DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT –
MEASURE OF DAMAGES – PERSONAL INJURIES –
LOSS OF EARNINGS AND
EARNING CAPACITY – where the plaintiff’s injury was an aggravation
Source
Original judgment source is linked above.
Catchwords
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT –MEASURE OF DAMAGES – PERSONAL INJURIES –LOSS OF EARNINGS ANDEARNING CAPACITY – where the plaintiff’s injury was an aggravationof pre-existing condition –damages for loss of future earning capacityassessed on the basis that plaintiff is unemployable in formercapacityEMPLOYMENT LAW – LIABILITY FOR EMPLOYER FOR INJURY TO EMPLOYEEAT COMMON LAW – SAFE AND ADEQUATE PLANT AND APPLIANCES– where theplaintiff was required to use a carcass saw – where the plaintiff suffereda spinal injury in using the saw– whether the plaintiff suffered injuryas a result of the employer’s negligence, breach of contract or breach ofstatutorydutyWorkplace Health and Safety Act 1995 (Qld), s26, s27,s28, s37.Calvert v Mayne Nickless Ltd (No. 1) [2005] QCA 263
followed
Driver v Stewart & MMI [2001] QCA 444
followed
Heggarty v Queensland Ambulance Service [2007] QCA 366
followed
Hopkins v WorkCover Queensland [2003] QSC 257
applied
Hopkins v WorkCover Queensland [2004] QCA 155
followed
Purkess v Crittenden [1965] HCA 34
(1965) 114 CLR 164
followed
Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2)
[2000] QCA 18
[2001] 1 Qd R 518 applied
Vozza v Tooth & Co Ltd [1964] HCA 29
(1964) 112 CLR
316 followed
Wyong Shire Council v Shirt [1980] HCA 12
(1980) 146 CLR 40
followed
Judgment (126 paragraphs)
[1]
[1] MCMEEKIN J: In this action the plaintiff, Mr Wright, claims damages for personal injuries alleged to have been suffered in the course of his employment with the defendant, Thomas Borthwick & Sons (Australia) Pty Ltd. At the material time the plaintiff was employed as an A grade slaughterman working the carcass saw at the Baker's Creek Meatworks near Mackay. Both liability and quantum are in issue.
[2]
[2] Mr Wright bases his claim on breach of the employment contract, negligence and breach of statutory duty, that latter duty being imposed by s 28 of the Workplace Health and Safety Act 1995 whereby an employer is obliged to ensure the health and safety at work of its employees. A civil right of action is available to employees for a breach of those provisions by an employer: Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2)[1].
[3]
To succeed in relation to the causes of action in negligence and breach of contract the plaintiff must establish:
[4]
(a) That the tasks involved a foreseeable risk of injury;
[5]
(b) That there were reasonably practical means of obviating that risk;
[6]
(c) That the plaintiff's injury belonged to the class of injury to which the risk exposed him;
[7]
(d) That the employer's failure to eliminate the risk showed a want of reasonable care for the plaintiff's safety.[2]
[8]
[4] The breach of statutory duty case involves different considerations. Firstly it is necessary that the plaintiff establish that the risk of injury involved in the work is not a trivial risk.[3] Then he must prove that the injury he complains of has been caused by exposure to that risk of injury[4]. That having been established the onus then passes to the employer to show the matters of defence referred to in s 26, 27 and 37 of the Workplace Health and Safety Act.[5]
[9]
[5] The method of operation of the carcass saw by the operator is as follows: the operator is located on a stand which moves in the vertical plane. Adjacent to the stand is a sterilising unit. The saw is placed in the sterilising unit. The operator moves the stand to its maximum height. A carcass comes along the chain from the operator's right. The operator retrieves the carcass saw from the steriliser, raises the carcass saw at an angle so that the saw is positioned above the carcass preparatory to cutting the carcass into two halves, commences the operation of the saw, and then cuts down through the carcass lowering the stand with a foot pedal as he goes. At the same time the operator moves to his left to keep pace with the carcass as it moves with the chain.
[10]
[6] The carcass saw weighs approximately 89 kilograms. It is connected to a counterbalance. The counterbalance can be adjusted so that the operator bears a varying weight through the course of travel of the carcass saw. There was debate between the parties as to the extent of the weight that could come on to the operator. That appears to be the crucial issue. I will deal with that later.
[11]
[7] The work that Mr Wright was called on to perform was not restricted to the lifting of a carcass saw on one occasion. On the shift that he customarily worked it was necessary for the operator to saw up to 360 beasts through the shift.
[12]
[8] The plaintiff alleges that on 9 June 2006 he suffered an injury to his lumbo-sacral spine, an aggravation of pre-existing degenerative changes in that area, and an "aggravation of his right sacroiliac joint" when operating the carcass saw at the defendant's meatworks.
[13]
[9] Mr Wright gave evidence that he experienced back pain, with pain running into his right leg[6], as he moved the carcass saw from the sterilising unit and just as he reached "the H bone of the swing around" i.e. at the point above the tail bone where the operator starts the cut of the body.[7] He described the pain in his back as a sharp shooting pain.[8]
[14]
Mr Wright was not challenged in his assertion that he had an onset of pain at this time. The evidence of his supervisor Mr Borchardt and the incident report completed on the evening[9] tended to confirm his claim.
[15]
[11] The plaintiff contended that it was necessary to twist and arch the back when carrying out the manoeuvring of the saw. The defendant claimed that there was no necessity to either twist or arch the back and such movements were not in fact involved.[10] As a result, the parties concentrated in their evidence on the precise movements involved in that process of transferring the saw from the sterilising unit to the point above the H bone.
[16]
[12] The resolution of this dispute becomes relevant only if I reject the defendant's basic contention that the forces involved in the lifting of the saw did not exceed 6.5 kilograms. The two ergonomic experts called in the case - Mr Kahler and Dr Olsen - were agreed that if the forces were no greater than 6.5 kilograms then the introduction of a twisting movement made only a minimal difference and the forces involved fell well below those likely to injure.[11]
[17]
[13] The significance of this debate was explained by Mr Kahler as being that twisting involved "a strain or defamation of soft tissue in the vertebral column"[12] thereby rendering the spine more vulnerable to injury when under load. Dr Cook, an orthopaedic surgeon, expressed a similar view.[13] As I understood the debate this opinion as to the consequences of twisting the back was not contentious.
[18]
[14] The plaintiff, Mr Wright, described the usual manoeuvre that he followed and that he believes he undertook on the evening in question in some detail[14]. Mr Wright explained that he placed the base of the saw in his right hip area, that his right leg was "sort of ... a pivot point", and that as he brought his left leg around he twisted his body and arched his back bringing the tip of the saw up to an angle of about 65 degrees.[15]
[19]
[15] As to whether there was the potential to twist the back it appears to me that several pieces of evidence support the plaintiff.
[20]
[16] Firstly, there is nothing inherently improbable in the plaintiff's claim that he twisted his back in carrying out the manoeuvre and if anything quite to the contrary. I should record that to my observation the plaintiff gave his evidence in a forthright manner and I was impressed with him.
[21]
[17] Secondly, the plaintiff was supported by the evidence of Messrs Reiman and Marshall who were apparently independent of him. Mr Reiman operated the carcass saw prior to the time that Mr Wright did and he was emphatic in his description of the movements involved in the work as requiring the twisting of the upper body. He said:
[22]
"You lean and twist before you actually move anything else. Once you get the saw moving, then you can move your feet round behind it, but you've got to get it to start moving around to your left towards the body before you can actually move your feet."[16]
[23]
[18] Mr Marshall had previously worked as a slaughter floor superintendent for the defendant at Baker's Creek, had observed the carcass saw being operated on a daily basis and had regularly relieved the saw man. He thought that "it was difficult to move your feet so you just turned your torso, sat the saw and brought your feet around after."[17]
[24]
Thirdly I was impressed with Mr Kahler's "least time, least energy" analysis[18] as simply common sense. That is, without a "strongly supervised and trained environment", workers will tend to take the shortcut and twist rather than move their feet and entire torso. Especially would this be so where one is required to repeat an action hundreds of times throughout a working shift.
[25]
As to the environment at this workplace I note there appeared to be limited training and supervision in relation to this aspect of the task. Mr Reiman said in response to a question concerning the training that he received in the lifting of the saw:
[26]
"Well I was never actually trained to lift anything. They just said 'get it up there'. That was my training."[19]
[27]
[21] Mr Wright says that he was not told in the course of his training that he should not twist his spine or and indeed that he observed his trainer, a Mr Reynolds, do precisely that.[20] This evidence was not challenged. Mr Marshall's observations too confirm that workers were not trained or supervised in respect of their movements.
[28]
[22] Thus I am satisfied that there was potential for twisting of the spine and it was probable that such movements occurred in the carrying out of the subject work.
[29]
[23] The employer's case was that the weight that the plaintiff had to bear did not exceed 6.5kgs and therefore submitted that:
[30]
(a) There was no foreseeable risk of injury given the procedures that the defendant had in place;
[31]
(b) It had done all that was practicable to minimise the risk of injury of the handling of the carcass saw or, to adopt the wording in s 37(1) of the Workplace Health and Safety Act, that it had taken reasonable precautions and exercised proper diligence to ensure that its obligation was discharged;
[32]
(c) That it was unreasonable to expect any more of the defendant given the minimal nature of the risk involved.
[33]
[24] The true issue, and the principal question to be decided, was whether the forces involved in the lifting of the carcass saw involved more than a trivial risk of injury to the spine of an operator or alternatively a foreseeable risk of such injury.
[34]
[25] One does not need the expertise of Mr Kahler or Dr Olsen to recognise that there is a significant risk of personal injury, and injury to the lumbar spine, in requiring an employee to lift an 89 kilogram weight on hundreds of occasions throughout a shift, especially when there is the potential for twisting the back through the process.
[35]
[26] The employer does not say there is no danger involved in the work. So much is evident from the defendant's Safe Work Instruction relevant to the task.[21] Rather the defendant contends that that danger was met by the engineering and administrative controls that the employer put in place such that the weight to which the worker was exposed was no more than 6.5kgs. The experts were agreed that if the forces did not exceed 6.5 kgs then the plaintiff was not exposed to any significant risk of injury.[22] In that case the defendant has discharged its duty - whether statutory or under the general law.
[36]
Whilst Dr Olsen's views were not entirely clear, the experts seem to me to be agreed that if the weight that the plaintiff was dealing with was in the order of 15kgs or above[23] then there was a risk of injury which called for a response.[24] There is certainly a risk of injury which is both more than trivial and foreseeable in the relevant sense.
[37]
I am conscious of Dr Olsen's response[25] to a question from myself that lifting 15 kgs hundreds of times a shift would be considered normal work and the thrust of his report that a safe range is 20 to 27kgs.[26] I observe several matters: What is normal[27] and what complies with the statute or the common law are not necessarily the same thing; the statute demands the employer "ensure" safety which is hardly met by increasing the weight from 6.5kgs to 15kgs and so adopting means that increase the risk; I do not limit my finding to a weight of 15kgs - the upper limit of the estimates (when the counter balancer was not operating effectively) was 25kg[28]; his own analysis of the Reasonable Weight Limit at 12.4kgs is inconsistent[29]; as Mr Kahler explained it is not merely the weight but the interaction of forces[30]; and inherent in Dr Olsen's analysis is the assumption that the 75th percentile is the measure, based on studies from decades ago - I have difficulty accepting that his assumption is consistent with an employer's obligations.
[38]
Mr Kahler's reasons for adopting the NIOSH criteria and its conservative approach are more in keeping with those obligations.[31] I note the reference in the Code[32] to applying the NIOSH criteria, which Dr Olsen rejects,[33] and the Mitel et al study, which is more conservative than the Snook and Ciriello tables that Dr Olsen relies on.[34] Cogent reason would need to be shown why reputable studies into workplace risk should be ignored. Whilst Dr Olsen argued that the NIOSH criteria are "unrealistically conservative and that its findings are out of keeping with what is commonly known to be reasonable in industry"[35] that rather begs the question. No challenge was made to Mr Kahler's statistics that 140 people in Australia each day suffer some form of permanent damage, 60% of whom will not return to work, and 30% of whom attribute their damage to over exertion tasks.[36] Industry might well accept that this is the reasonable cost of doing business. But the test is not what industry considers reasonable. There is every reason for a conservative approach if the common law and statutory duties are to be properly considered.[37]
[39]
[30] I appreciate that both experts when measuring the forces arrived at a figure of 5.5 to 6.5 kgs. Mr Kahler did not endeavour to ascertain a maximum. Dr Olsen did. The conclusion I draw is that the saw was quite capable of operating within the 6.5 kg level when the counterbalance was operating effectively. The plaintiff contended that on the occasion he was injured the counterbalance did not operate in the manner that the experts observed. In addition, it had regularly failed in its function over the preceding months of his operation of the saw prior to 9 June 2006 resulting in numerous complaints from him.[38] The issue that the plaintiff agitates is that when the counterbalance failed in its function, the operation of it became extremely demanding, and no proper procedure was in place to detect and correct those regular failures.
[40]
Again, there are several pieces of evidence which persuade me that I should accept the plaintiff's case that the forces involved in the operation of the saw were capable of well exceeding 6.5 kgs such that the risk was both more than trivial and foreseeable[39].
[41]
Firstly, the weight that can be given to Dr Olsen's claimed maximum measurement is considerably affected by the circumstances surrounding his testing. On the day of his testing[40] and prior to it the saw was being operated by its usual operator - Mr de Almeida. He was replaced by another operator, Mr Flynn, for the testing. In the meantime a supervisor had evidently tested the saw and found that "it was sluggish in the sense of being relatively unresponsive, therefore felt heavy and more like a dead weight".[41] The counterbalance was replaced and the testing proceeded.
[42]
The significant point is that Mr de Almeida had made no complaint about the level of difficulty of the operation of the saw. He presumably thought that it was operating normally[42] or that he ought not to report that it felt heavy.[43] No explanation was offered as to why a supervisor would think it necessary to check the operation of the saw before Dr Olsen carried out his testing. Assuming the saw and counterbalance were much the same on the day of testing as on the night of injury - the premise behind Dr Olsen's tests - it would have been germane to the case to measure the forces to which Mr de Almeida was probably exposed immediately prior to the lap break in which the counterbalance was replaced. This was not done.
[43]
Secondly, other operators had had a similar experience to that which the plaintiff contends for. Mr Flynn too had experienced the same unresponsive, heavy feeling at least at the commencement of some shifts.[44] I note that Mr Flynn only used the saw occasionally.
[44]
Mr Reiman operated the saw between May 2003 and late 2004. He described the task as a "heavy job"[45] and thought that "it took a lot of force to move it sideways to get it to start to go"[46] and likened the weight to the lifting of a 5 to 15 kilo fish - a weight with which he was familiar.[47] In his experience the saw was "nearly always" set for the day shift operator such that the weight to lift the saw at the top of its range of motion was "close to 15 kilos".[48]
[45]
Mr Marshall regularly used the saw between April 2003 and September 2004 when relieving the usual operator but on a more sporadic basis than either the plaintiff or Mr Reiman - he was a supervisor and superintendent. He estimated the force needed to pull the nose of the saw up at 10 to 15 kilos[49] and equivalent to "lifting 15, 20 kilos on a continuous basis"[50].
[46]
Mr Robinson worked at the station next to Mr Wright. Whilst his evidence was of limited assistance on the point as he had never operated the carcass saw he had lifted and attempted to lift the carcass saw in Mr Wright's presence on a couple of occasions as he was interested in taking over the operation of the saw at one point. He found that it weighed something like a bag of cement, say 25 kilos.[51] On other occasions, when the saw was working well, he had lifted it and found it could be lifted easily.[52]
[47]
The consistency of the evidence of these witnesses, their independence[53] from Mr Wright, and their lack of interest in the outcome of the matter in dispute all provide cogent reason to accept the accuracy of their evidence.
[48]
The only significant evidence against their views was that provided by Mr Borchardt - a superintendent by the time he gave his evidence, employed by the defendant for 36 years, and Mr Wright's supervisor on the night of his injury. Due to the intervention of illness he could not complete his oral testimony and was not cross-examined which, however unfortunate for the defendant, affects the weight of his evidence.
[49]
He gave evidence that following Mr Wright's injury he took over the operation of the saw, could not recall any difficulty in its operation, and did not replace the counter balancer.[54] It seems to me that several things can be said about this evidence - first it suffers from the same problem that Mr de Almeida presents for the defendant. He, it will be recalled, was working without complaint with a counter balancer that the supervisor considered needed replacement. What one worker thinks is normal does not prove the saw is suitably light. Secondly, Mr Borchardt seemed to me to have only an imperfect recollection of the evening - whether he operated the saw for a few moments or for an extended period he could not recall.[55] Thirdly, whilst Mr Borchardt had had experience with a carcass saw in the past[56] it appeared that he had used this particular saw and its counter balancer only on the occasion following Mr Wright's injury.[57] He was not in a position to know what was normal and what was not.
[50]
The third aspect of the evidence which persuades me to accept Mr Wright's contentions is that it is plain that he did regularly complain about the weight of the saw. Mr Borchardt accepted Mr Wright had come to him and complained that the saw was "no good" and it would need to be adjusted.[58] Mr Borchardt's view of the frequency of complaint was not explored. Mr Wright contended that it was a standing request that at the start of each shift the counter balancer required adjustment but that adjustment (which required the attendance of a fitter) did not always happen and did not on the day of the injury. Mr Borchardt believed that there was no standing arrangement but rather he relied on Mr Wright complaining to him.
[51]
Mr Brady, the fitter in charge of adjusting the saw, confirmed that in the course of a single shift he might receive up to five requests from Mr Wright to have the saw adjusted.[59]
[52]
Why Mr Wright would make such complaints if they were untrue is difficult to fathom. How he could make them repeatedly without significant adverse comment or action from his supervisor, if they were untrue, is inexplicable.
[53]
[44] I am satisfied that the operation of the carcass saw could involve the operator in the manual handling of weights in the order of 15 to 25kgs when the counterbalance was not operating effectively. I am satisfied that the lifting of such a weight involved a foreseeable risk of injury to the spine and certainly one that was more than trivial.[60] The probability of spinal rotation and the repetitive nature of the task added to the risk.
[54]
There remains the question of whether the counterbalance was operating effectively on the night of the injury. A finding in the plaintiff's favour on the issue depends on the acceptance of two pieces of evidence - first, his account of the difficulties in operation on the night and, secondly, his claim that he suffered injury in lifting the saw - an unlikely event if the forces to which he has exposed were no greater than 6.5kgs.
[55]
As to the first point the defendant's main attack centred on why the plaintiff did not report the problems if they were so acute. As well, the defendant points to Mr Borchardt's evidence that he did not replace the counter balancer on the night.
[56]
I have dealt with Mr Borchardt's evidence above. I point out, as well, that it is unknown who took over the saw through the evening and what adjustment, if any, that operator deemed necessary. I am not at all confident that Mr Borchardt would have any recollection, given the frequency of complaint and lack of perceived need for adjustments, of whether there were in fact adjustments required.
[57]
As to the lack of complaint the answer, it seems to me, is in the plaintiff's perception of the appropriate course to follow when there were problems. In order not to disrupt the chain - and consequently potentially affect the income of himself and his fellow workers for the night[61] - he waited for a time when his supervisor was available either nearby in the course of the work or during a lap break. That opportunity had not yet come.
[58]
No doubt much depended on his appreciation of how seriously he should view the problem. Mr Borchardt, on the plaintiff's account, did not always respond immediately to his complaints which says something as to the employer's perception of the seriousness of the risk and sends an implicit message to the workers.[62] I am not persuaded that the defendant had instructed him that any greater urgency was appropriate or that any adverse inference should be drawn from the fact that the plaintiff did not adopt a more urgent approach.
[59]
As to the second point it is not in issue that the injury was suffered as the plaintiff claims.
[60]
I am satisfied that Mr Wright was exposed to the forces involved in the lifting of weights in excess of 15 kgs, and probably in the order of 20kgs, on the night shift in question and at the time of his injury.
[61]
[52] Mr Miles for the defendant submits that the plaintiff has not pleaded that his injury occurred as a result of a malfunction of the counter balancer as opposed to a failure to adjust it properly.
[62]
[53] Dr Olsen was called by the defendant. His testing demonstrated that if the workers' reports of the saw weighing in the order of 15kgs and above were accepted then the counterbalance was not functioning as designed.[63] As well, if working effectively, the counter balancer should have maintained its function throughout the shift.[64]
[63]
I do accept the workers' evidence as I have explained. Why the counterbalance failed in its function is unexplained. Neither Mr Kahler nor Dr Olsen had the expertise to venture an answer.
[64]
There is no merit in the point. The pleading reflected the plaintiff's experience that his complaints could be met, often only temporarily, by adjustment to the mechanism by the fitter. The issue is whether there is any material difference to a case that the balancer was not kept properly adjusted as opposed to a counter balancer malfunctioning. The defendant's own evidence is that the counter balance does malfunction if it requires continual adjustment or results in the worker bearing weights of 15 kgs or above. Those issues were fully and exhaustively canvassed.
[65]
[56] Were there measures available to the employer to minimise the risk of injury or to "ensure the safety of the plaintiff"? The plaintiff contended for four measures - provide a different saw with a counter balance that functioned effectively; carry out such preventative maintenance to the counter balance as would have ensured that the operator was exposed to no more than the 6.5kg force intended; provide an air operated pneumatic balance rather than a spring counter balance with the consequence that the operator was not subjected to any significant load at any time; and raise the height of the stand so as to minimise the lifting involved.
[66]
[57] The defendant did not argue that there were no alternatives but rather that there was no need for them given the level of risk demonstrated. Evidence was led as to the impracticability of the pneumatic device and the raising of the stand.
[67]
[58] If the failure of the counter balance was a one-off occasion, and for unexplained reasons, that may have caused the plaintiff some difficulties in his proof. However the frequency of complaint and the experience of so many different workers should have put the employer on notice that something was amiss. As I have found, those ongoing problems increased the risk of injury to an unacceptable level. A failure to correct such an ongoing problem - whether by adequate preventative maintenance or replacement with properly functioning machinery - is a breach of the employer's duty both at common law and under the statute.
[68]
[59] Messrs Reiman and Marshall each had experience at other meatworks where different apparatus involving a pneumatic air balancer was used that had the effect of making the operation of the saw a great deal lighter than at the defendant's meatworks. Mr Kahler confirmed that such devices would have meant no need for adjustments and a continuous operation throughout the vertical movement of the saw at an appropriate and manageable level.[65]
[69]
[60] Mr Lund, the defendant's plant engineer, gave evidence that his experience with the devices had been an unhappy one at a meatworks in Biloela for a 4 year period from 1984. He was concerned principally with reliability and maintenance issues.
[70]
[61] It was evident that the defendants' legal representatives were unaware that Mr Lund held the views that he expressed in evidence until, in re-examination, Mr Miles of counsel apparently stumbled upon them. Hence Mr Lund's concerns were not put to Mr Kahler, or to the lay witnesses who had experience with the devices, or to Dr Olsen. The defendant had not raised by its pleading any issue of this type to put the plaintiff on notice. Thus there was no exploration of the detail of the maintenance and reliability problems, whether Mr Lund's experiences were representative or not of the general experience, how those problems compared with the spring balancer model, and the relative costs involved in these issues. As well no evidence was led concerning the comparison of the standard of machinery 20 to 24 years ago compared with modern day equipment.
[71]
[62] The pneumatic device offered advantages as Mr Kahler pointed out. A significant one was the obviation of continual need to adjust the mechanism by a fitter. Other meatworks plainly use them. No evidence was called from those other meatworks to support Mr Lund's claims. If the difficulties were insurmountable then it would be surprising if experts of the experience of Mr Kahler and Dr Olsen had not heard of them. There was no hint of that in their evidence.
[72]
[63] Given that these concerns were effectively raised as an afterthought, and in the unsatisfactory state of the evidence, I am not satisfied that the concerns mentioned by Mr Lund were of such significance as to justify a finding of impracticability.
[73]
[64] Raising the height of the stand would have meant that the height to which it was necessary to lift the saw was significantly lessened or the need removed.
[74]
[65] Mr Miles who appeared for the defendant contended that the alteration to the height of the stand was impracticable because of the expense of alteration - some $75,000 on his case. Mr Kahler contended for a lesser cost.[66] He had in mind raising the height by some 300 - 500 mm.[67]
[75]
Whilst I accept that the defendant's plant engineer, Mr Lund, is probably in a better position than Mr Kahler to assess the likely costs involved, he assumed a complete replacement of the stand, hence a greater change in height, and one which involved the raising of the ceiling. His fundamental premise was that the stand travelled to the maximum height possible within the confines of present structure. He did not respond directly to the points made by Mr Kahler nor were the detail of his objections and costings put to Mr Kahler.
[76]
There are three issues: Is it right to consider the expense of alteration to the presently existing structure at all? Does such an expense excuse the defendant from minimising a risk of injury as I have found it to be? Is there an alternative means of achieving the same object without incurring the expense?
[77]
[68] As to the first issue: the plant has been re-outfitted many times over the years.[68] The statutory obligation now found in the Workplace Health and Safety Act 1995 was originally found in the 1989 Act of the same name albeit in a slightly different form and with differing defences. [69] The differences are not material to this issue. The argument is that in constructing or refitting the plant the employer ought to have built to an appropriate height then and it is that additional cost that is relevant. I have no evidence about that additional cost.
[78]
[69] As to the second issue: it would be rare that expense alone would justify an employer in taking no action. I am conscious of Mason J's dictum in Wyong Shire Council v Shirt[70] that I am required to consider the "difficulty, expense and inconvenience" to the employer of any alleviating action as well as "any conflicting responsibilities" that it may have. I am conscious too of weighing the degree and likelihood of injury in the balance. The standard expected of an employer at common law is "not a low one".[71] The taking of reasonable precautions and the exercising of proper diligence required by the Workplace Health & Safety Act 1995 can be no less.
[79]
In my judgement even if it were appropriate to consider this expense as a one-off expenditure of $75,000, and I don't consider that that is the right question, a cost of $75,000 is not so significant that a major meatworks, with an annual budget in excess of $500,000 for maintenance of plant[72], is entitled to ignore an exposure to injury occurring potentially hundreds of times a shift, that injury including the prospect of a lifelong disabling spinal injury.
[80]
[71] There remains the debate as to an alternative means of raising the stand. Mr Kahler pointed out two things - firstly, that the rails that contain the rollers for the carriage were extendable so that the length of stroke of the air cylinder that delivered the platform could be altered[73]; and secondly, that there were a number of shackles and a rubber stopper that seemed to him to serve no useful purpose and could be removed.[74] In each case the proposed alteration would have the effect of permitting the stand to go higher vis-à-vis the carcass and without altering the ceiling height. Neither Dr Olsen nor Mr Kahler could understand why the shackles and stopper were present. No evidence was led from the plant engineer on the subject. Again the onus on the defendant was not discharged.
[81]
[72] There were therefore measures available to the employer, reasonably open to it in all the circumstances, that would have probably protected the plaintiff from the risk of injury, and that would not have unduly impeded the performance of the work.[75]
[82]
The statute requires that if a code of practice is in place it be complied with or alternatively that another way be adopted that provides the same measure of protection: s 26(3)(b)(i) and 37(1)(b) Workplace Health & Safety Act 1995.
[83]
The plaintiff tendered the Manual Tasks Code of Practice 2000.[76] An essential step is to identify and assess the risks of the manual tasks performed at the workplace. When challenged to produce the risk assessment that the defendant pleaded that it had performed Mr Miles produced the Safe Work Instruction form.[77] There is no recognition in that document of the risk involved in the counter balance not functioning as designed. Indeed the only admonition contained in the form is to ensure training to "raise the saw to the correct height to ensure that it remains horizontal." All agreed that it was not possible to comply with that instruction given the height of the stand relative to the carcasses.
[84]
The Code indicates that the work place should be designed to avoid twisting and workers be educated to move their feet to turn and not to twist.[78] As I have previously noted the work place was not so designed and there was no education of the workers not to twist.
[85]
Mr Crow who appeared for the plaintiff referred to Chapter 10.6 of the Code as relevant. That chapter deals with hand tool use. One section deals with suspended tools and balancers. Not surprisingly the Code suggests "Keep balancers adjusted".[79] That did not happen at this workplace.
[86]
The defendant has the onus under the statute of showing it took all reasonable precautions and exercised proper diligence. It has not discharged that onus.
[87]
[78] The plaintiff has established a breach of both the common law and statutory duties.
[88]
[79] The plaintiff was born on 29 December 1966. He is presently aged 41 years.
[89]
[80] The injury sustained on 9 June 2006 has been variously described by the medical practitioners. It is common ground that there were pre-existing degenerative changes in the lumbosacral spine and that those changes have been aggravated. Whether that has resulted in disruption to the facet joints, or discal anomalies, or one or both in combination with some form of soft tissue injury to that area of the spine of the musculo-ligamentous type, is not clear. What is clear is that whatever has been damaged has resulted in a permanent and painful condition.
[90]
[81] Dr Cook diagnosed an injury to the sacroiliac joints especially on the right side. He acknowledged his opinion was controversial[80], "presumptive" and a possibility.[81] It was not supported by his colleagues Drs Morgan and Shaw and for cogent reasons. That injury is not established. It is not necessary then to consider the legal issue of the plaintiff's right to claim damages for an injury outside the scope of the Notice of Assessment issued by WorkCover.[82]
[91]
[82] A significant difference of opinion emerged as to the plaintiff's vulnerability to developing similar symptoms had the subject incident not occurred.
[92]
[83] The principles relevant to a consideration of such an issue were explained by Mullins J in Hopkins v WorkCover Queensland[83] where her Honour reconciled the decisions of the High Court in Watts v Rake[84], Purkess v Crittenden[85] and Malec v Hutton[86]. Her decision was confirmed on appeal_._[87]As her Honour explained:
[93]
"...there was an evidential burden on the defendant to show that the plaintiff's incapacity was wholly or partly the result of his pre-existing degenerative spinal condition and that his incapacity would, in any event, have resulted from that pre-existing condition which requires evidence to "establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be".[88]
[94]
[84] Where proof as to the pre-existing condition and its likely future effects is necessarily unobtainable the court must assess the degree of probability that an event would have occurred or might occur and adjust damages accordingly to reflect that degree of probability.[89]
[95]
The plaintiff's alleged vulnerability to the development of symptoms depends on the significance of appearances on the radiological films available. The medical witnesses are agreed that the degeneration shown is within normal limits for a 40 year old labourer although Dr Morgan would put it at "the upper level of the normal extent".[90] Dr Cook thought that "his spine looks very reasonable for a man in his forties"[91] and that the changes were "relatively mild".[92]
[96]
Dr Morgan's view, expressed both as a possibility and a probability but with a concession that his analysis was "necessarily imprecise", was that the plaintiff faced similar symptoms within "a year or two".[93]
[97]
[87] Dr Morgan premised his views on the assumption that the level of forces to which the plaintiff was exposed when he sustained his injury were "not excessive and would be unlikely to result in injury" quoting from Dr Olsen's report.[94] Dr Olsen's conclusion was based on a properly operating counter-balance. That false assumption significantly undermines the weight that can be given to Dr Morgan's conclusion.
[98]
Quite apart from that consideration there were good grounds for being sceptical of any opinion as to the inevitability of chronic pain. If the only basis for the assertion is that radiological appearances are within the range of normal then it is difficult to see why the conclusion follows. It is hardly common experience that 41 or 42 year old males suffer from significant and long lasting spinal pain that the plaintiff complains of.
[99]
Dr Morgan suggested other factors were relevant including obesity, age, the work he has performed and genetics.[95] Dr Cook's response is persuasive.[96] I would add that there is no evidence of any pre-existing back pain. If the work was performed in accordance with the requirements of the law then it should not expose a worker, assuming him to be in the normal range, to a lifetime of spinal pain.
[100]
[90] As well, as Dr Shaw accepted,[97] it is common enough that persons with even severe degeneration as shown on X-ray can present with no symptoms. Dr Shaw was unaware of any medical or scientific literature that would support the notion that a prediction can be made as to the timing of the onset of symptoms merely from the degree of pre-existing degeneration.[98] He did not support Dr Morgan's views.
[101]
[91] The onus referred to in Purkess has not been discharged. It is therefore a question of weighing up the probabilities and discounting accordingly.
[102]
[92] Mr Wright complains of symptoms of pain associated with prolonged sitting, standing, and physical activities involving bending and lifting particularly. His recreational pursuits of golf and fishing have been significantly affected. He has lost his capacity for manual work. He has sleep disturbance. He has a continuing need for pain relieving medication.[99]
[103]
[93] On the other hand there is evidence that he considers his usual condition of pain or discomfort to be "mild".[100] His leg pain has receded over time.
[104]
[94] There is a deal of force in Mr Miles' submission that an insight can be gained into the true effect of the injury on Mr Wright from an examination of his activities. He undertakes frequent lengthy journeys in his vehicle.[101] He successfully manages a caravan park. That includes carrying out maintenance duties at the park. Reference was made to mowing for an hour at a time, riding a ride-on mower for up to two hours, performing renovations, erecting annexes,[102] digging a couple of post holes,[103] degreasing concrete[104] and painting[105]. He has assisted his brother at Dalby with his home renovations over the period from October to November 2007.[106] That is not to say that Mr Wright may not pay for his increased activity but he is not a spinal cripple.
[105]
[95] It is common place for evidence to be led of a percentage impairment. That was done in this case with assessments ranging from 2% to 10%. I agree, with respect, with the observations of Douglas J in Driver v Stewart & MMI:
[106]
"It is difficult to really gauge what is meant by such percentage impairments. The real test is the extent to which a trial judge is able to assess the degree of incapacity and discomfort which is caused by an injury ..."__[107]
[107]
[96] Here the plaintiff is relatively young, and it seems that his condition is a permanent one. He may have had some level of symptoms eventually had the subject accident not occurred but that seems to be only a slightly greater risk than for a typical manual worker, due principally to his obesity. No great discount is merited.
[108]
[97] I assess damages under this head at $50,000.
[109]
[98] Mr Wright can no longer work as an A grade slaughterman. He has not done so since the date of the subject injury. Mr Crow, who appeared for the plaintiff, conceded that the claim should be limited to the amount notified to the defendant pre-trial of $11,840. It appears that the true loss is probably greater.
[110]
[99] The current net weekly wage that Mr Wright could have expected from his work as an A grade slaughterman is the subject of some debate. The estimates range from $775 to $886. The amounts actually received by Messrs Kemp and Flynn provide the best guide.[108] An average is $817. As Mr Miles points out there can be stoppages not brought into account by that average e.g. the recent flooding in Mackay. I will adopt $800 as a working guide to Mr Wright's pre-accident earning capacity.
[111]
What then is his residual capacity? Mr Wright gained employment post injury as an on-site manager of a caravan park. He presently earns $1000 per week gross including the benefit of a residence. From that sum he meets certain business expenses.
[112]
A great deal of the trial was taken up with examining Mr Wright's accounts and tax returns. The matter was complicated by Mr Wright having no clear distinction in his books of account of items of expenditure that were personal as opposed to business related. As well he failed to claim back from his employer expenses that he incurred on their behalf despite there being no contractual impediment to him doing so and no suggestion from the employers that they would have taken an adverse view of him or his continued position had he done so. This idiosyncratic approach to his affairs not only led his accountants and lawyers into error but amply demonstrated Mr Wright's lack of experience in conducting a business.
[113]
The accountants called - Ms McKendry for the plaintiff and Mr Thompson for the defendant - came up with very different conclusions as to the true net earnings from the business. Ms McKendry's amendments to her letter of 22 February 2008 indicate a true level of earnings of $373 net per week.[109] Mr Thompson arrived at a figure of $760 net per week.[110] Neither counsel was prepared to carry out any detailed analysis of the extensive evidence led to justify their submissions that their respective accountants had it right. Neither will I. Suffice to say that Mr Thompson made valid points concerning the reliability of the records but he assumed every point against the plaintiff, usually when he simply had no evidence to go on. Ms McKendry's approach was to assume that what might satisfy the taxation authorities necessarily reflected the true earning capacity, which is not the correct exercise.
[114]
A simpler approach - and bearing in mind that the best that can be done is to arrive at an approximation of an earning capacity in the longer term - is to note that to engage labour to cover for him when away, Mr Wright paid casual workers $100 per day. There is nothing to suggest that these payments were not arms length transactions. There is no reason why Mr Wright would over pay such workers. Five day a week employment would result in a net weekly income of $449.
[115]
The loss of capacity is not measured simply by the difference between the figures of $800 and $449. The owners, Mr and Mrs Head, are thinking of selling the park and so there is no guaranteed future in the present employment. It is probably reasonable to postulate that had the subject injury not occurred Mr Wright had employment for life at this or some other meatworks so long as he remained fit. Availability of employment of a type that he can perform, possible interruptions to continuity of employment because of back pain and consequent reduced capacity, and unattractiveness as an employee given his history of and vulnerability to injury, all need to be brought into account.
[116]
Against that are Mr Wright's demonstrated ability to find work despite his impairment and disability, his willingness to put up with discomfort to obtain and retain work,[111] and his evident good character as a trustworthy manager. These qualities will stand him in good stead in the future. These positive factors do not outweigh his considerable vulnerability on the open labour market.
[117]
I will allow the sum of $210,000 for future economic loss.[112] I have endeavoured to bring into account some risk of the development of symptoms over time had the subject accident not occurred including the evidence concerning risk factors related to obesity and smoking.[113]
[118]
[107] The plaintiff makes claim for expenses incurred in attending on a general practitioner every two months. The difficulty with the claim is that it is by no means evident that Mr Wright has had to attend so frequently in the past and no evidence that he needs to do so in the future. The quantum statement tendered apparently details every visit to medical practitioners and speaks of only two visits to a general practitioner since 17 November 2006.[114]
[119]
A claim is made for the costs of a box of Tramal, a prescription medication, every two months. Again there is no evidence of attendances on a medical practitioner to obtain prescriptions at that frequency in the past. The last visit mentioned in evidence was on 9 February 2007. Mr Crow relies on the evidence in the quantum statement but that merely asserts how long a box of medications lasts the plaintiff - not how often he replenishes the medication.[115] There is evidence that the plaintiff typically consumes pain killing medication each morning[116] - in the absence of evidence of prescriptions I assume panadol or the like.
[120]
I will allow a global sum of $2,500 to reflect the uncertainties as to the future.
[121]
[110] Special damages are claimed in the sum of $8,033.44. That includes the refund due to WorkCover for expenses met on the plaintiff's behalf.[117] The parties were unable to agree on most points in the case and that extended to the refund. The difference seems to be in the refund due for rehabilitation expenses and the amount of the difference ($131.94) appears in a column headed ITC amounts.[118] Counsel are agreed as to the total refund, which total does not agree with the reduction for the ITC amount (whatever that may be). I will allow the amount of $7,036.94 which is consistent with the agreed total.
[122]
The plaintiff claims $996.50 expended personally but that amount includes expenses met by WorkCover.[119] I will allow the amount conceded by the Defendant at $854.00.
[123]
[112] The remaining items of loss are not contentious.
[124]
[113] In summary I assess the damages as follows:
[125]
[114] There will be judgment for the plaintiff in the sum of $284,173.78.
[10] How that sits with the concession given at T 132/30-60 is not clear to me. The concession is not retracted in the defendant's submissions: para 12 but see paras 13 to 19. I think that the answer is that Mr Miles equates twisting as being restricted to a 90 degree turn of the torso with no movement of the feet. It follows that any other manoeuvre is by that definition not twisting. I disagree. It is evident that both Dr Olsen and Mr Kahler accepted that twisting to a lesser extent might be relevant.
Parties
Applicant/Plaintiff:
# Wright
Respondent/Defendant:
Thomas Borthwick & Sons
Legislation Cited (3)
Health and Safety Act 1995
Safety Act 1995
Rehabilitation Act 2003
Cases Cited (10)
(1965) 114 CLR 164
(1964) 112 CLR 316
(1980) 146 CLR 40
(1986) 160 CLR 301
(1984) 155 CLR 306
(2007) 81 ALJR 1021
(1954) 100 CLR 225
(1960) 108 CLR 158
(1990) 169 CLR 638
(1981) 150 CLR 402
[11] Kahler: T 198/1-25 Olsen: T 405/40-405/53; 406/50 - 407/7; 409/42
[14] See T 44-45. Mr Miles in re-examination (T 423/10) had Dr Olsen assert that there was no rotation of the spine shown by the evidence to which he took Dr Olsen. That was to a different part of the evidence and in my view that section did not fairly represent the plaintiff's testimony and the specific issue was not there addressed. There is no question as to the plaintiff's assertion.
[21] Ex 2 - identifying potential hazards as "Back and shoulder injuries"
[22] See eg Mr Kahler at T 197/10; Dr Olsen at p20 of Ex 5
[23] The plaintiff's description was "Extremely - very heavy at the top" and estimated a weight of 20 kgs relating the weight to a bag of cement: see T36/45; 44/15
[24] Mr Kahler: T196/20-30; Dr Olsen: T 419/40; 406/12-50; 409/30-60. Dr Olsen calculated the Reasonable Weight Limit (RWL) at 12.4kgs without rotation of the spine (p28 of Ex 5 and see T407/45).
[26] Ex 5 p23 - I note without recognition of, and reduction for, the twisting component which he acknowledges would increase the risk: T 407/45; 406/45; 407/20
[27] Or more accurately Dr Olsen's perception of normal
[28] I am conscious of the evidence from both experts that estimates of weight are notoriously unreliable but accept Mr Kahler's unchallenged qualification that when the comparison is to a known weight the reliability is considerably enhanced
[30] T 195/45 and 196/25; 201/30. Both experts point out that the two hands take forces that are difficult to determine ie studies of straight two-handed lifting are not directly applicable, but arrive at different conclusions. I prefer the view that where the forces are indeterminate, in the sense that more may come onto one hand than the other, then a conservative approach is justified: see Mr Kahler's explanation at T201/30.
[31] T200/50-201/50; Dr Olsen accepts that the purpose of the equation is to design "safe work places": T 409/60-410/1
[37] Bearing in mind that at this stage of the enquiry all that is under consideration is whether there is a risk of injury that may need addressing - not that must be addressed
[38] Mr Wright commenced training on the saw in June 2005 and commenced on night shift as the saw operator in late February 2006
[41] Ex 5 at p6 - Dr Olsen's note of the supervisor's report and see T 266/39
[42] I observed that Mr Almeida appeared of strong build
[43] There is of course the possibility that the balancer deteriorated significantly over the lap break despite no or minimal use but that seems highly improbable - see also Mr Kahler at T192/40; Dr Olsen T 412/16
[48] T 74/20 - 74/40 - the significance of the day shift operator I took to be that beasts were smaller on day shift and so it was not necessary to operate over the full range of motion of the stand (see T 72/1)
[53] I note Mr Miles' criticisms of Mr Robinson in Schedule "A" to his submission. I reject the notion of collusion. That discussions had taken place between he and the plaintiff in a general sense was plain. My impression was that he was doing his best to relate his limited experience with the saw.
[69] See the discussion in Bankstown Foundry v Braistina(1986) 160 CLR 301 at p 307-309 per Mason CJ, Wilson and Dawson JJ and the reference to the impact of legislative requirements relating to industrial safety on community standards; McLean v Tedman[1984] HCA 60; (1984) 155 CLR 306 at 313. Despite the misgivings of Kirby J in New South Wales v Fahy(2007) 81 ALJR 1021, [2007] HCA 20 at [172] there seems to have been no direction from the High Court to water down these long standing principles.
[111] Mr Wright has the demonstrated capacity to work 7 days a week at the more casual pace of a caravan park manager. That however strikes me as an unrealistic assumption over 24 years. Assuming such a rate of pay over a 7 day week equates to a net weekly wage of $592.85. I think that it overstates the plaintiff's true capacity.
[112] I do not wish to give any spurious air of certainty to the assessment nor, if I can avoid it, give an "all too real appearance of gross inaccuracy" (Todorovic v Waller[1981] HCA 72; (1981) 150 CLR 402 at 431 per Stephen J). $800 - $449 = $351 x 24 years (738) x 80% = $207,230.
[113] As to obesity see Dr Cook at T 171/7-26; Dr Morgan Ex 15 p 8 and Ex 16 p5; Dr Shaw Ex 21 paras 16 and 17. As to smoking see Dr Shaw at T 233/35.