Alievski v Wynnes Pty Ltd - [2002] WADC 185

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALIEVSKI -v- WYNNES PTY LTD [2002] WADC 185

CORAM: WILLIAMS DCJ

HEARD: 27-31 MAY 2002

DELIVERED : 22 AUGUST 2002

FILE NO/S: CIV 4566 of 1999

BETWEEN: PERKA ALIEVSKI
Plaintiff
AND
WYNNES PTY LTD
Defendant
GIO AUSTRALIA LIMITED
First Third Party
FAI GENERAL INSURANCE COMPANY LTD
Second Third Party

Catchwords:

Negligence - Employer and employee - System of work - Duty to provide safe system - Plaintiff working as labourer/packer at defendant's meat works

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Slater & Gordon
Defendant: McAuliffe Williams & Partners

Case(s) referred to in judgment(s):

McLean v Tedman & Anor (1984) 56 ALR 359
Wyong Shire Council v Shirt & Ors (1980) 29 ALR 217

Case(s) also cited:

Nil

WILLIAMS DCJ: By consent the defendant's third party proceedings against the first and second third parties were dismissed on 27 May 2002.
The plaintiff was born on 1 July 1953 and at all material times worked for the defendant as a labourer/packer at the defendant's meat works at Waroona.
The plaintiff alleges that during the course of her work she was required to:
"(a)pack pieces of meat weighing up to 16 kilograms into boxes;
(b)manoeuvre boxes of meat weighing up to 27 kilograms; and
(c)undertake repetitive movements of reaching, lifting and pushing for long hours in temperatures of 8 to 10 degrees Celsius."
The plaintiff alleges that on 3 June 1997, whilst working in the cryovac area, she suffered a left shoulder injury as a result of the defendant's breach of its term of employment to take all reasonable precautions for the safety of the plaintiff whilst she was engaged upon her work.
The breach is alleged to have occurred in the following circumstances:
(a)requiring or allowing the plaintiff to work in conditions of 8 to 10 degrees Celsius without adequate protective clothing;
(b)requiring or allowing the plaintiff to perform the repetitive movements of reaching, lifting and pushing over long hours without adequate warm-up exercises or breaks;
(c)requiring or allowing the plaintiff to manoeuvre boxes weighing up to 27 kilograms without adequate assistance from fellow employees or mechanical means;
(d)failing to have in place a safe system of work;
(e)failing to observe the WA Code of Practice for manual handling/or take action in response to WorkSafe Improvement Notices 91945, 91948, 91949, 90748 and to previous strain injuries.
The plaintiff further alleges that on 24 July 1997, whilst working at the brisket table, she suffered a further left shoulder injury as a result of the defendant's breach of its term of employment to take all reasonable precautions for the safety of the plaintiff whilst she was engaged upon her work.
The particulars of the breach are identical to those in relation to the first alleged injury.

The plaintiff's evidence

The plaintiff had been employed by the defendant at its meat works at Waroona since 1983.
As at 3 June 1997 she was employed as a labourer packing meat and working in the cryovac section of the meat works. In that section the plaintiff was required to stand alongside a conveyor belt. Along the conveyor belt would come various cuts of meat. There were a number of different cuts of meat. The plaintiff's task was to pack a selection of them. For that purpose she would have several boxes beside her and she would be taking items from the conveyor belt and placing them in the appropriate box beside her.
When a box was full the box would be required to be moved from a static position to another conveyor belt, which ran under the conveyor belt bringing the meat to the plaintiff.
On 3 June 1997 the plaintiff attended at the first aid section of the meat works complaining of her left neck and shoulder. She continued to work on light duties for a few days and then took two weeks of her annual leave.
She returned from her annual leave on 1 July 1997 and according to her evidence was symptom free. As far as she was concerned she had completely recovered. She returned to her old duties in the cryovac area and remained there for some time before she was transferred to the brisket table. At the brisket table the plaintiff's duties were once again to pack pieces of meat into boxes. From the brisket table in front of her the plaintiff would turn through 180 degrees to place the pieces of meat in boxes behind her. Those boxes were set on rollers. It is the plaintiff's case that she was required to then lift the boxes onto a set of scales so that the boxes could be weighed before moving the boxes onto a conveyor belt which took the boxes away. It is the defendant's case that there was no necessity for the plaintiff to lift the boxes but that they could simply be rolled along the rollers to the scales which were set level with the rollers or moved to the rollers by way of the conveyor belt.
On 24 July 1997 the plaintiff again reported that she had suffered an injury in her left neck and shoulder. She has not returned to work since that time.

The Law Applicable

The duty imposed upon an employer at law for the safety of employees was stated by the High Court in McLean v Tedman & Anor (1984) 56 ALR 359. In a joint judgment Mason, Wilson, Brennan and Dawson JJ said at p 363:
"The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence (Wheare v. Clarke (1937) 56 CLR 715 at 723; Henwood v. Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 444). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk."
As to whether or not a risk of injury is foreseeable, Mason J in Wyong Shire Council v Shirt & Ors (1980) 29 ALR 217 at p 221 said as follows:
"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."

Allegations of breach

In respect of both the 3 June 1997 and the 24 July 1997 the alleged particulars of breach of the defendant's duty to take all reasonable precautions for the safety of the plaintiff while she was engaged upon her work are said to be the same.
I propose to deal with each of those alleged breaches in turn:
(a) Requiring or allowing the plaintiff to work in conditions of 8 to 10 degrees Celsius without adequate protective clothing.
The plaintiff's evidence-in-chief in respect to this allegation is as follows:
"What clothing did you wear doing that job?---A T‑shirt and - - -
A T-shirt, yes?---Yes, from Clover and I wear jumper and pants myself. T-shirt was short-sleeved.
A T-shirt with short sleeves. You have seen a T-shirt with long sleeves today before court, I think?---Yes, but I not been with the long - the other, just been overalls. We have overalls and a top on the cryovac and we have - with the short-sleeve - - -
Did you ever wear long sleeves on the cryovac?---Yes, with overalls. Yes, but it's hard because you're not supposed to touch - clothes can't touch the meat.
So how far down your arm would clothes come?---To here.
You're pointing to the elbow or in fact - - -?---Yes.
In fact she's pointing to above her elbow?---Up to here because not allowed to touch the meat."
In cross-examination the plaintiff's evidence was as follows:
"Yes. The uniform or the clothing that you see that lady, marked meat packer number 1 in that exhibit 4B - is that not what the packers used to wear typically? I'm not talking about undergarments. You could wear what you liked?---You say the cloth?
Yes. Is that the type of clothes you were supplied with?   ---Yes, white cloth. Yes.
White clothes, correct. You had to wear a net or a headscarf or something like it?---Yes, on the hair. Yes.
A lady who's shown as meat packer number 2 - is that right?---Yes.
You were free to wear track pants or whatever you felt like?---Yes.
Or whatever clothes you felt like underneath this overgarment? ---Yes, but just see on the hand - - -
SCHWIKKARD, MR:    In fact, if I could just - are those the type of overgarments that you were supplied with?---Yes, this one, correct; pants correct, with a long-sleeve, no, T-shirt. We no (sic) have at that time. We have a short sleeve, that one.
Was it not the case that you could choose whether you wanted to wear a short sleeve or a long sleeve?---We were not allowed; only short sleeves, yes - overalls, yes, but not the T-shirt and you had to (indistinct) overalls.
You were supplied with aprons?---Yes.
Which were plastic, were they, or of a durable nature? Water couldn't get through them?---Yes; water couldn't go through them.
What, were they just a cloth apron or were they of a vinyl or plastic material?---I don't remember exactly, but I think they were like a cotton, yes.
Mrs Alievski - could I ask Mr Usher - perhaps his Honour - can you have a look at that photograph before it is shown to his Honour? Can you see that that worker is a packer, is she not?---Yes.
What is she wearing on her forearms?---Gloves and something like plastic. I don't know. We no (sic) have it that time. You say about this things?
Yes, I'm talking about her forearms?---Forearms? Yes.
Yes?---No.
This part of her arms?---Yes. We no (sic) used to have that.
You say you didn't have those at that time?---No.
Mr Usher, could that be shown to his Honour because I will tender that hopefully, your Honour?
SCHWIKKARD, MR:    Is it correct that you could choose to wear whatever undergarments you wanted to, such as tracksuit pants or jeans or whatever you chose to?---Yes.
Do you know what the actual temperature in the boning room was?---8 to 10 degrees, something.
If I put it to you that it was kept at a constant temperature of 9.8 degrees you couldn't take issue or argue with that?
WILLIAMS DCJ:    Counsel is saying to you that the temperature was actually 9.8 degrees. Do you have a problem with that?---No; no problem."
The plaintiff called her daughter, Susan Alievski, who also worked in the cryovac section between 1993 and 1998. She estimated the temperature as somewhere between 8 and 10 degrees Celsius in the cryovac section. She said that the temperature felt fine because you could wear a coat or whatever you wanted to wear. She herself wore pants, short-sleeved shirt and a coat. What she wore underneath her uniform was entirely up to her but she always had to have her sleeves up to her elbows because quality assurance required that her sleeves did not touch the meat. She herself did not wear gloves, plastic cuffs over her forearms or an apron. In cross-examination she confirmed that she could have worn an apron if she had wanted to. She described the aprons as being of a plastic material and available to all employees. She was able to wear her own personal clothing under the uniform and could dress according to her own degree of comfort in the circumstances.
The plaintiff also called Mr Glen Bassule who was also employed at the meat works between 1993 and 1998 in the cryovac area. His evidence was to the effect that he was supplied with white pants, shirt and a coat and a blue apron which was optional. He did not wear anything on his forearms. Although he did not work at the brisket table he stated that the aprons were required to be worn when working at the brisket table but were optional in the cryovac room where he worked.
In relation to this aspect the defendant called Mr Lloyd Sinclair. He joined the defendant in May 1997 as supervisor in the boning room. His evidence in relation to this aspect is as follows:
"SCHWIKKARD, MR: Can you see that the worker appears to be wearing some sort of material on her forearms?---Yes.
What exactly is that? Is that part of the - is that an extension of that or is that a separate section of clothing that is supplied?---I'm not certain as to what the appropriate names are for these but all they are, they're only like a plastic weatherproof guard. The reasons the employees wear those is because we were guided by regulations which - street clothing is not allowed to be protruding from underneath the actual work garments that are provided. People have a choice of either - I mean, people can have a choice of wearing whatever amount of clothing they wish to wear as long as that clothing does not protrude from underneath the legal garments that are provided. They have a choice of either wearing no jumpers or rolling their jumpers up underneath those white clothes or they have a choice of wearing these guards and, you know, most people would rather wear those arm guards or guarders whatever they are called.
Okay. And the gloves?---Once again, that's another requirement that we are obliged to abide by. The only area that I will ever allow people to wear gloves is in the cryovac packing area, the reason being all the product is well and truly is covered. No-one is allowed to wear gloves like that in open areas or open product, the reasons being they tend to get caught. On several occasions over a period of time we've had complaints from overseas customers where some of those pieces of gloves have been caught in cartons of meat. The only areas where I'll allow and regulations will allow it are down in the cryovac packing area but that again, is an individual choice.
Insofar as the apron is concerned, what was the policy of the employer or the company, were there provided or did the workers have to purchase them?---All were provided by the company. Once again, very similar to the gloves people - it is compulsory for people that are using or handling open product. They must wear them for the simple reason is the cross-contamination. Down in the cryovac area, once again, it was individual choice and if they wished to use them they wear them. They were always there available for anybody that wished to wear them."
It is quite apparent from all of this evidence that nowhere is there any complaint about the temperature. The plaintiff confirmed that you could wear whatever you like underneath the standard issue. She also acknowledged that when working she would warm up quite quickly.
The choice was really up to the plaintiff. She could wear whatever she liked provided that her personal clothing was not protruding out from under the uniform issued by the defendant. Furthermore, she could wear the plastic weatherproof guard on the sleeves and whilst working in the cryovac area she was able to wear gloves. The use of a large blue plastic apron was optional in the cryovac area and compulsory at the brisket table.
I am unable to see how there can be any breach of the duty of the defendant to take reasonable precautions for the safety of the plaintiff while she was engaged upon her work in respect of this particular of breach.
(b) Requiring or allowing the plaintiff to perform the repetitive movements of reaching, lifting and pushing over long hours without adequate warm-up exercises or breaks.
There is no evidence whatsoever that warm-up exercises were required. There was very little evidence in relation to breaks.
The plaintiff's evidence was that in the cryovac area she was required to work at a conveyor belt along which moved various pieces of meat. On either side of the plaintiff were a set of rollers which were parallel to each other and at right angles to the conveyor belt. Empty boxes sat on those rollers. Her task was to pack the meat moving along the conveyor belts into the appropriate box alongside her. The empty boxes were obtained from a conveyor belt that moved above the conveyor belt on which the meat moved. Two other persons also worked on the conveyor belt packing different cuts of meat. She did five cuts of meat and had four to five empty boxes alongside her. When a box was filled she would lift it from the rollers and place it on a stainless steel shelf and push it on to another conveyor belt moving below the conveyor belt on which the meat was moving.
It is common ground that she worked in the position of "meat packer 2" as shown on Exhibit 4B. The plaintiff described the conveyor belt as moving very fast and estimated that she was doing eight to 10 pieces of meat a minute. The meat was wrapped in a plastic bag before it came to her. When the meat came to her she would check it to see if a bag was broken. If so it was necessary for her to place it in a tub which was two to four metres away from her. She would also check for hair or bone chips. The conveyor belt would sometimes jam. According to the plaintiff individual pieces of meat could weigh eight or more kilograms and full boxes weighed 23 to 24 kilograms.
Initially there were five persons working in the cryovac area, four packing meat and one on the scales. That was later reduced to three persons but the conveyor belt moving the meat was not slowed down.
In his closing address counsel for the plaintiff said I should focus on the second accident as the plaintiff had recovered from the first accident at the time that her second accident had occurred.
In this respect it is important to remember that as at 24 July 1997 she had only been working at the brisket table for a matter of days.
Insofar as her work at the brisket table was concerned it was the plaintiff's evidence that she would face the brisket table as shown on Exhibit 5B by the female packer facing to the right of the photograph.
Her task was to pack half briskets, which she described as being 40 centimetres in length and weighing 8 to 10 kilograms, into three or four boxes which were situated behind her. She was required to weigh the boxes up to 27 kilograms. The boxes would contain three to four briskets. This required the plaintiff to carry the packed box to a set of scales marked Scale 1 on Exhibit 5A Photo 1. Although the boxes were on rollers it was not possible to roll the boxes because other boxes would be in the way. When the box had been packed and weighed it would be pushed from the weighing machine to a set of moving rollers.

The plaintiff accepted that she had spent a week or less in the brisket section. She was unable to say how many boxes she would fill at the brisket table. She could not remember if they had stoppages.
Ms Susan Alievski largely confirmed what the plaintiff had said in relation to the cryovac section. She worked alongside her mother and described her duties as being the same. She described the larger pieces of meat as weighing 14 to 16 kilograms. Some specific cuts needed to be weighed. She also confirmed that when a box was full it was required to be lifted from the rollers and put on a ledge underneath the conveyor belt and pushed on to a set of rollers. She was unable to say what the weight of the boxes was.
She also worked at the brisket table on and off. She confirmed what her mother had to say about work at the brisket table. She confirmed that cartons weighed up to 27 kilograms. In relation to lifting cartons to the scales her evidence was as follows:
"So did you ever have to lift the full cartons to the scales?---Yes.
Why couldn't you just push them along the rollers to the scales?---Because you've got two different CLs, sometimes one carton would fill up quicker than the other and depending on how you'd positioned your cartons, so sometimes you'd have to, you know - when you fall behind and your meat is piled up, whatever is the closest bit of meat is what you'd pull off, but sometimes a carton further down the line gets filled up quicker than a different carton so you'd have to lift it and take it to the scales to try and get rid of that carton out of the - so you've got more room to put another box down because when you're behind you're just trying to fill the cartons as quickly as possible. You can't have a big pile on your table because it gets into the slicer's way and so, you know, you're just sort of putting it in each of their boxes."
The plaintiff also called Mr Glen Bassule. In 1997 he was employed by the defendant and worked in the cryovac section. He occupied the position shown by "meat packer 1" on Exhibit 4B. He confirmed the plaintiff worked in the position of "meat packer 2". He described the pieces of meat where he worked as being the heavier cuts weighing 10 to 12 kilograms and up to 15 kilograms. The plaintiff dealt with the lighter cuts. He described the packed boxes at his position as weighing about 20 kilograms. He did not work in the brisket section.
Mr Sinclair confirmed that the plaintiff worked in the cryovac section and that she was under his control. He described the lighter cuts as being the task of "meat packer 2" and the heavier cuts were dealt with by "meat packer 1".
The plaintiff would deal with various cuts, the heaviest of which were rumps at about 5 to 6 kilograms. Some of the boxes weighed less than 12 kilograms and down to 8 kilograms.
In relation to the cryovac section Mr Sinclair's evidence was as follows:
"In the position that Mrs Alievski worked - and that's I think we have established as depicted at the position of meat packer 2 on exhibit 4B - and I think it's also established, there's no dispute between us, that Mrs Alievski had to have a set of rollers on either side of her which were placed at right angles to the shelf. Is that correct?---That's correct.
Can you tell the court what the level of the end of those rollers were in relation to the shelf that it met or the closest face of it?---I think as this photo here, where carton D, where D is, in this photograph, you will see where the rollers are actually below the top of that shelf. So all the roller system, it was a continuance of - the roller systems were always - may have been three-quarters to an inch below all packing stations. So on this photograph, going from that packing area there onto the set of rollers, as you will see quite clearly on that carton, that the carton's probably, just by looking at this, maybe an inch below. The rollers on the other side would've been fractionally higher than that which enables - the cartons will flow on to the conveyor, so all the conveyers or the rollers would've been higher than the next one where the carton's going to be pushed onto it.
Was it necessary for the packers to lift cartons of product as opposed to push, actually lift cartons of product, whether it be off the rollers or off a shelf, and put them onto the conveyor at any time?---If they did, that was their choice. The system was put in place there to limit the amount of lifting for all employees but you know no matter what the system is and how you put a system in place, you know, I man (sic), if people wish to still lift a carton, basically they will do it, but it was provided there where there shouldn't have been any lifting involved at all.
If, for example, a carton which was behind a carton that was closer to the rollers got filled before the one in front, what options were available for the worker?---In the area there you'd probably find you know like sets of rollers at right angles to this table where I am at the moment. Now, in that area there where most of the smaller cuts or all of the smaller cuts were packed, some cartons would have 10 cuts, some cartons would have 12 and other cartons like rumps would have three heavy ones and four lighter ones, so the standard procedure would be the smaller cartons would be placed at the rear because the rumps are coming through the system more frequently than the flank steaks and chuck tenders, so the tendency would be for the cartons of chuck tenders and our flank steaks to be placed at the rear, then the rump cartons would be filled and it's just a matter of once you get three rumps or four rumps onto the conveyor. Now, one of the reasons why those shelves there in that photograph C is for product - - -
WILLIAMS DCJ: What are you talking about?---C on 4B.
I see?---The shelf there on that - - -
4B, okay, yes?---One of the reasons for that there is some cuts will come along that the packers aren't actually waiting for. They may be waiting for rump and you might get a chuck tender or so forth, so that is there for the packers to be able to place those cuts that's not actually wanted at that particular time. So if the carton at the rear was, as an example, flank steaks, a flank steak comes along and that carton at the rear is already full, the packer may have been waiting for a rump, so they would place the flank steak on that tray. The rump would come along; fill the carton with that rump. The rump goes on the conveyor followed by the flank steak or the chuck tender, whichever one's at the rear that's full."
In relation to the brisket table Mr Sinclair's evidence was as follows:
"SCHWIKKARD, MR: If you could look at the top photograph and ignore the bottom photograph for the time being you will note that the photographer has placed two red stickers with Scale 1 and Scale 2 there?---Mm.
What area does this depict?---That's the first table which is the brisket table.
Now, there are two scales immediately apparent there, or at least marked Scale 1 and Scale 2. During your time how many - were those scales there or not?---There were two scales there in my time. When I first went there there was two scales. Scale number 2 was different to what it is there today.
I' (sic), sorry?---Scale number 2 was the same scale as the one shown in scale number 1. There was, I think from memory, may have been 10 sets of scales or 12 sets of scales right along the whole system and they were all the same type as scale number 1 where they had a set of rollers sitting on top and they could be taken away to be cleaned from underneath, so scale 2 - there was always a scale there but this one here in this photograph is a different type of scale than what was there when I was there.
Perhaps I should ascertain this from you. After the meatworks closed down, Mr Sinclair, was there a period of inactivity - do you know whether the meatworks started up again after you left?---Clover Meats?
Yes. I think after a period of time of some months I think Harvey or E.G. Green at Harvey were using the freezer store at Clover Meats but the boning and the killing operations I think they laid idle for possibly 2 years, maybe even a bit longer - no, it wasn't. Those areas, the kill floor and the boning, weren't in use for a time, at least 2 years.
Do you know whether they have come back into use? Have they been in use since?---Yes; yes, they have in recent times but only for a period of I think 6 or 8 months.
But you weren't working there?---No, I was not.
You were working elsewhere?---I wasn't working - I was actually asked to go down by this company and run through the operations with them a week prior to their commencement, but I had nothing to do with the operation.
Can you remember specifically whether you took any note of the condition or the positions of the scales on that occasion or wether (sic) any scales had been replaced?---No, I didn't take any particular - at that particular time of these photographs here, the day that I was actually down there going through the operations with the people from the company that were taking it on, they had most of this machinery and they had bits and pieces everywhere because they were actually doing the floor in the boning room the day that I was there. They had a lot of machinery and a lot of equipment was taken out of the boning room, and where you see that red floor there, I was there the day that they were actually doing that. So there is very little machinery and that in there.
Scale number 1, is that - I understand from the evidence that there's a chuck table beyond the brisket table which is shown in the foreground of that photograph. Is that correct?---The second table is the chuck table.
Can you tell his Honour where more or less these scales are positioned in relation to those two tables and what the function or the purpose of positioning them where they were?---The first table on this photograph is the brisket table. The set of scales at scale 2 was - it wasn't actually in the centre of the table. It was more to the left-hand side. The next set of scales at scale number 1 would be basically the same, which would be to the left-hand side of the chuck table. Depending on what we were actually producing towards, I mean, there were times where we would pack 65 CL trim, which is 65 chemical lean trimmings off the brisket table. Then there were times that orders would come through and we would pack 65 CL and 85 chemical lean trimmings from that table. Because the briskets are - they contain an amount of fat throughout the whole muscle area, so what would happen: if we were packing 65, the packer on the brisket table would partly fill a carton of the navel-end brisket and smaller trimmings.
Is that at the point marked scale 2?---Scale number 2 but all she would have to do - or that packer would have to do would be to partly fill that carton. Then that carton would then be pushed on to the back set of rollers. That carton would then make its way down to - in this photograph here, further along beyond scale 1, you will see where there's another set of scales. I think by the look of this photograph that that would be the loin table or maybe the rump table. The carton here that was partly filled at the brisket table would be pushed onto the back rollers and then would be sent along those back rollers down to that area, and then it will be filled to 27.2 kilos by the people that are packing down that area. With the 85, or the leaner cuts off the brisket table, which is the point-end and brisket - it's a musclier piece of meat - once again they would be partly filled with the point-end briskets from the brisket table. That carton would then be pushed along to scale number 1. The person, or the employee, that is packing on the chuck table would then fill the remaining carton with lean chuck meat, weigh it on scale 1 and then push it on the back rollers and away it would go down t (sic) the freezers. Then the other scenario is there were times when we would - or the packer on the brisket table would just pack 65 trimming, and everything off that table would then be packed into the cartons, weighed on scale number 2 to the required weight and once that's finished, then pushed onto the back set of rollers.
The total weight, well, a packed carton, was how much? ---The total weight had to be 27.2 kilos. That is the finished carton.
And that might consist of a variety of product but including, the first line of product would be some brisket?---Half of the carton would be brisket and then the rest, in the 65 carton, half of it would be brisket and half would be filled up - or the remaining half would be filled up by the packer down at the rump and loin table, and the 85, or the leaner carton, would be half full of point-end brisket and the remainder would be filled up by the packer on the chuck table to 27.2 kilos.
Can you recall any time when there was a need for anyone to lift cartons as opposed to simply push them across onto the motorised rollers?---There shouldn't be any need to lift any of the cartons here because the first set of rollers - and you can see by this photograph here where the first set of rollers are higher than the back set, which made it easier, a matter of just sliding the carton on, and once it got onto those rollers at the rear then the whole carton was taken away."
According to Mr Sinclair in the cryovac area the plaintiff worked at the position of "meat packer 2" in Exhibit 4B. All the rollers were higher than the next roller to enable the cartons to move and there was no need to lift any cartons.
In relation to the brisket table it was Mr Sinclair's evidence that scales one and two marked on photograph one of Exhibit 5A were always there when he was there. There was no need to lift any cartons at the brisket table. It was also his evidence that there was a five minute break every hour. In the afternoon there was a break of 15 minutes. On Fridays work finished at 1.50 pm.
Ms Raelene Austen worked for the defendant between 1994 and 1998. Initially Ms Austen commenced at "meat packer 1" position on Exhibit 4B. That job got too heavy for her so she moved to the "meat packer 2" position. That involved smaller cuts of meat. Her evidence in relation to the cryovac section was as follows:
"Can you tell the court what kind of cuts were handled by the packer in that position, at number 2?---As a meat packer number 2 we handled rumps, tenderloins, chuck tenders, flanks steaks - if we had air freight orders and stuff, there was a few different cuts, and if we had special Japanese orders, there was a couple of extra cuts, but most of the time they were the four cuts we packed.
On that station where meat packer number 2 is, were there sections of rollers on either side of you?---Yes, there was.
What was the purpose of those rollers?---Basically because there wasn't enough room in front of you to put four or five different cartons so you used to pack - because the cuts you were packing, like with the rumps and that there was two different sizes so sometimes you needed two different cartons, and because that little area there wasn't enough to put the two cartons of rumps, a carton of tenderloins, a carton of flank steaks, a carton of chuck tenders - we had either side because we needed to put 10 or 12 cuts into those - flank steaks or something.
You say there were two different weights of rump, can you remember more or less what the heaviest of the rumps would be?---We did under 5.5 kilo's or something like that and over. Basically they wouldn't be any more than 6 or 7 kilo's I don't think.
Which was the heaviest cut of meat that you handled?---As a packer number 2 it would be a rump, the largest rump that you would get.
The roller systems, was there - you have got exhibit 4B in front of you?---Yes, I did have.
If you can imagine that you are looking at the other side of what we can see, is there a shelf similar to that shown in front of packer number 1, on meat packer 2's side?---Yes. Directly in front of you there was the shelf and then on either side there was rollers, they joined to stop at that shelf.
How did the rollers join? Were they lower, higher or exactly the same flush, if you understand what "flush" means?---Yes. Possibly they were just a little bit higher, which they just rolled down, there was a bit of a slant.
Once you had filled the boxes, what did you do with them then? Did you have to close them?---No, not all boxes. No.
What happened to the boxes once you filled them?---You just pushed them off, then rolled them onto the belt that was taking them in the opposite direction.
Did you ever experience any difficulty in doing that?---Occasionally you could if it was very busy but basically you only had to put your hand there and that carton would stop, and you could push the carton out.
Did you ever have to lift cartons, leapfrog one box over another, full cartons, in order to get them onto the conveyor or were you able to use existing cartons to use the meat product that you had, that was overflowing from what you had already filled?---If you knew how well they were coming down and you knew what size you were basically getting you'd put that carton there in front of you and you'd just push it along. Very rarely did you have to pick them up and - - -
Can you remember ever having to pick up one?---Possibly, yes, I would have because occasionally you've got them over there and you may have one three-quarters full.
Three-quarters full?---Yes. When I packed in that area to my left I used to put the chuck tenders and the flank steaks and stuff like that and each carton had 12 per carton. I would always put the lighter ones to one side and work my way towards the heavier ones closer to the belt. If the flank steaks, three or for (sic) of them, came down and there were still two chuck tenders or something needed into there, if you needed the room I'd just pick the box up and send it over by - I was just actually basically lifting it from there and taking it onto - - -
WILLIAMS DCJ: When you say "send it over" you mean carry it to the roller?---Yes.
SCHWIKKARD, MR: What sort of weight would we be talking about?---12 flank steaks would probably weigh 10 kilos if you were lucky.
You said it happened occasionally?---Yes.
Could you put a number on that? How frequently? Let's put it this way, during the time that you worked there can you remember approximately how many times you had to do that?---Per day?
Say per month or per week?---Basically it depended on what you were packing. Because we did a lot of different orders sometimes you would be getting a lot of cuts and you wouldn't be using the system as much as you had to. It would be pretty difficult to actually put a quite good number on it. Over the course of a day you might do it two or three times."
Her evidence in relation to the brisket table was as follows:
"The scales that you see there now, were those scales there at the time that you worked or was there a different arrangement or what?---Scale 2 didn't look like it did but when the table was laid flat the table was probably 3 foot wide and to the left of the brisket table on the conveyor belt there was a set of scales. Then next to that, probably a foot or so away, there was the double chuck table and three-quarters to that side there was another set of scales. So I would say the set of scales that is scale 2 which is possibly - it's been changed because they didn't look like that, would be the first set of scales to the left of the brisket table, and scale 1 would be the set up near the chuck table.
So where it's shown as being scale 2 it didn't look like that. The scales that you recall didn't look like that but they were in that position?---Yes.
It's a bit difficult to see but further up the line can you see any other scales?---Yes. I can see probably four more sets, three more.
Did those scales, including scales number 1, have anything sitting on top of them?---At the moment or in this photo?
No, usually when you were in working mode?---Basically, no. The scales were left so that - whether the packer on the left or the right, if they needed to use the scales they could push their carton onto the scales.
If you were working at the brisket scale or packing brisket did you have to close up the carton or shift it along? Was it always full of only brisket product or did you move up the - - -?---No. When I packed briskets, depending on the cut you did, if it was steer there was two types of meat we had to pack. We had an 85CL it was called which was really lean meat and a 65CL which has got a fair bit of fat in it. Your 65 you half-filled the carton. The carton would be behind you, to the right, or wherever and you would half fill it. You would push it through off those set of rollers onto that set of rollers that were running down the chain and two or three tables down the row would pull that carton off the belt and fill it up because the meat from that table was too fatty and it would never meet the CL test. So you never filled a 65 carton up. Your 85, it was put there and you half-filled it and you pushed it to the set of scales or next to the set of scales and then the person from the chuck table would turn around and fill it up otherwise - - -"

What all that evidence shows in my view in relation to the cryovac section is that the plaintiff did perform repetitive movements because she was on a workstation on a conveyor belt. She was required to reach for pieces of meat to place them in boxes. There was a modicum of lifting from time to time and that she was required to push the boxes onto the roller. However she was not doing anything else anybody else was doing. All of these things are said to have occurred without adequate warm-up exercises or breaks. There is no evidence that adequate warm-up exercises were required. There was minimal evidence in relation to breaks and nobody complained about the fact that there were no breaks.
In my view both the plaintiff and her daughter have exaggerated the requirements of the job. I accept the evidence of Mr Sinclair and Ms Austen as to the work practices at the time of the plaintiff's incidents.
In my view in respect of this particular of breach that the plaintiff has failed to establish that the defendant failed to take all reasonable precautions for the safety of the plaintiff while she was engaged upon her work.
The point needs to be made that it is the plaintiff's case that she had made a full recovery from the first incident prior to the second incident taking place.
In respect to her job at the brisket table on the plaintiff's evidence she had only been there a matter of days. Whatever the plaintiff was required to do it can be hardly be said that it was repetitive in the sense that she had only been doing it for a few days.
I do not accept her evidence and that of her daughter that she was required to lift cartons weighing up to 27 kilograms on to the scales whilst working at the brisket table. Again, I accept the evidence of Mr Sinclair and Ms Austen in this respect.
Furthermore in respect of both 3 June 1997 and 24 July 1997 the plaintiff is unable to point to any incident which she says caused her injury. In respect of 3 June 1997 she simply says that she suffered a pain in her left neck and shoulder. In respect to 24 July 1997, she says that she suffered an injury when she got a sharp pain in her left neck and shoulder. She describes the pain in the left neck and shoulder on both days but does not attribute it to anything that she did on either of those days.
I read this particular as being governed by the words "without adequate warm up exercises or breaks". There was very little evidence about this aspect and the plaintiff made no complaint about these matters.
(c) Requiring or allowing the plaintiff to manoeuvre boxes weighing up to 27 kilograms without adequate assistance from fellow employees or mechanical means.
This appears to be the major complaint of the plaintiff. Insofar as the cryovac area is concerned there is no evidence that the plaintiff was required to manoeuvre boxes weighing up to 27 kilograms.
The plaintiff's evidence was that boxes in the cryovac area weighed approximately 23 to 24 kilograms. Mr Bassule's evidence was that they weighed about 20 kilograms. Mr Sinclair's evidence was in the position of the plaintiff at "meat packer 2" in Exhibit 4B that 16 kilograms would be as heavy as the carton would get. Ms Austen's evidence was that she would occasionally carry boxes of 10 kilograms on the basis of two to three times per day.
In my view the plaintiff has exaggerated both the weight of the boxes and the number of times the boxes were required to be carried. It is my finding that at packing station number two where the plaintiff worked the boxes it did not exceed 16 kilograms and it was only occasionally that the plaintiff was required to lift a box.
In any event it needs to be restated that the plaintiff's case is based on the fact that she had recovered from the first incident at the time of the second incident and so she has made a complete recovery in relation to the incident in the cryovac area.
Insofar as the brisket table was concerned it is the plaintiff's evidence that she would have to carry the boxes weighing up to 27 kilograms to the scale marked one on Exhibit 5A to be weighed. Her evidence in that respect was supported by her daughter, Susan Alievski. Mr Sinclair's evidence was that there was no need to lift any cartons in the brisket area and that the rollers could be used at all times. Ms Austen's evidence was to the same effect. That in my view has to be correct because there was a continuous conveyor belt and at any time a carton which was not in an appropriate position could be pushed onto the conveyor belt and then moved from the conveyor belt when it reached a scale if it was necessary to weigh the carton. As the system is set up, I see no necessity at any time for a carton to be lifted.
It follows in my view that both the plaintiff and her daughter have exaggerated the situation in relation to the lifting that was required to be done. It may be that the case that from time to time the plaintiff did lift cartons but it is obvious from the set-up that it is not necessary to do so.
It follows in my view that the plaintiff has failed to establish this breach.
(d) Failing to have in place a safe system of work.
This particular merely restates the issue to be determined by me and is lacking in particulars.
(e) Failing to observe the WA Code of Practice for manual handling/or take action in response to WorkSafe Improvement Notices: 91945, 91948, 91949, 90748, and to previous strain injuries.
The plaintiff called Philip Paidra, an inspector with WorkSafe WA, which was an agency of the Department of Consumer and Employment Protection. He inspected the premises of the defendant at Waroona in April 1997. He inspected operations over a four to five day period. It was his evidence that during that period of time he found numerous breaches of the Occupational Health and Safety Regulations. He found manual handling problems predominantly in the boning area and the bi‑products area. Those areas included the cryovac area and the brisket table. He issued improvement notices to the defendant. The defendant had some notices reviewed predominantly for extensions of time.
In addition to the improvement notices he also discussed with management a publication called "Manual Handling" and a "Code of Practice on Manual Handling" as a means of guidance material so that management could set about doing hazard identification risk assessment and implementing controls in relation to manual handling in the boning room and also in the by-products area. The publications were in the nature of general advice rather than being specific as to a particular task. The improvement notices related to the fact that the defendant did not have in place a job safety analysis for different tasks and didn't have an adequate reporting system. The improvement notices were directed to getting the defendant to come up with a manual that set out the job safety analysis for each task involved in the process.
The improvement notices are the subject of Exhibit 8. In my view the notices are in very general terms and do not relate directly to the plaintiff's case.
In my view the plaintiff has failed to establish this as a ground of negligence.
It follows in my view that the plaintiff's claim should be dismissed.
In my view it is not appropriate that I assess the damages in this matter. I have formed an unfavourable view of both the plaintiff and her daughter who, in my opinion, are prone to exaggeration. In the circumstances it does not seem appropriate that I assess the damages.