Plaintiff v Defendant

2 The plaintiff alleges that as a result of performing this work, he suffered an injury to his left knee, which ultimately necessitated total left knee replacement surgery. He also alleges he sustained consequential gastrointestinal upset and a psychological injury which included anxiety and depression. In this proceeding, the plaintiff claims that these injuries were caused by the negligence of the defendant and/or breaches of statutory duty. Whilst the plaintiff initially relied upon Regulations 12, 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999, after some evidence given on behalf of the defendant, the plaintiff abandoned reliance on Regulations 12, 13 and 14.

3 The defendant denies that the work performed by the plaintiff in the course of his employment was unduly stressful. It also denies that any such work caused the plaintiff injury. Further, the allegations of negligence and breach of statutory duty are denied. Additionally, the defendant asserts that if there was any negligence or breach of statutory duty on its part, then, in any event, the plaintiff was himself guilty of contributory negligence.

4 The plaintiff's claim is governed by s 134AB of the Accident Compensation Act 1985. The plaintiff claims both pain and suffering damages and pecuniary loss damages within the meaning of s 134AB(37).

5 This proceeding originally came on for hearing before J. Forrest J and a jury on 23 September 2010. However, following defence counsel's address to the jury, his Honour discharged the jury and ordered a re-trial by another judge for hearing as a cause.[2] This is the re-trial ordered by his Honour.

6 In the jury trial, the plaintiff gave evidence. He also called the following witnesses:

(a) Mr Mark Dohrman, a consulting engineer and ergonomist;

(d) Ms Anita Boecksteiner, the plaintiff's treating orthopaedic surgeon; and

(e) Mr Kevin King, a former director of orthopaedic surgery at the Royal Melbourne Hospital.

(a) Mr Bruce Smith, a general foreperson at Toyota, who was the plaintiff's supervisor from 1988 until the time the plaintiff ceased work in 2005;

(c) Mr Andrew Anstee, an ergonomist and sports physiotherapist.

8 During the course of the jury trial, various exhibits were tendered and some reports were read. It was agreed between the parties that the reports read and exhibits tendered before the jury would form part of the evidence in the present trial. Similarly, the parties agreed that the transcripts of the evidence of the witnesses called before the jury would stand as evidence of those witnesses in the present trial. Additionally, the parties agreed that the plaintiff would give further viva voce evidence before me and be cross-examined further.

9 Pursuant to the parties' agreement, the evidence given during the jury trial was relied upon by both sides; the reports read to the jury (Dr Cheung and Mr Shimmin) were taken as having been read into evidence; the exhibits before the jury (P1 to P10 and D1 to D7) were re-tendered; the plaintiff gave evidence-in-chief, was cross-examined and re-examined again; and an additional exhibit (D8), a DVD film of the plaintiff taken on 21 April 2009, was tendered.

10 At the conclusion of the plaintiff's evidence on the re-trial, the defendant sought time to consider whether it would call any further evidence. After a short adjournment, the defendant advised the Court that it did not propose to seek to call any further evidence.[3] However, immediately before the commencement of final addresses on the re-trial the defendant tendered another exhibit (D 9) headed "Agreed Summary Machine/Line Breakdown for the 5A Line". This exhibit set out in summary form the days in November and December 2004 (and 2 days in January 2005) where there had been more than 15 minutes downtime in addition to certain planned breaks.

11 The plaintiff was born on 21 April 1945 in Timor. His schooling in Timor was to a primary school level. He emigrated from Timor to Australia in 1975, and commenced employment with the defendant in 1977. He worked for the defendant for some 27 years prior to ceasing work in 2005. During the period the subject of this proceeding (October 1999 to mid 2005), the plaintiff worked on what was known as the 5A line. This work required him to take motor car components such as roof panels, doors, fenders and the like off a conveyor and stack them on a pallet or stillage. Whilst I will deal below with the competing cases concerning the true nature and extent of this work, fundamentally this proceeding concerns a dispute between the plaintiff and the defendant as to the heaviness (or otherwise) of this work, whether it was unduly repetitive and whether it involved excessive twisting movements, having regard to any repetitive or heavy aspects of it.

12 As originally pleaded and presented, the plaintiff's case was one in which it was contended that the defendant was negligent for requiring him to perform repetitive stressful movements, moving and stacking of the order of 300 motor vehicle components per hour, each component weighing up to 12 kilograms. In addition to relying upon a negligence cause of action, the plaintiff relied upon what was said to be breaches of Regulations 12, 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999. The plaintiff's breach of statutory duty case was premised upon the proposition that a risk assessment of the plaintiff's work was required to be performed in accordance with Regulations 12, 13 and 14 -and that this (a risk assessment) had not been done. However, during the course of the jury trial, it became apparent that the defendant had indeed conducted such a risk assessment. As a result, the plaintiff's claim in respect of breach of statutory duty was narrowed to a claim in respect of Regulation 15 only. Regulation 15 provides:

"15. Duty of employer to carry out risk control

(1) An employer must ensure that any risk of a musculoskeletal disorder affecting an employee occurring -

(a) is eliminated; or

(b) if it is not practicable to eliminate the risk, is reduced so far as is practicable.

(2) The employer must not use information, training or instruction in manual handling techniques as the sole or primary means of controlling risk unless the following ways of controlling risk are not practicable -

(a) altering -

(i) the workplace, or environmental conditions, including heat, cold and vibration, where the task involving manual handling is carried out; or

(ii) the systems of work used to carry out the task involving manual handling;

(b) changing the objects used in the task involving manual handling;

(c) using mechanical aids."

13 In substance, the plaintiff's evidence was as follows. The plaintiff worked the afternoon shift, starting at 4.30pm and finishing at 1.00am. There was often overtime. When he did overtime, he might finish at 3.00am or 4.00am. Some weeks he worked a six day week, and others a seven day week.

14 The 5A line produced 300 or more components per hour. The conveyor was always running. Some of the larger components (roof panels and hood outers) would be lifted off the conveyor by two people. For other components (doors), the conveyor could be split, with two doors being lifted off by two different workers at the one time. For yet other components (fenders and the like), two people at the end of the conveyor would take turns in lifting each component off the conveyor and putting it on the pallet (stillage).

15 Whilst some workers were allocated this stacking work, others were allocated the task of inspecting or checking each component. The plaintiff gave varying answers as to the extent to which he performed the more physically demanding stacking work. At one point,[4] he said he was "always stacking". At another point,[5] he said he was "usually all day stacking". At yet another point,[6] he said he spent 60% of his time stacking and 20% checking. Before me, he said his evidence about 60% was a mathematical error and he meant to say 80%. In cross-examination, the plaintiff was closely questioned about this answer. He maintained that he made a miscalculation.[7]

16 The plaintiff said that when carrying out the stacking work and filling the pallet, you had to work quickly. The pallet would be changed by pushing a button. The time this would take would be "a couple of seconds, maybe a minute". Stacking was described as harder than checking because the stacker had to pick up every panel (component) and the line moved very quickly, requiring the stacker to work very quickly.[8]

17 The plaintiff was cross-examined about breaks that would occur when a dye was changed or when there was a malfunction or when the pallet or stillage had to be changed. Further, it was put to the plaintiff that his answer concerning performing stacking work for 60% of the time was the true position. I will deal further with the question of breaks, stoppages and the speed of the line below. These issues were dealt with in some detail by the plaintiff's supervisor, Mr Smith, who was called on behalf of the defendant. It is sufficient at this stage to say that the tenor of the plaintiff's evidence was one of performing repetitive work which required him to work quickly dealing with of the order of 300 components of varying weights (some seven to eight kilograms, some seven to ten kilograms, some nine or ten kilograms and others of the order of 15 to 20 kilograms) per hour, which work involved picking up each component and turning or twisting around to place it on a pallet or stillage behind him.

The evidence of the plaintiff's supervisor, Mr Smith

18 Mr Smith was the plaintiff's supervisor from 1988 until the plaintiff ceased work in 2005. He gave evidence concerning the operation of the 5A line and the various weights of the components that came off that line. In summary, he described a hood outer as weighing nine kilograms; a roof panel as weighing 11 kilograms; a fender less than four kilograms; a luggage outer, seven or eight kilograms; a luggage inner, four kilograms; front doors, six or seven kilograms; rear doors, six kilograms; and front floors, 11 kilograms. He said the roof panels required two people to lift; the fenders and luggage outers were two person jobs with workers alternating each lift; and the luggage inners, front doors, rear doors and front floors were one person jobs.

19 Mr Smith gave evidence that the afternoon shift commenced at 4.30pm. There was a 12 minute break between 6.30pm and 6.42pm, a half hour break between 9.00pm and 9.30pm and a ten minute break between 11.30pm and 11.40pm. The shift ceased at 12.56pm unless there was overtime. If there was overtime, there was a ten minute break at 1.00am. Overtime might continue to 3.00am or 4.00am or 5.00am.[9] If overtime was worked to 5.00am, there would be another break at 4.00am. Otherwise, there was no break after 1.10am. Mr Smith described overtime being available at the end of each shift four days a week. He also said that the plaintiff liked, and was very compliant in terms of undertaking, overtime. He agreed that the plaintiff was a very good worker.

20 As to stoppages, Mr Smith gave evidence that the line stopped many times. Reasons for stoppages included quality problems, machine failures and dye problems. When asked whether the line would ever run for an hour without breaking down, Mr Smith said "No".

21 Mr Smith gave evidence about a risk assessment performed in relation to the 5A line.[10] The risk assessment was performed on 9 October 2001. The risk assessment identified hazardous manual handling involved in the 5A line and rated this risk as high.[11] With respect to the task which had been assessed as involving hazardous manual handling, the following statements were ticked as applicable: "Repetitive or sustained application of force"; "Repetitive or sustained awkward posture"; "Handling loads that are unstable, unbalanced and difficult to move"; "Repetitive or sustained movement"; and "Application of high force". In relation to this hazardous manual handling, under the heading "hazard identified",[12] the following was recorded:

"1. Repetitive lifting of panel (sic), twisting.

2. Panel stock up (sic) to each other, line has been speed (sic) up."[13]

22 Under that part of the risk assessment headed "Eliminate/minimise any task involving hazardous manual handling", the suggested "controls" or "countermeasures" were:

"1. Rotation, communicate with other worker.

2. Stop the line, communicate with other worker."

23 Mr Smith was asked whether anything was done after the risk assessment was carried out. He said "Nothing was done - only rotation of team members". When asked what he meant by "rotation", he said "From stacking to checking to stacking to checking". Mr Smith said it was recommended that rotation occur on an hourly basis and team members and the team leader on the line were spoken to about this.

24 When asked whether there was any problem in implementing the rotation system, Mr Smith said:

"There's a problem because that line of inefficiencies is stop/start, stop/start, so people wouldn't know when they'd stacked enough for an hour, wouldn't stack enough for an hour. So there would be times when they actually wouldn't rotate."

25 Immediately after this answer (and contrary to an answer given earlier), Mr Smith was asked and answered the following question:

"Were there times when it [the line] ran for an hour without stopping?

---Maybe, maybe, yes."

26 In cross-examination, Mr Smith agreed that there would be some days when the line would produce at least 300 parts per hour. Production sheets and summaries tendered[14] showed that there were periods during shifts when production was occurring at rates in excess of 300 per hour. The summary of production sheets[15] showed that rates (during the period covered by those sheets) varied from periods where there was no production[16] up to a rate of 425 per hour.[17] Mr Smith agreed that there were times when the plaintiff did all of the stacking. This appeared to be because one of the plaintiff's team members did not do stacking work.[18] Mr Smith described rotation as being "team orientated". Essentially, it appears that it was left to the workers to rotate duties amongst themselves, rather than enforce a system of rotation on them.

27 Ultimately, Mr Smith agreed that stacking was a recognised hazard. It was recognised as a high risk hazard and the solution devised to deal with it was rotation, the timing and extent of which was left to the various teams and team leaders.

Findings in relation to the nature and extent of the plaintiff's work

28 The evidence discloses that the work of stacking was very repetitive. It involved repeatedly lifting items weighing up to 11 kilograms. For many items, the person performing the stacking work was required to turn or twist through approximately 180 degrees to place the item on a pallet or stillage that was behind them when they faced the item coming off the line.

29 The work was, as recognised by the defendant in its risk assessment, high risk so far as the performance of hazardous manual handling. Notwithstanding the fact that the line would often stop for many and various reasons, the task was (again, as identified in the risk assessment) hazardous.[19]

30 In reaching these conclusions, I should say for the sake of completeness, that I was not assisted by the evidence of Mr Dohrman or Mr Anstee.[20] The utility (if not the admissibility) of much of their evidence could be debated. Mr Dohrman's evidence has already been the subject of some criticism by J. Forrest J in the jury trial.[21] It is not necessary to set out those criticisms here. One could also make criticism in respect of Mr Anstee's evidence.[22] However, again it is not necessary to set out such criticism here. In short, the evidence of Mr Dohrman and Mr Anstee appears to me to be little more than what was described by Dixon CJ in Clark v Ryan[23] as using a witness to argue a party's case and present it more vividly and cogently before the Court.[24]

31 Whilst the defendant made various submissions concerning the credit of the plaintiff and his reliability as a witness (to which I will come in more detail below), my findings in relation to the nature and extent of the plaintiff's work stem largely from the evidence given by Mr Smith and the documents that were tendered.[25] I accept the evidence of Mr Smith that notwithstanding the risk assessment, there was little rotation so far as the plaintiff was concerned - with one of the plaintiff's team members not undertaking stacking work, as an enforced rotation system would have required.

32 Significant reliance was placed by the defendant upon the production sheets, the summary of production and the agreed summary of machine/line breakdowns.[26] It was submitted that these documents showed a very different picture of the pace of the 5A line from that painted by the plaintiff. It was further submitted that these documents, in essence, showed that there was no negligence or breach of duty on the part of the defendant. This was said to be so because the documents show substantial breaks and stoppages on a regular basis.

33 On the other hand, the plaintiff highlighted the fact that the documents did not disclose many days when no significant downtime occurred.[27] Further, the plaintiff submitted that downtime of an hour or so was not necessarily significant in respect of a 10 or 12 hour shift.

34 The fallacy in the defendant's position is that the various documents tendered showing production rates, breakdowns and the like were (as was conceded during the defendant's final address on the re-trial) representative of the period to which this claim relates (October 1999 to mid-2005). It follows then that the risk assessment (the results of which I have described above) was compiled with what was then known to be the production rate, breaks and breakdowns of the line as identified in the documents tendered by the defendant. That is, notwithstanding the breakdowns, breaks and stoppages that occurred in relation to the operation of the 5A line, the stacking task was assessed as high risk so far as manual handling was concerned and requiring the implementation of the rotation system described by Mr Smith.

35 Before proceeding further, it is necessary to say something about the plaintiff as a witness. The defendant submits that the plaintiff is an unreliable witness who has not been completely frank, and that accordingly, I should not accept his evidence or his case. The defendant raises the following issues which it says go to the plaintiff's credit:

(a) First, the failure by the plaintiff to recollect and admit a knee complaint that led to an x-ray of his left knee in 1992.[28]

(b) Secondly, the plaintiff's failure to recall being told of osteoarthritis in his left knee in 1992, osteoarthritis in his neck in May 2003 and osteoarthritis in his right hip in December 2004.[29]

(c) Thirdly, the plaintiff's failure to recollect and give evidence about attending Ms Boecksteiner in 2003 complaining of two years' of pain in his left knee and receiving a cortisone injection.[30]

(d) Fourthly, denying (contrary to the defendant's medical centre records) attending the centre on 17 January 2005 wearing herbal plasters.[31]

(e) Fifthly, the evidence given by the plaintiff in cross-examination concerning looking after his grandson, which evidence included the following questions and answers:

"Do you ever take him out for a walk?---Yes, sometimes I walk out and then my grandson follows. But he's a very good boy.

Do you ever take him for a walk down the street?---Very seldom.

Do you ever take him for a walk down the street?---Yes.

Do you ever pick him up?---No, unless I walk pretty steady.

You never pick him up?---No.

Are you sure about that?---Yes, he's a very (indistinct) boy. I can hold his hand.

Yes but you never pick him up and is that because you're knee won't tolerate that?---My grandson walks very fast, you know. He never want anybody to pick him up.

So, you've never picked him up?---No.

But, in any event, you never mentioned to the jury that you sometimes go walking with your grandson, did you?---No, I didn't mention."[32]

(f) Sixthly, an initial failure by the plaintiff to identify his house in the DVD film[33] of him lifting his grandson outside his house.[34]

36 The plaintiff gave his evidence with the assistance of an interpreter. At times, the plaintiff gave evidence directly without the use of the interpreter. At other times, he gave evidence through the interpreter. It is clear that, notwithstanding the fact that the plaintiff has lived in Australia for more than 30 years, his English is not good. However, I formed the view that he endeavoured to give as much of his evidence as was possible in English. This included cross-examination. Notwithstanding the use of an interpreter, there were occasions when there were obvious misunderstandings between the plaintiff and the counsel who was then questioning him.

37 The defendant submitted to me that some of the plaintiff's answers were lies or attempts to mislead me. I do not accept this submission. Some of the plaintiff's answers may have been wrong. Some of his answers were even surprising. However, I did not ultimately form the view that he actively attempted to mislead me. In any event, even if I was to conclude that the plaintiff was untruthful in some particular respect, what was said by Kirby J in Whisprun Pty Ltd v Dixon[35] concerning lies and civil proceedings is apposite:

"[119] Lies and civil proceedings: Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.

[120] Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in the evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law."[36]

38 So far as the individual matters of credit relied upon by the defendant are concerned, some are clearly less significant than others. For example, it is not particularly surprising that the plaintiff may have forgotten that he had a knee complaint in 1992, or, indeed, an x-ray.[37] Of more concern is the plaintiff's denial of any knee injury before 17 January 2005, when it is clear that he had had symptoms in 2003 (and for some time) that had required Indocid and an injection.

39 The cross-examination that occurred in the re-trial about picking up the plaintiff's grandson is, in my view, not of great moment. The plaintiff's case was not that his knee injury prevented him from picking up his grandson. The issue of the grandson only assumed significance in the plaintiff's cross-examination on the re-trial. Even then, the plaintiff's evidence was that he did not pick up his grandson because his grandson walked very fast and did not want anybody to pick him up (rather than because of any left knee injury). For like reasons, the plaintiff's initial failure to recognise his house in the DVD film (a film of not particularly good quality) has not caused me to conclude that the plaintiff was untruthful.

40 The fact that, even with the benefit of an interpreter, there may have been misunderstandings in the plaintiff's evidence is borne out by a number of answers which were demonstrably wrong - without their being any suggestion that the plaintiff was prevaricating or being untruthful. For example, on one occasion the plaintiff was asked whether he was still in receipt of Workcover payments. Within the space of one answer, he said that he was and also that Workcover had stopped after two years.[38]

41 In the end, as the defendant submitted in final address, the plaintiff is "not particularly sophisticated". He was, as I have said, only educated to a primary school level. In the cross-examination on the re-trial, I thought he did his best to give an honest and accurate account of matters.

42 Much of the plaintiff's evidence concerning the nature and extent of his work can be accepted because it is corroborated by or consistent with the evidence of Mr Smith and the documentary evidence to which I have already referred. The position is less clear with respect to the development of the plaintiff's alleged injury and its consequences. In respect of these matters, one needs to look more closely at the inherent probabilities and whether the plaintiff's evidence is corroborated or supported by other evidence. That is not to say that I will reject any evidence of the plaintiff that is not otherwise supported: it is merely to say that such evidence needs to be examined closely.

43 Before leaving the issue of the nature and extent of the plaintiff's work, it is necessary to say something further about some evidence given by the plaintiff in-chief before the jury. As I have already set out, the plaintiff at one point said he spent 60% of his time stacking and 20% checking. The defendant places substantial reliance upon that part of the plaintiff's answer that he spent 60% of his time stacking.

44 The defendant submits that if the Court accepts that the plaintiff spent 60% of his time stacking, this does not constitute any negligence or breach of duty on the part of the defendant. Reliance is placed upon some evidence given by Mr Anstee. The defendant further submits that the plaintiff's attempt to explain why he should have said 80% in his evidence in the re-trial should not be accepted. Amongst other things, reliance is placed upon the matters said to go to the plaintiff's credit, to which I have already referred. Finally, it is submitted by the defendant that "the plaintiff's attempt to change from 60% to 80% made in the knowledge that this was an important point in the case, should not be accepted".[39]

45 The short answer to the defendant's submission is that I found the plaintiff's explanation of mathematical miscalculation to be a reasonable one. Further, the evidence appeared to me to be consistent with what was said by Mr Smith as to the lack of rotation so far as the plaintiff was concerned. Additionally, no evidence was led or sought to be led from Mr Smith to challenge this percentage (notwithstanding that the case was stood down at the conclusion of the plaintiff's evidence on the re-trial for the defendant to determine whether or not it would seek to call additional evidence).[40] In the circumstances, I infer that Mr Smith would not have been able to be of assistance to the defendant on this issue, and I am thus more fortified in accepting the plaintiff's explanation for his change from 60% to 80%.[41]

46 In any event, the issue in this case is not determined by examining mere percentages, the issue is whether there was adequate and proper rotation as contemplated by the risk assessment and described by Mr Smith (that is, rotation on an hourly basis).

47 The plaintiff gave evidence that he first noticed left knee symptoms when he was performing stacking work. He said "When I was doing the stacking job I felt some pain. Maybe I twisted, I don't know".[42] The plaintiff said he went straight away to the medical centre, where he was given ice and "maybe some Panadol". He gave evidence that he went back to work. This was said to have occurred at about 11.00pm or 12.00am on 17 January 2005.

48 The plaintiff then gave evidence that he later went to see Dr Cheung, where he was given a couple of weeks off work. Ultimately, the plaintiff went back to work and worked until 17 May 2005. The plaintiff gave evidence that he has not worked since that time because of pain.[43]

49 The plaintiff was asked by his own counsel in evidence-in-chief whether he remembered having an X-ray of his left knee in 1992. He said he could not remember, as it was too long ago. In cross-examination, the plaintiff said that he had never injured his left knee before 17 January 2005. However, consistently with the question asked in evidence-in-chief, the evidence discloses that the plaintiff had some problem with his left knee in October 1992. Further, an X-ray taken on 27 October 1992 was reported:

"Left knee

Osteoarthritic change involves the left knee joint, particularly the medial joint compartment. The patello-femoral articulation is involved. There is no evidence of recent bony injury."[44]

50 Additionally, in giving evidence that he had never injured his knee before 17 January 2005, the plaintiff appears to have overlooked the fact that he consulted his treating orthopaedic surgeon, Ms Boecksteiner, in August 2003, complaining of pain in his left knee. On that occasion, Ms Boecksteiner treated the plaintiff with a cortisone injection and "suspected that he may have a good response to this". It is, at least, curious that the plaintiff was unable to remember this injection. However, I do not accept that the plaintiff's evidence in respect of this matter was necessarily untruthful. In any event, such symptoms as the plaintiff had (either in 1992 or 2003) do not appear to have prevented the plaintiff from continuing to perform what the defendant's risk assessment described as high risk, hazardous manual handling.

51 The duty of care owed by an employer to an employee was recently described by the High Court in Czatyrko v Edith Cowan University.[45] The Court said:[46]

"An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."[47]

52 In McLean v Tedman,[48] Mason, Wilson, Brennan and Dawson JJ said:[49]

"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th edition (1983), pp 480-481 and in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

53 More generally, Mason J said in Wyong Shire Council v Shirt:[50]

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

54 As I have already stated, I was not assisted by the evidence of the ergonomists, Mr Dohrman and Mr Anstee. In my view, the underlying facts in this case were not so complex as to require the opinions of expert witnesses with qualifications and experience in the field of ergonomics.

55 The answer to the question of whether the defendant was negligent largely comes out of the evidence of Mr Smith and the risk assessment and production records which were tendered. When the risk assessment was conducted, those who conducted it recognised the high risk nature of the hazardous manual handling involved in the stacking work. In my view, they were right to do so. Further, the solution posited by them (rotation) was a reasonable one. The problem for the defendant is that the solution was not enforced. Mr Smith knew that the solution was not being enforced. For whatever reason, the defendant was prepared to let one member of the plaintiff's team perform the light inspection work only - with the plaintiff performing more of the heavy work than he should have performed had the rotation solution envisaged by the risk assessment report been enforced.[51]

56 In my view, it was not reasonable for the employer to allow employees to determine rotations if the different tasks were not rotated in the way suggested following the performance of the risk assessment. It was the duty of the defendant to take reasonable care to ensure that employees like the plaintiff were not overworked in an activity which had been assessed as "high risk". Further, it was the duty of the defendant to take reasonable care to enforce the rotation system devised by it following the performance of the risk assessment.[52]

57 It follows that in failing to enforce the system of rotation described by Mr Smith (and in the knowledge, through Mr Smith, that the rotation system was not being implemented), the defendant breached the duty of care it owed the plaintiff. For like reasons, the plaintiff has also established a breach of regulation 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999.[53] That is, the plaintiff has established that the defendant did not ensure that the risk of a musculoskeletal disorder[54] affecting an employee occurring was either eliminated or reduced so far as is practicable - which reduction would have been achieved by the enforcement of the hourly rotation system referred to by Mr Smith in his evidence.

58 I should refer, for the sake of completeness, to the defendant's statement in its outline of submissions[55] that "The central issue in this case is whether or not the plaintiff suffered foreseeable injury as a result of the defendant's failure to rotate his duties from stacking". Whilst the question of foreseeability may be relevant at more than one stage of the analysis in a negligence claim, in this case the defendant submitted that the absence of foreseeability told against the plaintiff on the question of breach of duty.[56] However, the conclusions of the risk assessment lead to a finding against the defendant on this issue.[57] Further, the defendant's submissions[58] that "Mr King, on behalf of the plaintiff, said that the job would have been perfectly acceptable for him if he did not have the abnormalities in this knee" (a matter about which I will deal with in greater detail below) and that Mr Shimmin did not think that the plaintiff's knee condition "was necessarily injury or accident-related" are not to the point on the issue of breach. Similarly, as was correctly conceded by the defendant, the fact that there may never have been another knee injury on the 5A line, whilst being relevant, is not determinative. The question is whether there was a relevant foreseeable risk of physical injury as a result of performing the stacking work on the 5A line.[59] The answer to that question is "yes".[60]

59 A number of witnesses gave evidence on the issue of causation. These included the plaintiff's treating orthopaedic surgeon, Ms Boecksteiner. In evidence-in-chief, the plaintiff's job with the defendant was described to Ms Boecksteiner.[61] Asked about causation, Ms Boecksteiner said:

"Well, he's certainly deteriorated over that time [1999 to early 2005] and the only force on his knee of any significance is what he was doing at work. So yes, it's very probable it [the plaintiff's work with the defendant] is a large contributing force".[62]

60 Ms Boecksteiner was cross-examined about her opinion on causation. She was cross-examined about (amongst other things) osteoarthritis and the 1992 and 2003 knee presentations. However, she did not change her view as expressed in examination-in-chief.[63]

61 Extracts of medical reports from the plaintiff's general practitioner, Dr Cheung, were read into evidence. On the issue of causation, the substance of Dr Cheung's opinion was that the work performed by the plaintiff for the defendant was a cause of injury to the plaintiff's left knee.

62 On 14 July 2005, Mr Andrew Shimmin performed a left knee arthroscopy on the plaintiff. During this procedure, Mr Shimmin removed chondral loose bodies and debrided some degenerative articular surface on the medial side of the tibial plateau. As to causation, Mr Shimmin expressed the view that the plaintiff's degenerate articular cartilage disease was caused by "a combination of genetic make-up of the articular cartilage and the mechanics of his lower limb and any sport or occupational activities that he has done over the years". He also expressed the view that he did not think it was "necessarily injury or accident-related but due to the natural history of the abovementioned factors". I take the "abovementioned factors" to include the "occupational activities" referred to by Mr Shimmin.

63 In evidence-in-chief, Mr Kevin King (a consultant orthopaedic surgeon) said:

"Although the osteoarthritis of his left knee was not caused by any particular incident, it's a reasonable assumption that his work aggravated the condition and it's a reasonable assumption that if he had not been doing such a busy active job, on his feet all the time and constantly lifting, he might well never have developed significant symptoms before he reached retirement age".[64]

64 However, a little further on in his evidence,[65] Mr King said:

"The car production line over many years has been rigidly and admirably controlled. This man was doing a busy, active, quite heavy job, but it would have been rigidly controlled and I've assumed that in my history. What he was doing was - it's not the sort of work that would cause problems to someone with normal knees. But on the other hand it's a busy active job and if you have abnormal knees then that's a different matter and therefore that's why I've given my opinion accordingly."

65 When one has regard to the risk assessment and the failure to enforce the rotation system described by Mr Smith, one might debate whether Mr King was correct to say that the plaintiff's job was "rigidly controlled". However, in cross-examination, Mr King said:[66]

"It's a reasonable argument to put that this work that he was doing superimposed upon an abnormal knee, it was a precipitating factor in producing symptoms which it could be reasonably argued would not have occurred before he'd reached retirement age if he had not been doing that work. Now, that is what I believe".

66 The defendant had the plaintiff medically examined as follows:

(a) Dr David Ho, an occupational health consultant, in June 2005, December 2005 and February 2006;

(b) Mr Michael Polke, an orthopaedic surgeon, in March 2006;

(c) Dr Phillip Mutton, an orthopaedic physician, in June 2007; and

(d) Mr Clive Jones, an orthopaedic surgeon, in March 2008 and June 2009.

67 None of these witnesses were called. Instead, the defendant called Mr Anthony Dunin. Mr Dunin is an orthopaedic surgeon. He did not examine the plaintiff. However, prior to trial he was asked to prepare a report in relation to the plaintiff. For the purposes of his report (and for the purpose of giving evidence), Mr Dunin was provided with various clinical records, reports and radiology. Mr Dunin gave the following answer to the following question:

"What is the nature of the aggravation sustained as a result of employment between October 1999 and April 2005?---I note that there's been no mention of any specific injury to Mr Lee from the description of his work. It does not appear that there was any heavy lifting or repetitive squatting involved. I therefore considered any aggravation such as some minor twisting, would have caused a minor temporary aggravation of his underlying knee condition. I therefore consider that his employment probably has not changed the natural history of the [left knee] condition."

68 Essentially, all of the medical experts whose opinions were tendered (apart from Mr Dunin) accepted that there was a causal link between the plaintiff's work and his left knee condition. Mr Dunin's opinion appears to be premised on the proposition that if there was no heavy lifting or repetitive squatting, then the plaintiff cannot have sustained injury. The reason for this premise is not explained. As a matter of logic and experience, it cannot be sustained.

69 In my view, the evidence discloses that, had there been appropriate rotation as described by Mr Smith, it is likely that the plaintiff would not have developed such significant symptoms in his left knee before normal retiring age.[67] On the issue of causation, I am prepared to infer that the evidence of the defendant's medical specialists (Dr Ho, Mr Polke, Dr Mutton and Mr Jones) would not have assisted the defendant; and in this regard I more readily accept the evidence of the plaintiff's witnesses on the issue of causation.[68] In the circumstances, it is not necessary to place reliance upon either the admission of liability in respect of the plaintiff's claim for benefits under the Accident Compensation Act made by the defendant's privy, Cambridge Integrated Services Victoria Pty Ltd,[69] or the certificate of opinion of the medical panel dated 15 September 2006 in which the medical panel concluded, in respect of the plaintiff's left knee injury:

"In the panel's opinion, the worker is suffering from an aggravation of osteoarthritis of the left knee, relevant to the claimed left knee injury.

...

In the panel's opinion, the worker's current medical condition is still materially contributed to by the claimed left knee injury.

...

In the panel's opinion, the worker's incapacity for work is still materially contributed to by the claimed left knee injury."[70]

70 It follows that, for the reasons I have just expressed, the negligence of the defendant in failing to enforce the system of rotation described by Mr Smith, and the concomitant breach of statutory duty, was a cause of what Mr King described as the "significant symptoms" that would otherwise not have manifested themselves until after normal retiring age. I turn now to consider the issue of contributory negligence.

Contributory negligence: principles to be applied

71 The principles relevant to a finding of contributory negligence have been set out recently by the Court of Appeal in the decisions of Mayhew v Lewington's Transport Pty Ltd[71] and Fassbender v Bohlmann.[72] They do not need to be repeated here. As has been repeatedly said,[73] the issue of contributory negligence has to be approached on the footing that the employer has failed to discharge its obligations to take reasonable care, and in considering whether there is contributory negligence on the part of a worker, the circumstances and conditions in which he or she had to do his or her work have to be taken into account.

72 Mr Smith gave evidence that the issue of rotation was discussed with the employees who worked on line 5A. I accept this evidence. Further, the plaintiff was asked and answered the following questions:[74]

"Did Bruce [Mr Smith] ever say to you or to other people on the line anything about rotation?---My Bruce say, but people no follow. Bruce leaving up to the member doing the top.

What about the leading hand, did he ever do anything about it?---He don't care to. It's like production. He only like production, he don't care who is stacking, who checking.

It's probably obvious but is the stacking harder than checking?---Of course, because stacking every panel you must pick up, never stop. The checking is standing for look defect.

Did you ever ask Bruce or the leading hand to have your duties rotated so you could be a checker rather than a stacker?---I didn't ask for like that because the rule every hour change. But depended the member working, he no understand do stacking. I must do the job. I'm permanent for long times for only stack."

73 It is clear from the evidence that the plaintiff was aware of the rotation system. It is less clear whether the plaintiff failed to rotate from stacking duties because he had a preference for stacking or because other employees could not or would not rotate as contemplated by the system. However, having regard to the evidence of Mr Smith, I accept that had the plaintiff requested that the rotation system be enforced, then the defendant would have enforced the system.

74 Further, I find that the plaintiff knew that he had a not insignificant left knee problem in 2003 which required referral to an orthopaedic surgeon and an injection. Additionally, the history given to Ms Boecksteiner at that time of pain on and off for two years which responded to Indocid suggests the plaintiff had known for up to two years at that time of his knee problem. In the circumstances, it seems likely that the plaintiff would (as he subsequently did in 2005) have attributed his knee problems in 2003 (if not in the two years leading up to consulting Ms Boecksteiner for the first time), at least in part, to the performance of excessive stacking work.

75 In the result, I am satisfied that there was contributory negligence on the part of the plaintiff in failing to advise the defendant of his symptoms and seeking rotation. Further, consistently with my finding of causation with respect to negligence, I also conclude that the plaintiff's contributory negligence was a cause of the development of his left knee symptoms and condition as described by Mr King. I turn now to consider quantum.

76 In determining the extent to which damages awarded should be reduced for contributory negligence, it is necessary to compare the culpability of the plaintiff with the culpability of the defendant, and to take account of the importance of each party's own negligence in causing the loss.[75] Having regard to these matters, I consider that it is just and equitable that the plaintiff's damages should be reduced by 25% having regard to his responsibility for the loss he sustained.[76]

77 As at May 2005, the plaintiff's left knee condition was such that it had already required treatment (Indocid and an injection) in 2003. There had been symptoms for a period of the order of two years when the plaintiff first saw Ms Boecksteiner in 2003. Whilst his symptoms and condition do not appear to have prevented him from working prior to January 2005, the defendant's medical records[77] disclose that as at 17 January 2005, the plaintiff had sufficient symptoms requiring the application of "herbal plasters".

78 On 14 July 2005, Mr Shimmin performed a left knee arthroscopy. During the course of this procedure, Mr Shimmin removed chondral loose bodies and debrided some degenerate articular surface on the medial side of the tibial plateau. In summary, Mr Shimmin found that the plaintiff had significant medial compartment degeneration. Following this operation, the plaintiff has not engaged in employment.

79 On 5 December 2006, Ms Boecksteiner performed a left knee replacement. Following the operation, the plaintiff had some chest pain. There was a suggestion that this may have been "a gastric thing". [78] Physiotherapy was performed. The more vigorous physiotherapy that had been planned was delayed "for a couple of days" because of the plaintiff's chest pain. As a result, the plaintiff developed some stiffness - which ultimately necessitated going back to surgery for a manipulation under anaesthetic some six to eight weeks later.

80 Following his surgery, the plaintiff has continued to have problems with his left knee. The problems have included both restriction of movement and pain. Further, the plaintiff gave evidence that he has not been able to resume employment.

81 The opinion of Dr Cheung, tendered at trial, was that the plaintiff had been and would remain unfit for his pre-injury duties. Mr King, who examined the plaintiff on 2 June 2010, concluded that the plaintiff was permanently unfit to return to any form of manual work in the foreseeable future because of his continuing left knee problem. Essentially, this issue was not disputed by the defendant at trial. The defendant's case on quantum at trial was that the plaintiff was now in the situation he would have been in any event, and absent any work involvement. Further, if the work was as heavy as the plaintiff asserted, then, the likelihood of him working until he was 67 (as claimed by him) was slight.

82 I turn now to consider the plaintiff's claims for pecuniary loss damages and pain and suffering damages.[79]

83 At trial, the parties tendered a document setting out agreed figures in respect of the plaintiff's pecuniary loss damages claim. The figures were calculated on the basis that the plaintiff (but for his injury) would have worked until 67 years of age. Further, the agreed figures did not contain any allowance for vicissitudes. The agreed figures were:

84 Whilst the plaintiff had an excellent work history with the defendant, having worked for it for 27 years, and whilst the plaintiff gave evidence that he would have worked until the age of 67, in my view, it is more likely that, but for his injuries, the plaintiff would only have worked until the age of 65. I did not find that plaintiff's evidence on this issue to be convincing. Further, and in any event, there is, in my view, force in the defendant's argument that, given the heaviness of the plaintiff's work as described by him, it is more likely than not that the plaintiff would have ceased work at age 65.

85 In calculating the plaintiff's loss of earnings and/or loss of earning capacity, there are both negative and positive vicissitudes. It is possible that the plaintiff may have ceased work prior to turning 65 in any event. Equally, the possibility of the plaintiff working beyond the age of 65 cannot be entirely disregarded. In my view, the appropriate assessment in respect of loss of earnings and loss of earning capacity is an assessment until the age of 65. Further, it seems to me that the positive and negative vicissitudes are of equal magnitude. It is therefore appropriate to calculate the plaintiff's loss of earnings to age 65 without any discount for vicissitudes.

86 During final addresses, I was informed by the parties that the agreed past loss of wages figure was arrived at by allowing $998 net per week from the date the plaintiff turned 65 (21 April 2010) to the date of the document (30 September 2010). Additionally, I was informed that if I reduced the past loss of wages figures, then the past loss of superannuation figure should be reduced by the same percentage. However, the Fox v Wood component would remain unaltered; and, of course, no allowance would be made for future loss of income and future loss of superannuation if I formed the view that the plaintiff would have ceased work at age 65.

87 As I have concluded that the plaintiff would have ceased work at age 65 in any event, the plaintiff's claim for pecuniary loss damages assesses as follows:

- past loss of superannuation $ 25,722[82]

Adding these figures together, one arrives at a total assessment for pecuniary loss damages of $301,516.

88 The plaintiff's injury has involved significant pain. He has had to undergo a total knee replacement. His injury and its consequences have significantly reduced the plaintiff's ability to engage in a variety of activities, as well as prevented the continuance of his employment. The plaintiff still has pain and restriction of movement. It is likely that this will continue.

89 Whilst the plaintiff's claim included a claim for damages for a psychological/psychiatric injury and gastrointestinal upset, little (if any) evidence was called in respect of these matters.[83] Fundamentally, the assessment of damages in this case falls to be approached by reference to the plaintiff's left knee condition.

90 The plaintiff submitted that an appropriate allowance for pain and suffering damages was $200,000. The defendant submitted that the range was $80,000 to $100,000. In my view, the appropriate allowance is $150,000.

91 For the reasons given above, the plaintiff has established that he suffered injury in the course of his employment with the defendant as a result of performing work on the 5A line between October 1999 and mid 2005. A cause of this injury was the negligence of the defendant and a breach by the defendant of regulation 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999. However, the defendant has established that there was contributory negligence on the part of the plaintiff, which contributory negligence I have assessed at 25%. The plaintiff's damages (unreduced for contributory negligence and for any reductions required by s 134AB(25) of the Accident Compensation Act ) assess as follows:

92 I will hear counsel as to the appropriate form of orders, interest and costs.

[1] Paragraph 3 of the plaintiff's amended statement of claim.

[2] Li v Toyota (Ruling No. 3) [2010] VSC 448.

[7] Logically, if the plaintiff spent 20% of his time checking, then 80% of his time must have been spent stacking (unless the proper construction of the plaintiff's evidence is that he spent 60% of the time stacking, 20% checking and 20% either down time or doing something else).

[9] At another part of his evidence, he described finishing overtime at 2.56am or 3.56am and overtime commencing at 1.10am.

[10] Cf regulations 12, 13 and 14 of the Occupational Health and Safety (Manual Handling) Regulations 1999.

[11] A risk score of 20 was recorded. A score of 20 or above designates the risk as high.

[13] Both of these hazards had a risk score of 20 (high) recorded in respect of them.

[16] The lowest actual specified rate being 47 per hour.

[17] For a 45 minute period on 4 November 2004.

[19] See also the evidence of Mr Smith at T510 of the jury trial.

[20] Either in terms of their purported descriptions of the plaintiff's work, or more generally.

[21] Li v Toyota (Ruling No. 1) [2010] VSC 459.

[22] For example, what appears to be an initial failure to comply with rule 44.03 and/or the expert witness code of conduct in Form 44A (as to which see Commonwealth Development Bank of Australia v Cassegrain [2002] NSWSC 980 and Investmentsource v Knox Street Apartments [2007] NSWSC 1128).

[23] [1960] HCA 42; (1960) 103 CLR 486.

[25] Specifically, Exhibits P1, D2, D3, D4, D5 and D7 (photographs of the workplace and production line parts, the risk assessment, production sheets and a summary of production).

[28] See paras 19(a) - (e) and (g) - (i) of the defendant's outline of submissions dated 6 October 2010.

[32] T37.17-31 of the re-trial. Defendant's outline of submissions, para 19(m) and (o).

[35] [2003] HCA 48; (2003) 77 ALJR 1598 at 1619 [119]- [120].

[37] The plaintiff's suggestion that it might have been a lung x-ray is not capable of explanation on the evidence produced in this case.

[39] Defendant's outline of submissions dated 6 October 2010, para 20.

[41] The defendant had its own O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 submissions concerning the failure by the plaintiff to call former fellow employees (some of whom were identified in evidence, for example Mark Avila, Gail McDaniels and J Garcia). For the sake of completeness, I should say that I do not accept this submission. There is, at least, an issue as to whose camp these witnesses might properly be regarded as being in. Further, see generally O'Meara v Dominican Fathers [2003] ACTCA 24; (2004) 153 ACTR 1, 17 [69] (per Gyles and Weinberg JJ).

[44] See also Exhibit P2 (the defendant's medical records relating to the plaintiff's attendances - and specifically, the attendances in October 1992).

[45] [2005] HCA 14; (2005) 79 ALJR 839.

[48] [1984] HCA 60; (1984) 155 CLR 306.

[50] [1980] HCA 12; (1980) 146 CLR 40, 47-48.

[51] See generally the evidence of Mr Smith, to which I have already referred.

[52] Cf McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 (per Mason, Wilson, Brennan and Dawson JJ).

[53] Noting that the word "risk" in regulation 15 is defined by regulation 5 to mean "the likelihood of an injury, illness or disease occurring due to exposure to a hazard" and that the "likelihood" in question is "a real or not remote chance or possibility, regardless of whether it is less or more than 50%": Martin v Hendersons Industries Pty Ltd [2004] VSCA 19, [45].

[55] Dated 6 October 2010, at paragraph 2.

[56] T65.24 - .28 of the re-trial. See also T66.29 - 67.6 of the re-trial.

[57] See also the evidence of Mr Smith.

[58] Defendant's outline of submissions dated 6 October 2010, paragraph 21.

[59] See generally Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383, 390 (per Barwick CJ):

"But the rarity of such an injury in the circumstances does not in my opinion deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established."

See also Bradford v Robinson Rentals Limited [1967] 1 All ER 267.

[60] See, amongst other things, the performance and results of the risk assessment and the evidence of Mr Smith.

[61] T254-256 of the jury trial, and by reference to the photographs in Exhibit P1.

[68] Cf O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916.

[69] Which admission appears from the foot of Exhibit P8 to have been made "for and on behalf of the Victorian WorkCover Authority".

[70] Remembering that the "claimed left knee injury" is the left knee injury in respect of which "liability is accepted" (see Exhibit P8).

[71] [2010] VSCA 202.

[72] [2010] VSCA 204.

[73] See for example Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 493.

[75] Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494.

[76] Cf s 26(1)(b) of the Wrongs Act 1958.

[79] Within the meaning of s 134AB(37) of the Accident Compensation Act.

[80] Cf Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

[81] Reducing the agreed figure of $282,159 by the total of $998 per week multiplied by 23 weeks.

[82] Reducing the agreed past loss of superannuation figure of $28,000 by the same percentage reduction made for the past loss of wages.

[83] Cf the evidence of Ms Boecksteiner of chest pain, which upon investigation was determined to be "a gastric thing": T244.23 of the jury trial.