working there, to July 2001 when a video of the inspection was made. Where the boners threw the finished product had changed, and there was at least one additional boner on the line. However, the leading hand, Mrs Stringfellow, agreed in her evidence that there was no greater need for boners to lift their elbows higher in 2001 than there had been in 1997.

[85]

[48] It follows that one must exercise some circumspection in drawing conclusions from what is shown on the video of the inspection. Nevertheless, certain inferences can be drawn. The first is that the video supports the evidence that it was usual for the employees who worked on the boning line and performing a similar task to clump together so that a left-handed person who was not instructed to go to the left hand end of the group would be likely to be too close to a right-handed person standing on the former's left-hand side. Secondly, it shows that it was common for employees, even experienced employees, to lift their arms above the preferred safe position while cutting the chicken carcasses, particularly when severing the wings. Dr Low, who was present on that occasion, said that it appeared to be relatively common. Thirdly, these unsafe arm positions apparently went uncorrected. Fourthly, sharpening of the knife required extension of the arm to, or even above, shoulder height. The video was useful in checking the system of work which the defendant said was operating at its plant against the reality of what actually occurred on the factory floor.

[86]

[49] It is worth setting out in full Mr King's summary and conclusions which, in my view, are supported by the evidence and which I accept.

[87]

"Ms Karanfilov worked on the boning line of a poultry processing plant. The wing removal involved knife work with an elevated upper arm for all employees; because Ms Karanfilov was left handed she was conscious of interfering with the right handed adjacent boner and therefore maximised her arm abduction.

[88]

It was further noted that the knife sharpener was positioned at about shoulder level and arm's reach away. In the context of the other workloads, it was noted this was a demanding task and would have reduced the recovery time otherwise available from the boning process.

[89]

Rotation occurred on a regular basis although the other tasks also involved forceful and repetitive motions, albeit with a more favourable arm position. It was in this work context that an increase in shift hours occurred. Ms Karanfilov eventually developed pain in her left shoulder. This was not reported until she reached a point where she could not continue with her work.

[90]

It was noted that some early OH&S activities at the plant had focussed on characteristics of the boning operation, but it was suggested that these fell short of meeting reasonable ergonomic workstation design and task criteria published by a variety of authorities. It was suggested that a specific investigation would be required to determine if the task could be redesigned to improve arm postures in general; in this regard, the knife sharpener could be lowered and moved closer to the operator. While it would be desirable for the task postures to be improved in general, compromises made by Ms Karanfilov in raising her arm to clear the adjacent boner should have been recognised had appropriate audits been undertaken.

[91]

In any event, it was suggested that had an early reporting system been in place, the excessive demands experienced by Ms Karanfilov should have been identified by having her report the symptoms at onset; appropriate medical intervention could then have been sought together with an examination of the workplace and task characteristics associated with these symptoms. Such reporting systems are particularly important where repetitive tasks are undertaken. Such a system would also help identify any adverse consequences of the extended shift hours although it was suggested that such a major change affecting work demands should have been accompanied by its own assessment program. None of these OH&S management features appear to have been in place and Ms Karanfilov continued working until damage had occurred."

[92]

[50] The defendant had taken advice on occupational health and safety matters. As well as obtaining advice from the physiotherapist, Tony Mitchell, the defendant relied on advice from Lesley Stephenson, an occupational therapist, between 1988 and 1993. Ms Stephenson was not called to give evidence although a number of her written reports were in evidence. In 1990, Ms Stephenson had identified that the boning room at the defendant's Murarrie plant was responsible for the majority of injuries in the abattoir that required physiotherapy. She listed two major reasons. The task was complex and repetitive by nature and the training procedure lacked consistency as different supervisors themselves used different techniques. The inherent nature of the task did not, in her view, mean, however, that injuries could not be reduced.

[93]

[51] In April 1990, Ms Stephenson made a detailed proposal for boning room staff to address the following factors: encourage consistency of boning techniques; promote improved teaching methods; give staff increased awareness and confidence in teaching role; and improve communication with the boning room leading hands to increase job satisfaction and morale. She recommended that the training schedule should ideally be held at the end of each day once every 3 weeks for a period of 30 to 45 minutes. It does not appear that this recommendation was ever implemented. Leading hands were not retrained or re-briefed. Neither were the boners.

[94]

[52] In about 1991, a boning manual[12] was prepared for the defendant by an engineer, Mr Hewell. The manual shows the state of knowledge of the defendant. For example it says at p 5:

[95]

"It is important that management and line operators, be made aware of the five basic rules for avoiding strain injuries, when working on a boning line.

[96]

* Do not make jerking movements, all movements should be smooth."

[97]

"To allow each individual operator to perform each act using the prescribed method, a spacing of not less than one metre between operators is recommended."

[98]

It does not appear that these recommendations were adequately implemented.

[99]

[53] In 1993, Ms Stephenson recommended against a new wing cut and thigh cut which had been introduced on a trial basis, because of excessive load on the shoulder. Mr Peatey said that recommendation was acted upon. From 1993 to the time of trial, the defendant obtained advice from an occupational therapist from Workplace Solutions. No reports from that company were tendered in evidence.

[100]

[54] In February 1996, Inghams received a report it had commissioned from Ian Coyle on "Manual Handling Processing Operations Accident Prevention and Occupational Health and Safety Issues". Relevant parts of that report have already been referred to in these reasons. His findings and conclusions were:

[101]

"The Murarrie plant poses significant problems for effective Occupational Health and Safety management. It is poorly designed and requires significant capital expenditure to improve working conditions to an acceptable level. In particular some physical hazards were identified which have the potential to cause very severe injury or death. Indeed, it is our opinion that many of the problems identified in the plant are intractable and can only be comprehensively dealt with by major rebuilding. Notwithstanding this, in the medium term it is possible to greatly reduce the risk of injuries by relatively minor capital expenditure.

[102]

The Ergonomics of processing operations are poor in most areas. However, there is scope for a job rotation scheme which will very significantly reduce the risk of injuries occurring. This has important implications.

[103]

Apart from the problems posed by poor plant design, there are significant problems with Occupational Health and Safety Management as far as resources, training, policy and procedures are concerned. These latter issues are readily resolvable."

[104]

The defendant had taken some steps to put in place a safe system of work by 1997 but those steps were clearly insufficient. A new plant to replace the Murarrie plant was opened in August 2001.

[105]

[55] Mrs Karanfilov's general practitioner referred her to a physiotherapist and prescribed painkillers as well as Voltaren for the inflammation. She had x-rays of her shoulder and an ultrasound was performed. On 6 February 1998, she saw an orthopaedic surgeon, Dr Mark Robinson. When he first saw Mrs Karanfilov, she had severe pain in her left shoulder which had had a gradual onset and had given her difficulty with sleeping, overhead activity and driving. Dr Robinson specialises as a hand and upper limb surgeon and I have no reason to doubt the accuracy of his observations, the efficiency of his treatment decisions or his view about the aetiology of Mrs Karanfilov's problems.

[106]

[56] Dr Robinson provided a number of detailed reports to WorkCover, the defendant's insurer, as to his treatment of Mrs Karanfilov. His first report, dated 18 February 1998, ascribes the cause of her severe shoulder pain to her "repetitive work as a chicken boner." The x-rays which had been performed demonstrated calcific tendonitis of the supraspinatus tendon of her left shoulder. This was confirmed by ultrasound. There was no radiological evidence that she had a calcific deposit in her shoulder prior to working for Inghams. Dr Robinson's examination revealed wasting of Mrs Karanfilov's deltoid. She was tender in the region of the greater tuberosity and had severe limitation of movement of her left shoulder. She was able "to flex to 90°, abduct to 40° and had 20° of external rotation and internal rotation only to the hip" The movement of her shoulder was severely limited by pain due to subacromial impingement secondary to a large calcific deposit in her supraspinatus tendon. Dr Robinson injected her subacromial space with local anaesthetic and cortisone.

[107]

[57] Dr Robinson reviewed Mrs Karanfilov again on 2 March 1998. In his opinion the pain in her shoulder was improved significantly with a subacromial injection. This indicated to him that most of her symptoms were coming from the subacromial bursa. At the time of trial, Mrs Karanfilov was not of the view that the injection had had any beneficial effect. That is likely to be explained by her poor outcome after the surgery which Dr Robinson performed later that month and the inefficacy of subsequent injections. Dr Robinson reiterated his opinion that, as she worked as a process worker with repetitive upper limb activity, the most likely aggravating event was related to her duties at work. In his opinion, which I accept, the problems were both initiated and aggravated by her job as a chicken boner. Dr Robinson said that the common thread with most tendonitis in the shoulder was repetitive activity with the arm at an angle greater than 30 or 45° to the body.

[108]

[58] On 13 March 1998, with WorkCover's approval, Dr Robinson performed an arthroscopy of Mrs Karanfilov's left shoulder and an orthoscopic debridement of her rotator cuff. When he performed this procedure he found a small area of thickened supraspinatus tendon with a limited amount of overlying synovitis. The calcium under this elevated area was hard and was debrided using a chondrotome. The coracoid acromial ligament which was overlying the tissue was also released. The tendonitis was due to the presence of calcification in the tendon and impingement under the coraco-acromial ligament.

[109]

[59] He reviewed her again on 30 March when she was continuing to have extreme pain in her shoulder. Dr Robinson recommended a course of physiotherapy and rotator cuff rehabilitation which apparently gave her some pain relief. When he saw her on 15 April 1998, Dr Robinson again injected her subacromial space with local anaesthetic and cortisone to improve movement in her shoulder. His opinion at that time was that her progress following surgery was likely to be very slow.

[110]

[60] When she was reviewed on 13 May 1998, Mrs Karanfilov reported that she had been sick for three days following the previous injection and was continuing to be troubled by severe pain. Examination of her shoulder demonstrated that she had lost a significant amount of external rotation and was only able to externally rotate to 20° short of neutral. Dr Robinson diagnosed that she had frozen shoulder and ceased physiotherapy as it was only aggravating her pain.

[111]

[61] When Dr Robinson again reviewed Mrs Karanfilov on 24 June 1998, there was no improvement in her symptoms and she was still troubled by severe ongoing shoulder pain. Her shoulder was by then locked in internal rotation. An x-ray showed that while the calcific deposit in the tendon had completely resolved, there was severe osteopenia around her shoulder. She had an ankylosed shoulder joint. He thought it was unlikely that she would regain a functional range of motion of her shoulder and was guarded about the prospects of her returning to work.

[112]

[62] In October 1998, Dr Robinson sought approval from WorkCover to perform a manipulation under anaesthetic and a steroid injection in her left shoulder. He also sought permission to perform an MRI scan to look at the condition of the rotator cuff muscles with regard to permanent muscle degeneration and likelihood of the ability to rehabilitate the muscles of her shoulder.

[113]

[63] Mrs Karanfilov was admitted to the Sunnybank Private Hospital on 14 December 1998 where Dr Robinson examined her left shoulder under general anaesthetic. The examination revealed extremely limited movement: 30° of gleno-humeral flexion, 10° of gleno-humeral abduction and 10° of gleno-humeral external rotation. He injected her shoulder with anaesthetic and cortisone.

[114]

[64] On 23 December 1998, Dr Robinson reviewed Mrs Karanfilov and found no improvement in the range of motion of her shoulder. She was troubled by a swollen hand. He recommended review by a pain clinic. In his opinion her condition was stable and stationary. She had developed calcific tendonitis as a result of her employment on the production line. Treatment of the calcific tendonitis resulted in a frozen shoulder. This had resulted in permanent incapacity which he assessed at 45% for upper limb function. Her shoulder has not improved since then and is now unlikely to improve.

[115]

[65] Dr Gillett, another orthopaedic surgeon, was of the opinion that she had a 60% permanent impairment of upper limb function due to work-related events and her subsequent treatment. He expressed the view that the repetitive working practices were likely to have caused the problems and then set in place the need for surgical intervention.

[116]

[66] Dr Robinson's evidence, which I accept, is that supraspinatus tendonitis is associated with work-related practices which require the humerus to be abducted more than 30° from the axis of the body on a repetitive or prolonged basis. This is independent of the age of the worker. Dr Duke, another orthopaedic surgeon who examined Mrs Karanfilov for the purposes of this litigation in April 2000, was of the opinion that her work caused an aggravation of an underlying calcific tendonitis of her shoulder. He was of the opinion that she had a very high chance of developing symptoms in relation to her calcific tendonitis if she had not undertaken work with Inghams. The symptoms may have developed within one or two years. Surgery would have been required when her symptoms dictated it.

[117]

[67] Dr Robinson accepted that some workers have a higher risk of developing this than others. However, that does not mean that her shoulder would have become symptomatic if she had not worked at Inghams. Even if she had developed calcification, it does not necessarily follow that that would in itself have caused pain as calcification is known to be present in people who remain asymptomatic.[13] Dr Gillett expressed the view that it is impossible to define when or if her condition would have become symptomatic had she not had these working practices. If it had become symptomatic it would probably have been in her mid to late thirties but she may never have become symptomatic. Even if she had, she was unlikely to have had surgical intervention and so would have had an entirely different outcome. In other words, even if she had independently developed calcification, she would not have developed a frozen shoulder from surgery. As Dr Robinson said, in a domestic environment she would have been able to adapt her work habits to suit her own needs, whereas on the boning line at Inghams, she had no such option. In spite of the fact that she has been effectively without the use of her left arm for more than four years, she has not developed tendonitis in her right shoulder in a domestic, rather than work, situation.

[118]

[68] What is known in this case is that Mrs Karanfilov developed painful supraspinatus tendonitis with calcification as a result of her work at Inghams. Appropriate medical treatment was undertaken to relieve her pain but unfortunately the operation to do so left her with a frozen shoulder which has left her disabled, in pain and unable to use her left arm and so unable to work and unable to perform many household tasks that she was previously able to perform. It was not contested that as a result of the pain and disability from which she suffers, Mrs Karanfilov will never be able to participate in the paid work force again. The noticeable wasting and discolouration of her left upper arm and its restricted movement were painfully apparent when she gave evidence in this case. As her general practitioner observed on 7 February 2002, her left shoulder is functionless and the prognosis is bleak.

[119]

[69] Dr Ian Low, a specialist in occupational medicine, gave evidence that research[14] has shown that:

[120]

"Humeral tendinitis (and shoulder problems in general) are found in assembly line workers and others whose work entails sustained abduction or flexion of the arms (to more than 60º) or forceful repetition of these movements."

[121]

In his view, a similar result may occur with flexion of less than 60º.

[122]

[70] However, Dr Low was of the view that Mrs Karanfilov's condition might well have had a different explanation from that preferred by the orthopaedic surgeons. Constant elevation of the arm leads to quite persistent tightness in the musculature of the neck/shoulder region which in turn leads to pain. That persistent tightness and pain frequently leads, he said, to a diagnosis of some pathology in the shoulder region and therefore surgical procedures which can in turn lead to problems in their own right.

[123]

[71] I am, on balance, more convinced by the diagnosis of Dr Robinson as the treating doctor, as well as his analysis of the cause of her condition and his view as to her prospects of otherwise being in the same position which was supported by Dr Gillett. Dr Robinson was much more familiar with Mrs Karaniflov's condition as his patient than was Dr Duke. Even if Dr Low's diagnosis were correct, the effect on the plaintiff has been the same. As a result of shoulder problems, however described, caused by her work as a chicken boner she underwent surgery which led to her frozen shoulder and consequent disability.

[124]

[72] Prior to her injury, Mrs Karanfilov was a fit, healthy, active young person with a happy outlook and many friends with whom she socialised. Now, as well as physical pain and immobility, Mrs Karanfilov also suffers from an adjustment disorder with depressed and anxious mood. She has become inactive and put on weight. She has become socially isolated, suffers from sleep problems and has threatened and once attempted suicide. She has received treatment from Dr Lilian Cameron, an experienced psychiatrist, for her psychological problems which have arisen because of her injury and ongoing pain. Her relationship with her husband has changed. She now yells at him and the children because of her frustration and pain. There has also been an inevitable deterioration in her sexual relationship with her husband. She no longer experiences any desire for a sexual relationship. Her depressed mood and altered self image are directly attributable to the pain she suffers from her frozen shoulder. She takes antidepressants and an anti-anxiety drug daily as well as analgesics four to six hourly. She suffers from constant pain which is sufficiently acute to wake her every two hours during the night.

[125]

[73] I am satisfied on the balance of probabilities that Mrs Karanfilov suffered the injuries to her left shoulder and arm as well as psychological injury because of her work at the defendant's abattoir. The injury was caused by the defendant's requiring her to work long hours doing highly repetitive, strenuous work quickly in crowded conditions, using an unsafe arm and shoulder abduction combined with adjustment for her left handedness and lack of effective instruction as to safe working practices. These matters are set out in detail in paragraphs [7] to [42] of these reasons.

[126]

Compensation for loss of ability to perform household tasks

[127]

[74] Prior to her injury, the division of responsibility for household tasks in the Karanfilov household was very much along traditional lines. Mr Karanfilov attended to gardening, washing the car and odd jobs about the house. Mrs Karanfilov attended to all other housework, such as cleaning, vacuuming, washing, ironing, making the beds and cooking. Once she commenced working, Mrs Karanfilov still undertook all household tasks without assistance from her husband or paid help.

[128]

[75] In order to take over these tasks after Mrs Karanfilov's injury, her husband was forced to reduce his hours of employment and then give up his paid employment altogether in November 1999 after she made a serious attempt on her life once she realised her condition was unlikely to improve. As he said, he was forced to choose between his work and his family. There were no other family members in Australia who could help out. In addition, he massages her arm and shoulder for half an hour every morning and every evening in order to restore circulation and relieve her pain.

[129]

[76] Mr Karanfilov gave evidence that if Mrs Karanfilov is successful in the litigation, he will return to work as they would be able to pay someone to come in and do the domestic tasks formerly done by her which he has attended to. It was agreed between the parties that if someone was employed to perform this work, that person would be employed for about 12 hours per week at $15 an hour or $180 per week. Mr and Mrs Karanfilov have not employed anyone to date to attend to the housework as they have not been able to afford it.

[130]

[77] The plaintiff has not continued with a claim for past or future gratuitous care. This has been done on the basis that s 315 of the WorkCover Act has abolished the right to claim damages for gratuitous care. However, Mrs Karanfilov has claimed damages for the cost of professional assistance which I am satisfied will be engaged by her in the future. Section 315 of the WorkCover Act is headed "gratuitous services" and prevents an award of damages for services "for which the worker is not, and would ordinarily not be, liable to pay." This appears to leave open a claim by a plaintiff for the value of paid care. This conclusion is supported by the Explanatory Memorandum relating to s 211 of the Act, which deals with an entitlement to a lump sum for gratuitous care:[15]

[131]

"The lump sum is designed to replace the Griffiths v Kerkemeyer `head of damage' under common law which is abolished under chapter 5. It is not designed for the provision of professional care or services for the worker - this is still available under common law." (emphasis added)

[132]

[78] Although s 315 appears to be addressed solely to damages for gratuitous services, the defendant submits that a claim by Mrs Karanfilov for the cost of services provided by a professional is precluded because she is under no obligation to engage an external provider. Therefore, in the defendant's submission, Mrs Karanfilov is not "liable to pay" and the claim is barred by s 315. The defendant also relies on a passage from Blundell v Musgrave,[16] in which Dixon CJ stated that a plaintiff's ability to claim damages for a cost is "a matter depending upon his legal liability to pay it."[17] It was submitted that as a matter of general principle the plaintiff must have a current liability before damages may be awarded for the cost.

[133]

[79] As to the first argument, once Mrs Karanfilov engages a professional service provider, she will immediately become liable to pay for the services. Section 315 twice recites the phrase "that have been, or are to be, provided" suggesting that the liability to pay may arise in the future. In addition, s 315 is headed "gratuitous services" and is clearly aimed only at services which are provided free of charge. The section should not be interpreted so expansively that the phrase, "is not, and would ordinarily not be, liable to pay" should be taken to exclude a debt that has not yet been incurred but will create liability as soon as the services are engaged.

[134]

[80] The defendant's second argument, which was based upon a general principle derived from Blundell v Musgrave, must also fail. Blundell v Musgrave was a case in which the services that were the subject of dispute had already been provided free of charge by a naval authority. The rationale behind Dixon CJ's statement was that there could be no compensable loss in relation to a service for which the plaintiff had no liability. In the present case, Mrs Karanfilov's liability will accrue immediately upon contracting for the services. The passage from Blundell v Musgrave does not attempt to restrict damages only to those costs for which the plaintiff is legally liable at the time of judgment.

[135]

[81] Furthermore, since Blundell v Musgrave, the High Court has made clear, through Griffiths v Kerkemeyer[18] and Van Gervan v Fenton,[19] that the basis of an award of damages for nursing or caring services is the need for the services and not the cost of providing them. This point is made in the context of gratuitous services, but it would appear to have equal application when the need is met by professional services. Hence, the ability to claim damages is not dependant upon liability to pay, but rather upon the need that is in existence at the time of trial.

[136]

[82] It follows that s 315 does not prevent a plaintiff from claiming damages for future paid care. Provided that at the time of trial the plaintiff genuinely intends to engage professional services, even if that intention is formed after taking legal advice, there is no reason why the claim for paid care should not succeed.

[137]

[83] The assessment of damages for personal injury which is sustained by a worker in a workplace is governed by common law and legislation. The legislation in question has been amended since 1997 when Mrs Karanfilov suffered her injury. The statutes that need to be considered in this case are the WorkCover Queensland Act 1996 (the "WorkCover Act") and the Law Reform Act 1995. The WorkCover Act was subsequently substantially amended by the WorkCover Queensland Amendment Act 2001 (the "WorkCover Amendment Act") which clarified and simplified the relevant part[20] of the WorkCover Act. However, the law applicable to this case is the WorkCover Act prior to the commencement of the WorkCover Amendment Act.[21] The Law Reform Act 1995 was also amended by the Law Reform (Contributory Negligence) Amendment Act 2001. Although that amendment has some retrospective effect,[22] it is the law before that amendment was made that is applicable to this case.[23]

[138]

[84] The claim in this case is brought on three alternative grounds:

[139]

Each of these grounds requires separate consideration of the common law and the effect, if any, on the common law of the statutes referred to earlier.

[140]

[85] Part 8 of Chapter 5 of the WorkCover Act deals with questions of causation and contributory negligence in the assessment of liability for workplace injuries. It will be convenient to return to this legislation after consideration of the Law Reform Act 1995.

[141]

[86] The assessment of liability in tort is also affected by the Law Reform Act 1995. At the relevant time, s 10(1) provided:

[142]

"Apportionment of liability in case of contributory negligence

[143]

10(1) Where any person suffers damage as the result partly of the person's own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

[144]

"Fault" was defined in s 5 to mean:

[145]

"negligence, breach of statutory duty, or other act or omission which gives rise to a liability in tort or would, apart from this part, give rise to contributory negligence."

[146]

[87] As was held by the High Court in Astley v Austrust Ltd,[24] in considering virtually identical South Australian legislation,[25] an action for damages for breach of contract is outside the scope of this legislation. The majority held[26] that "a construction applying the apportionment legislation to contract cases is contrary to the text, history and purpose of the legislation." An award of damages for breach of contract may not be reduced under the Law Reform Act because of contributory negligence on the part of the plaintiff even in a case where the defendant is liable concurrently in tort and contract for breach of a duty of care.

[147]

[88] It has long been recognised that an employer may owe concurrent and often co-extensive duties of care to the employee both in contract and in tort. This is such a case. As Thomas JA observed in Wylie v ANI Corporation Limited,[27] a plaintiff is not required to elect between a cause of action in tort or contract. The plaintiff is entitled to ask for the most favourable judgment that may be recoverable under either cause of action. In the usual case, prior to the introduction of the amendments to the Law Reform Act, where there is concurrent liability in tort and contract, the usual result will be that it is the contractual claim on which judgment will be given.

[148]

[89] As damages awarded in a contractual claim cannot be reduced at common law on account of contributory negligence even where there is a tortious claim relating to the same facts, it is irrelevant, when considering the claim for breach of contract, to determine whether or not a finding of contributory negligence should or should not be made. A finding of contributory negligence has no application to a contractual claim.[28]

[149]

[90] As the judgment of the majority of the High Court in Astley v Austrust Ltd observed,[29] the correct question to ask in a contractual claim is whether there was a causal connection between the plaintiff's damage and the breach of contract or, in other words, whether the defendant caused or materially contributed to the injury complained of by the plaintiff.[30] At common law, a plaintiff is entitled to recover for all of the damage that is causally connected to the defendant's breach even if the plaintiff's conduct has contributed to the damage that he or she has suffered.[31] The test of causation is whether the defendant's conduct "was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it."[32] It is enough in a breach of contract case that the defendant's act be a cause of the damage.[33] In this case, the employer's conduct was more than just a cause of the plaintiff's injury. As a matter of common sense, the conduct of the defendant caused the injury which the plaintiff suffered in the defendant's workplace. It failed in its contractual duty to take reasonable care for the safety of its employee, Mrs Karanfilov. Its conduct was the dominant cause of her injury.

[150]

[91] The defendant submitted that the common law rule that an award of damages for breach of contract cannot be reduced on account of contributory negligence has been abrogated in 1996 by the WorkCover Act. It relied on a decision of Dutney J in Martin v Mackay City Council.[34] However, the Court of Appeal in Hawthorne v Thiess Contractors Pty Ltd[35] to which Dutney J was not apparently referred, dealt with a claim made in the period after the introduction of Part 8 of Chapter 5 of the WorkCover Act and before the 2001 amendments to the Law Reform Act. Thomas JA observed[36] of a claim for a personal injury in the workplace:

[151]

"Claims of the present kind are almost invariably brought in the alternative upon both breach of contract and negligence, and since Astley contributory negligence has become a virtual dead letter because of the plaintiff's ultimate right to elect to proceed in contract."

[152]

[92] In 2001, as I have already said, the legislature amended the Law Reform Act 1995. The Law Reform (Contributory Negligence) Amendment Act 2001 was introduced to overcome the effect of Astley v Austrust Ltd. It replaces the word "fault" with "wrong" and defines "wrong" to include breaches of contractual duty.[37] Under s 21 of the Amendment Act[38] the provisions have retrospective effect except where litigation has already been commenced.

[153]

[93] In addition, s 21(2)(a) of the Amendment Act provides that the section will not act retrospectively when "the wrong relates to a WorkCover damages injury sustained before 1 July 2001 for which final relief has not been granted by a court before the commencement."[39]

[154]

[94] The Explanatory Memorandum to the Act suggests that the exception was made to preserve the rights of injured employees who commenced litigation on the assumption that Astley would apply to their cases. The Explanatory Memorandum states, at pp 3-4:

[155]

"The Amendments are also expressed not to apply to claims under the WorkCover Queensland Act 1996. Concern was expressed during consultation on the Bill about the consequences for WorkCover claimants if the provisions of the Bill applied to claims under that Act. Few such claims have been commenced in the courts because of the extensive pre-proceedings process set out in the WorkCover Queensland Act 1996 .... This is an appropriate response that will ensure that the effect of the High Court's decision is quarantined without adversely affecting the position of litigants who have acted on the basis of the law as determined in Astley." (emphasis added)

[156]

[95] It seems that the legislature introduced s 21(2)(a) on the assumption that the effect of Astley was to prevent apportionment for contributory negligence in claims made for breach of the contract of employment under the WorkCover Act. The express legislative intention was to preserve the rights that employees had under the WorkCover Act. What those rights were depends on a close textual analysis of the WorkCover Act.

[157]

[96] So far as Part 8 of Chapter 5 of the WorkCover Act is concerned, the sections on which the defendant relied are s 312 and s 314 which provide, inter alia:

[158]

312.(1) In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim--

[159]

(a) that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable;

[160]

(b) that the actual and direct event giving rise to the worker's injury was actually foreseen or reasonably readily foreseeable by the employer;

[161]

(e) that the worker did everything reasonably possible to avoid sustaining the injury;

[162]

(2) If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim.

[163]

(3) If the claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim.

[164]

(4) If the claimant fails to prove any of the matters mentioned in subsection (1)(c) to (i), the court must--

[165]

(b) reduce the claimant's damages on the basis that the worker substantially contributed to the worker's injury.

[166]

(5) In deciding whether a worker has been guilty of completely causative or contributory negligence, the court is not confined to the consideration of and reliance on the matters mentioned in subsection (1)(c) to (i).

[167]

Reduction of damages because of contributory negligence

[168]

314.(1) A court must make a finding of contributory negligence if the worker--

[169]

(a) relevantly failed to comply, so far as was practicable, with instructions given by the worker's employer for the health and safety of the worker or other persons unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker's injury; or

[170]

(2) If any injury sustained by a worker was caused or contributed to by 1 or more of the circumstances mentioned in subsection (1), the court must reduce the damages for the worker's injury under subsection (3).

[171]

(3) For subsection (2), the court must reduce the award of damages by at least 25% for each of the circumstances causing or contributing to the injury."

[172]

[97] The defendant has pleaded in its defence that the plaintiff was in breach of various of those matters referred to in the WorkCover Act:

[173]

1. that she failed to do everything reasonably possible to avoid sustaining the injury (para 17A(a) of the Defence): see s 312(1)(e) of the WorkCover Act.

[174]

2. that she failed to comply with directions given to her for her health and safety at work by the defendant (para 17A(b) of the Defence): see s 314(1)(a) of the WorkCover Act.

[175]

The defendant then pleads that as a result of s 312(4) of the WorkCover Act, the plaintiff's claim must be dismissed or substantially reduced on the basis that she contributed to her own injuries. This can apply only to the pleaded breach of s 312(1)(e).

[176]

[98] The defendant has also pleaded in the alternative that the plaintiff's damages must be reduced by not less than 25% for contributory negligence pursuant to s 314(2) of the WorkCover Act. This can apply only to the pleaded breach of s 314(1)(a) of the WorkCover Act.

[177]

[99] The defendant has also pleaded[40] it made genuine and reasonable attempts to put in place an appropriate system of work to guard the plaintiff against injury that might arise from the performance of her work. Although it is not specifically pleaded, it follows as a matter of law, as provided by s 314(2), that, if the plaintiff relies solely on a failure by the employer to provide a safe system of work and fails to prove that the employer had made no such genuine and reasonable attempt, then the court must dismiss the claim.

[178]

[100] Finally the defendant pleaded that the actual event giving rise to her injury was not actually foreseen, nor reasonably readily foreseeable, by the defendant and that the court must therefore dismiss the claim pursuant to s 312(3) of the WorkCover Act.

[179]

[101] In examining which of the defences can be pleaded to a contractual claim, it is necessary to examine the precise wording of s 312 and s 314. The interpretation of these sections presents difficulties not the least of which is that the language used is not apt for the common law as it then was.[41]

[180]

[102] The preamble to s 312(1) sets out what the court must consider when "deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence or at all." In determining a contractual claim, as I have already observed, the court is not considering whether damages should be reduced on account of contributory negligence. Presumably that form of words is present for two reasons: firstly, the court is deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence if the claim is made in tort. Secondly, prior to the High Court's decision in Astley v Austrust Ltd, when this section was passed, the legislature would have assumed, wrongly as it turned out, that a finding of contributory negligence would reduce the damages awarded in a contractual action. The decision in Astley v Austrust Ltd has made it clear that the court, in deciding whether a plaintiff should succeed in a claim made in contract, is not "deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence."

[181]

[103] The court is, however, considering whether damages should be awarded "at all" for breach of contract. While in considering a claim for breach of contract, the court cannot reduce the damages on the basis that the worker has substantially contributed to the worker's injury, it can dismiss the claim on the basis that the plaintiff has failed to establish that the defendant's conduct caused the plaintiff's loss.

[182]

[104] It appears that s 312(1) does not set out or supplant the duties of employers and workers at common law but in a contractual claim specifies certain additional matters the court must consider in determining whether or not there is a causal connection between the defendant's conduct and the plaintiff's injury.

[183]

[105] In this case the plaintiff must prove the matters set out in s 312(1)(b) or (e), or the court will dismiss the claim; and if the plaintiff is relying exclusively on a failure by the employer to provide a safe system of work, she must prove the matter set out in s 312(1)(a) or the court will dismiss the claim.

[184]

[106] It is most convenient to consider each of the subsections in turn and the equivalent contractual duty at common law.

[185]

[107] An employer has a contractual duty to provide a safe system of work for an employee.[42] The employer in this case failed to provide a safe system of work in that the plaintiff engaged in highly repetitive work for long hours in overcrowded conditions which, led her, particularly as a left hander, to use an unsafe arm abduction to bone the chicken meat. This breach of contract caused Mrs Karanfilov's injury and so prima facie the defendant is liable to the plaintiff.

[186]

[108] Section 312(1)(a) and (2) of the WorkCover Act however provide that the court, in deciding whether the plaintiff is entitled to recover damages at all, in a case where the plaintiff is relying exclusively on a failure by the employer to provide a safe system of work, must have regard to whether the employer had made no genuine or reasonable attempt to put in place an appropriate system of work; to guard the worker against injury; arising out of events that were reasonably readily foreseeable. If the claimant fails to prove those matters then the claim must be dismissed.

[187]

[109] The first matter to consider is the precondition that the case must be one in which the plaintiff has relied exclusively on a failure to provide a safe system of work.[43] This is not such a case. In paragraph 12(e) of her amended statement of claim, the plaintiff pleads that the defendant failed to provide and maintain any or any proper or safe system of work. However, that is not the only particular of negligence, breach of contract or breach of statutory duty on which she relies. She also pleaded in paragraphs 12(a) to (c) of the amended statement of claim the following particulars of negligence and breach of contract:

[188]

"(a) Failing in take of any adequate precautions for the safety of the plaintiff whilst she was engaged in carrying out her work;

[189]

(b) Exposing the plaintiff to a risk of damage or injury of which it knew or ought to have known;

[190]

[191]

A further particular of "failing to ensure that the place at which the plaintiff carried out her assigned work was safe" was formally abandoned in the plaintiff's responses to the defendant's request for further and better particulars. Although it was subsequently reproduced in its original form in the amended statement of claim in paragraph 12(d), this appears to have been an oversight and not an attempt to amend the statement of claim to replead this particular of negligence.

[192]

[110] The amended statement of claim then pleads a number of further particulars of the defendant's negligence or breach of contract. Paragraphs 12(f), (g), (h), (i), (j), (k) and (l) are said to be further particulars of the breaches alleged in paragraphs 12(a) and (e) of the amended statement of claim. The plaintiff has also pleaded other particulars of negligence in paragraphs 12(fa), (ga), (ha), (hb) and (ja) in the amended statement of claim. In addition, in paragraph 12(m) of the amended statement of claim, the plaintiff alleges that the defendant was in breach of its statutory duty in that it failed "to ensure the workplace health and safety of the plaintiff in breach of the provisions of section 28 of the Workplace Health and Safety Act 1995."

[193]

[111] It follows from the pleadings in this case that this is not a case in which the plaintiff is relying exclusively on a failure by the employer to provide a safe system of work. The requirements found in s 312(2) do not, therefore, apply to this case. If they did, then in my view the plaintiff would, in any event, have satisfied them. Although the defendant made attempts, no doubt genuine, to put in place a safe system of work, they failed to satisfy the more stringent objective test of reasonableness. In view of the fact that the defendant knew or ought to have known of the dangers in the system of work it imposed in the workplace, the attempts made by the defendant to guard the plaintiff against injury were not reasonable. The events which led to the injury, which was the way in which the plaintiff worked in the chicken boning line, were reasonably readily foreseeable. Nothing unexpected happened to cause the injury.

[194]

Duty not to expose employees to reasonably foreseeable risk of injury

[195]

[112] An employer has a non-delegable duty at common law to take reasonable care for the safety of its employees[44]. This extends to anticipating foreseeable acts of negligence on the employee's part and of guarding against them.[45] The employer's duty includes a duty not to expose employees to unnecessary risks of injury.[46] In this case that translates into a duty not to expose the employee to reasonably foreseeable risk of injury. As these reasons show, the risk to the plaintiff of being injured by the work described was reasonably foreseeable by the defendant and so it was in breach of its contractual duty to the plaintiff.

[196]

[113] Pursuant to s 312(1)(b) and (3) of the WorkCover Act, the plaintiff also has to satisfy the court that the actual and direct event giving rise to the plaintiff's injury was actually foreseen or reasonably readily foreseeable by the defendant. "Event" is defined in s 33 as follows:

[197]

(1) An event is anything that results in injury, including a latent onset injury, to a worker.

[198]

(2) An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker.

[199]

(3) A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period.

[200]

(4) If multiple injuries result from an event, they are taken to have happened in 1 event.

[201]

"latent onset injury" means an insidious disease."

[202]

[114] The test concentrates attention not on whether the injury was foreseeable but whether the event which gave rise to the injury was foreseen or foreseeable. In this case the event which gave rise to the injury was the highly repetitive work on the boning line for long hours in overcrowded conditions where the plaintiff, as a left hander, used unsafe arm and shoulder abduction of 90º or more to bone the chicken meat. This event was foreseeable, and reasonably and readily so, because it was the conditions under which the plaintiff worked in the defendant's chicken abattoir. This requirement has been satisfied and it is therefore not appropriate to dismiss the plaintiff's claim pursuant to s 312(3).

[203]

An employee has a duty to carry out his or her duties with reasonable care and skill.[47]

[204]

[115] This appears to be the common law corollary of the matter set out in s 312(1)(e), "that the worker did everything reasonably possible to avoid sustaining injury." Whichever way this duty is formulated, it is an objective test and must be determined in the circumstances of the individual case. The question is not whether Mrs Karanfilov did everything possible to avoid sustaining injury but rather whether she did everything reasonably possible. As an unskilled worker on a process line, she had little control over the system of work. She made inappropriate adaptations to the difficulties created by the boning line but they were similar to the adaptations made by other boners which apparently went uncorrected. She did the best she could in the circumstances in which she found herself. She was in quite a different position from a skilled employee who exercises a greater degree of autonomy and decision making in the workplace. In all of the circumstances, she cannot be said to have failed in her contractual duty to carry out her duties with reasonable care and skill. Nor can it be said that she did not do everything reasonably possible to avoid sustaining injury.

[205]

[116] The defendant also relies on s 314(1)(a), (2) and (3) of the WorkCover Act to reduce the plaintiff's damages. This section does not include the introductory words found in s 312. Rather it requires the court to make a finding of contributory negligence if any of the circumstances set out in s 314(1) apply. The only relevant subsection to the circumstances of this case, is s 314(1)(a) which applies if the worker-

[206]

"relevantly failed to comply, so far as was practicable, with instructions given by the worker's employer for the health and safety of the worker ... unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker's injury."

[207]

[117] If the court makes such a finding then s 314(2) applies so that if the injury sustained by the worker was caused (or contributed to) by one of the circumstances mentioned in s 314(1), the court must reduce the award of damages by at least 25 per cent for each of the circumstances causing (or contributing to) the injury. It can be seen that while s 314(1) requires the court, even, it would seem, in a contractual action, to make a finding of contributory negligence, subsections (2) and (3) use the more conventional language of causation but then require the court to reduce the damages awarded by at least 25 per cent for each such cause. This would appear to be a statutory variation on the rule referred to in Astley v Austrust Ltd that a contractual claim is not reduced because there is another, less significant, cause.

[208]

[118] It remains to determine whether the plaintiff's claim should be reduced because of the consideration set out in s 314(1)(a). This subsection requires examination firstly of the instructions given by the employer for the health and safety of the workers; secondly any relevant failure to comply, so far as compliance was practicable; and thirdly, if both of those are satisfied, whether the plaintiff is able to prove, on the balance of probabilities, that the failure did not cause (or contribute to) the worker's injury.

[209]

[119] The instructions given to Mrs Karanfilov are referred to earlier in this judgment. Part of her first day of employment was spent listening to lectures on topics including workplace health and safety. She received training on the standing belt for two weeks and then had a buddy beside her on her first couple of day on the moving line. There was no specific instruction to Mrs Karanfilov not to raise her dominant arm above 60º abduction nor adequate instruction not to raise it to over above 90º abduction. She was not instructed to stand a safe distance from the boner next to her. She was not instructed as to the proper use of the stands. Nor was she instructed as to any changes she should make to her working practices because of being left-handed.

[210]

[120] Since no such instructions were given it is not necessary to consider whether Mrs Karanfilov complied with such instructions or if compliance was practicable. In view of the working conditions provided by the defendant, it seems that compliance with any instructions would not have been practicable.

[211]

[121] On induction day, Mrs Karanfilov was instructed to report any workplace injury no matter how minor. However this instruction was implicitly contradicted by the expressed hostility of her supervisor to complaints. This attitude made it impractical for her to complain. Even if this were not the case, the evidence led by the defendant, through its expert orthopaedic surgeon, was that earlier reporting would not have made any difference to the eventual outcome. I do not believe in the circumstances that it is appropriate to reduce the damages awarded for this reason.

[212]

[122] I am satisfied that the defendant's breach of contract caused the injury to the plaintiff and that it should not be reduced for contributory negligence, which is relevant only to a claim in tort, or for any of the reasons set out in ss 312 and 314 of the WorkCover Act. If I were considering the question of contributory negligence in tort, I would have not concluded that Mrs Karanfilov's actions were responsible to the extent of reducing the employer's responsibility for her injuries. No contribution would be called for.

[213]

[123] Although it is not strictly necessary in the circumstances to consider whether the plaintiff has proved that the defendant was in breach of its statutory duty in that it failed "to ensure the workplace health and safety of the plaintiff in breach of the provisions of s 28 of the Workplace Health and Safety Act 1995", for the sake of completeness I will address this question. In Schiliro v Peppercorn Child Care Centres Pty Ltd,[48] the Court of Appeal held that s 28 of the Workplace Health and Safety Act gives rise to a civil cause of action for employees. The section imposes civil liability on an employer who has failed to ensure the health and safety of its employees and thereby causes injury to an employee, as occurred in this case, unless the employer demonstrates that it has discharged its obligations under s 26 or s 27 or that it has established a defence under s 37 of the Workplace Health and Safety Act. As there was no allegation in this case of any regulation, ministerial notice, advisory standard or industry code of practice which was breached, the relevant defence is found in subss 27(2) and (3) which provide:

[214]

"(2) The person may choose any appropriate way to discharge the person's workplace health and safety obligation for exposure to the risk.

[215]

(3) However, the person discharges the workplace health and safety obligation for exposure to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged."

[216]

[124] For reasons already canvassed in detail in this judgment, the defendant has not satisfied its onus of showing that its obligation to take reasonable precautions and exercise proper diligence, has been discharged. The defendant is, therefore, also liable to the plaintiff for its breach of the statutory duty found in s 28 of the Workplace Health and Safety Act. For the reasons set out above, s 312 and s 314 of the WorkCover Act have no relevance on the facts of this case.

[217]

[125] It remains only to consider the quantum of damages for breach of contract and breach of statutory duty which in this case are the same.

[218]

[126] In final submissions made by counsel, the plaintiff claimed $100,000.00 damages for past and future pain and suffering and loss of amenities. The defendant submitted that if the full amount of the plaintiff's injury were compensable, the appropriate amount is $65,000.00 In my view, the proper amount to award is $80,000.00.

[219]

[127] Section 318 of the WorkCover Act precludes the court from awarding interest on this head of damage.

[220]

[128] Agreement was reached between the parties as to the quantum of special damages as follows:

[221]

1. Hospital expenses paid by WorkCover Queensland $1,721.63

[222]

2. Medical expenses paid by WorkCover Queensland $5,194.56

[223]

3. Rehabilitation expenses paid by WorkCover Queensland $1,005.73

[224]

4. Other expenses paid by WorkCover Queensland $2,330.42

[225]

5. Refund to Health Insurance Commission $1,474.45

[226]

6. Pharmaceutical expenses (Panadol/Panadine/Ativan/Xnanx/Tolvon/Cipromil) $1,700.00

[227]

[129] It is appropriate to award interest on those expenses she has paid out herself. It is now 4 ½ years since her injury. Accordingly I propose to allow interest at 5% on $3,857.90 for 4 ½ years, being $868.03.

[228]

[130] The evidence suggests that the plaintiff would have taken advantage of 12 months' unpaid maternity leave if she had not been injured. The parties have agreed that if a deduction is to be made for this contingency, as in my view it should be, the appropriate amount of such deduction is $24,000.00. The calculation of potential past earnings is:

[229]

1. Period 06.12.97 to 19.12.97 (two weeks) @ $433.75 per week $867.50

[230]

2. Period 14.02.98 to 30.06.98 (19.5 weeks) @ $433.75 per week $8,458.12

[231]

3. Period 01.07.98 to 30.06.99 (1 year) @ $505.56 net per week $26,289.00

[232]

4. Period 01.07.99 to 30.06.99 (1 year) @ $445.83 net per week $23,183.00

[233]

5. Period 01.07.00 to 30.06.01 (1 year) @ $482.21 net per week $25,075.00

[234]

6. Period 01.07.01 to 17.05.02 (46 weeks) @ $482.21 net per week $22,181.66

[235]

The deduction of $24,000.00 reduces this to $82,054.28. Because she may not have become pregnant with a third child, I do not propose to reduce this amount for any further contingencies.

[236]

[131] Interest on net past economic loss (after deduction of $21,295.22 net weekly workers' compensation payments, $41,585.00 disability settlement from WorkCover, and $18,000.00 estimated Centrelink payments) at 5% for the 3 years since compensation payments ceased is $293.51.

[237]

[132] The plaintiff has claimed future economic loss of $482.21 net per week[49] for 32 years (multiplier of 845) discounted by 15% for contingencies being $346,347.33.

[238]

[133] While it was her intention to continue working until she retired there are a number of factors which require the court to discount for the contingency that she may not have continued work until retirement age. She may otherwise have suffered injury or lost or given up her job for other reasons. Her previous employment had not been for sustained periods and, while this may be explicable by her personal circumstances, it also throws some doubt on whether she would have been able to sustain a lifetime of permanent unskilled employment. In my view the discount for contingencies should be more in the region of 25%. This would give an amount for future economic loss of $305,600.58.

[239]

[134] The plaintiff has claimed an amount of 7% of past economic loss which is $5,743.80.

[240]

[135] The plaintiff has claimed an amount of 9% of future economic loss which is $27,504.05.

[241]

[136] The plaintiff has claimed 12 hours per week at $15 per hour discounted at 5%[50] per annum for 50 years life expectancy (multiplier 976.2). This amount is $175,716.00. For the reasons already given, I am satisfied that it is appropriate to award this amount under this head of damage.

[242]

[137] The parties have agreed that the appropriate award of damages under this head is $15,000.00. She has need for further analgesics for pain as well a drugs to deal with her psychological distress. She requires future psychiatric treatment.

[243]

[138] The refund to WorkCover Queensland is $78,516.31.

[244]

[139] I, therefore, award damages to the plaintiff for the defendant's breach of its contract of employment and breach of statutory duty in the sum of $633,757.93. I will hear argument as to costs.

[245]

[1] "Report on Manual Handling Processing Operations Accident Prevention and Occupational Health and Safety Issues at Inghams Enterprises Murarrie Plant" (the "Coyle Report") Part 3, Table 1, Table 2.

[246]

[2] The video shows about 5 minutes of work on the boning line on 30 July 2001.

[247]

[3] See, for example, the photographs which form Exhibit 24.

[248]

[7] National Institute of Occupational Safety & Health, Musculoskeletal Disorders and Workplace Factors, US Department of Health & Human Services, July 1997.

[249]

[8] Chaffin, D.B. & Andersson, G.B.J., Occupational Biomechanics, Second Edition, Wiley-Interscience, U.S.A, 1991.

[250]

[11] Eastman Kodak Company, Ergonomic Design for People at Work, Vol 2, Van Nostrand Reinhold, 1983.

[251]

[13] Only 35% of all calcific deposits produce symptoms at some time: Waris, P., "Occupational cervicobrachial syndromes" Scand J work environ & health 6 (1980): suppl 3, 3-14 at 8.

[252]

[14] Pheasant, S., "Ergonomics, Work and Health", The Macmillan Press, 1991 at 86.

[253]

[15] Explanatory Memorandum to WorkCover Act, p 85.

[254]

[16] [1956] HCA 66; (1956) 96 CLR 73.

[255]

[18] [1977] HCA 45; (1977) 139 CLR 161 at 164, 191-192.

[256]

[19] [1992] HCA 54; (1992) 175 CLR 327 at 333.

[257]

[21] WorkCover Queensland Act 1996 s 588.

[258]

[28] Wylie v ANI Corporation Limited [2002] 1 Qd R 320 at 326, 333 and 335.

[259]

[30] Keeys v State of Queensland [1998] 2 Qd R 36 at 39.

[260]

[32] March v Stramore (Ex M H Pty Ltd) [1991] HCA 12; (1991) 171 CLR 506 at 515 and 522.

[261]

[33] Wylie v ANI Corporation Limited (supra) at 337.

[262]

[34] [2001] QSC 433.

[263]

[35] [2001] QCA 223.

[264]

[37] The definition is now contained in s 5 of the Law Reform Act 1995.

[265]

[38] Now s 21 of the Law Reform Act 1995.

[266]

[39] Under s 2, the Act is taken to have commenced on 7 August 2001.

[267]

[41] It is perhaps fortunate that this difficulty only apples to injuries suffered by workers between 3 February 1997 and 1 July 2001.

[268]

[42] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 687-688.

[269]

[43] Plumb v State of Queensland [2000] QCA 258 at [16].

[270]

[44] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672.

[271]

[45] Nelson v BHP Coal Pty Ltd [2000] QCA 505 at [11] and [46]; Jones v Persal & Company (a firm) [2000] QCA 386 at [8].

[272]

[46] Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308.

[273]

[47] Wylie v ANI Corporation Limited (supra) at 327, 328 and 339; cf Nelson v BHP Coal Pty Ltd [2000] QCA 505 at [7].

[274]

[48] [2000] QCA 18 at [49].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (274 paragraphs)

Parties

Cases Cited (7)