Alievski v Wynnes Pty Ltd

[2003] WASCA 302

ALIEVSKI -v- WYNNES PTY LTD [2003] WASCA 302

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 302
Court:	THE FULL COURT (WA)
Case No:	FUL:129/2002	Heard:	23 MAY & 27 JUNE 2003
Coram:	MURRAY J WHEELER J HASLUCK J	Delivered:	4/12/03
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal dismissed Costs order amended
Category:	B
PDF Version

Parties:	PERKA ALIEVSKI WYNNES PTY LTD
Catchwords:	Negligence Employer's liability Whether unsafe system of work Employment as a meat-packer at an abattoir
Legislation:	Workers Compensation and Rehabilitation Act 1981 (WA) Occupational Health and Safety Regulations
Case References:	Browne v Dunn (1893) 6 R 67 Ex parte Reed [2003] WASCA 123 Kioa v West (1985) 159 CLR 550 Klahn v Audeh [2001] WASCA 336 Lloyd v Faraone [1989] WAR 154 Pinkstone v R [2003] WASCA 66 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Fazlic v Milingimbi Community Inc 150 CLR 345 Fox v Percy [2003] HCA 22, 77 ALJR 989 Re Bannan & Ors; ex parte Suleski [2001] WASCA 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ALIEVSKI -v- WYNNES PTY LTD [2003] WASCA 302 CORAM : MURRAY J

WHEELER J
HASLUCK J

HEARD : 23 MAY & 27 JUNE 2003 DELIVERED : 4 DECEMBER 2003 FILE NO/S : FUL 129 of 2002 BETWEEN : PERKA ALIEVSKI

Appellant

AND

WYNNES PTY LTD
Respondent

Catchwords:

Negligence - Employer's liability - Whether unsafe system of work - Employment as a meat-packer at an abattoir

Legislation:

Workers Compensation and Rehabilitation Act 1981 (WA)

Occupational Health and Safety Regulations



(Page 2)

Result:

Appeal dismissed

Costs order amended

Category: B

Representation:

Counsel:

Appellant : Mr D M Bruns
Respondent : Mr E M Corboy SC & Mr A J A Adam

Solicitors:

Appellant : Slater & Gordon
Respondent : McAuliffe Williams & Partners

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

Browne v Dunn (1893) 6 R 67
Ex parte Reed [2003] WASCA 123
Kioa v West (1985) 159 CLR 550
Klahn v Audeh [2001] WASCA 336
Lloyd v Faraone [1989] WAR 154
Pinkstone v R [2003] WASCA 66
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Case(s) also cited:

Fazlic v Milingimbi Community Inc 150 CLR 345
Fox v Percy [2003] HCA 22, 77 ALJR 989
Re Bannan & Ors; ex parte Suleski [2001] WASCA 289


(Page 3)

1 MURRAY J: : This case concerns injuries suffered by the appellant at work in her employment with the respondent, for whom she had worked for many years prior to the time when these injuries effectively ended her employment. She sued for damages for negligence.

2 Her pleaded case was that she was employed as a labourer and meat-packer at the meat works conducted by the respondent, who trades as Clover Meats. Her work involved packing pieces of meat into boxes. She pleaded that they could weigh up to 16 kgs. She pleaded that she then had to manoeuvre the boxes of meat so that they could be subjected to other processes. She said they would weigh up to 27 kgs. That work, she said, involved repetitive movements of reaching, lifting and pushing for long hours in temperatures of 8-10° Celsius. It appeared that the appellant had only had some minor work-caused injuries in previous years. She had suffered some wrist problems, but none of them appears to have been of any significance, requiring only that the wrist be bandaged to give more support until the problem resolved itself.

3 The pleaded case of the appellant focused on two specific occasions. The first was on 3 June 1997 when she was working in a part of the works described as the cryovac area, doing the work which I have generally described. The evidence describes the functions performed in this area in more detail, but it is sufficient for present purposes to say that here a worker in the appellant's position stands at a workstation which has two levels. The top level consists of a conveyor belt, upon which move various cuts of meat. The worker has in front of her, or, where the appellant worked, to her side, a quite large box. It stands on a metal surface. She reaches across and selects various cuts of meat from the upper conveyor, which is at about the height of her upper chest. She pulls the cut of meat towards her, across a metal platform, lifts it off the upper section and packs it in the box. As I understand it, each box, when fully packed, is to contain various different cuts of meat. When it is fully packed, as required, she pushes it off the metal table upon which it sits and slides it away from her onto another conveyor belt, comprised of metal rollers. The box of meat is then carried away on this belt to other workstations where it is weighed and closed.

4 The appellant pleaded that while working in this area on 3 June 1997 she suffered an injury to her left shoulder. There appears to have been no finding of the precise nature of this injury. The appellant was put to light duties for a few days, and she then took annual leave for

(Page 4)

2 weeks. She returned to work on 1 July 1997 and resumed her duties in the cryovac area. She was symptom-free, but she was soon transferred to the brisket area. The appellant, in evidence, appeared unsure why that occurred, but she said she thought it was because she couldn't keep up in the cryovac area, presumably a comment concerned with the speed at which work was required to proceed in that area, having regard to the number of workers employed there.

5 In any event, she pleaded that on 24 July 1997 she suffered a further injury to her left shoulder, of the kind experienced on 3 June 1997. As a result, she pleaded that she was unable to continue in her work. She described her injuries as involving tendonitis, a cuff lesion and trauma to the discs of her cervical spine. In the statement of claim she describes a variety of disabilities for which, it seems, she required medication, physiotherapy, hydrotherapy and facet joint injections, in attempts to relieve her pain and consequent restriction of movement.

6 There was much dispute in the evidence as to the requirements of the work, particularly in the brisket area. The appellant and her daughter gave evidence, but the trial judge found that they had exaggerated the requirements of the job generally, and he accepted a body of evidence called by the defendant – that of a supervisor in the boning room at the relevant time and that of another worker employed to perform duties similar to those of the appellant.

7 His Honour's acceptance of this evidence led to the conclusion that in the brisket area, the worker would again be working at a metal table. She would be presented with the cuts of meat from which she would need to make a selection. Having done so, she would turn through 180° with the piece of meat in hand and place it in one of three or four boxes on a roller conveyor belt. When the boxes were about half full, they would be pushed onto a moving conveyor belt so they would be taken to a set of scales at the workstation of another packer, who was concerned to fill the boxes with a cut of meat called chucks until the box was filled to a point where it finally weighed almost exactly 27 kgs.

8 It can be seen that the task of the brisket packer was a limited one, but not dissimilar to that in the cryovac area in the sense that the worker was employed on a production line where the work was manual work, necessarily involving the handling of cuts of meat, putting them into boxes and pushing the boxes onto conveyor belts so that they could be transferred to other workstations. Because of the nature of the product being handled, the evidence established that the temperature was

(Page 5)

controlled and kept under 10° Celsius. The movements of the workers during the course of their shifts were necessarily repetitive, but not in the sense that a particular physical movement was repeated over and over again.

9 The appellant pleaded that her injuries were caused at work. So much appeared undeniable. She pleaded that they were caused on 3 June 1997 or 24 July 1997, or on a combination of both dates. In relation to neither occasion could the appellant identify any particular event or occurrence which had caused her injury. She was merely able to describe the sudden onset of disabling pain in her neck and left shoulder. In particular, the appellant gave no evidence that on either occasion she was injured when lifting a piece of meat, putting it into a box, lifting a heavy box laden with meat, pushing a box, or otherwise manoeuvring a box, filled or partially filled with meat.

10 In a sense, it did not matter that the appellant was unable to identify any particular incident which caused her harm, even in the context of limitations imposed by the Workers Compensation and Rehabilitation Act1981 (WA), upon the Court's capacity to award damages. So far as the case at common law was concerned, for causation purposes it mattered not that the injury and harm ultimately suffered by the appellant was caused while working in the cryovac area on 3 June 1997, or in the brisket area on 24 July 1997, or was a combination of what occurred in both areas on those dates, provided the appellant could establish that the harm was negligently caused by the respondent. As to that, however, she was, in any event, unable to focus attention upon a particular activity which she was required to perform in the course of her duties which caused her injuries and to assert that she was required to perform that activity in breach of the respondent's duty of care.

11 The trial judge, I think, made no finding about precisely when the injuries for which the appellant sued were received. His Honour noted that counsel for the appellant, in closing his case, invited the Court to focus attention upon the second incident, in view of the appellant's evidence that when she resumed work after taking her annual leave, following the first incident, she was symptom-free. But his Honour continued to discuss the evidence in relation to the work activities in both the cryovac section and the brisket section of the workplace and in the end his Honour appears to have discussed the alleged particulars of negligence in relation to both areas of work.

(Page 6)

12 The appellant pleaded particulars of the alleged negligence as follows –

1. Requiring or allowing the respondent to work in conditions of 8-10° Celsius without adequate protective clothing.

2. Requiring or allowing the respondent to perform the repetitive movements of reaching, lifting and pushing over long hours without adequate warm-up exercises or breaks. In this regard it will be noticed that it is not asserted that it was negligent to have the appellant perform the specified repetitive movements, but just that it was negligent to do so without adequate warm-up exercises or breaks.

3. Requiring or allowing the appellant to manoeuvre boxes weighing up to 27 kgs without adequate assistance from fellow employees or mechanical means.

4. Failing to have in place a safe system of work.

5. Failing to observe the WA Code of Practice for Manual Handling or to take action in response to specified WorkSafe improvement notices and to previous strain injuries.

13 The trial judge dismissed the fourth particular to which I have referred above, saying that it was merely an allegation of the essential nature of the alleged breach of the duty of care, but it seems that his Honour did overlook a request for further and better particulars which drew the response:

"The [respondent] failed to provide a safe system of work due to the failure to provide sufficient staff and improved mechanical and automated devices to reduce the risk of injury. The [respondent] failed to minimise the risk of injury based on the repetitive nature of the manual handling, repetitive lifting, pushing, pulling and carrying loads of 20-27 kg."

14 The first sentence of that further particular seems to repeat the essential allegation in the third particular set out above and the second

(Page 7)

sentence does not particularise how it is alleged that the defendant failed to minimise the risk of injury. I can see nothing in this further particular which would add to the content of the second and third particulars set out above.

15 The trial judge addressed each of these particulars in turn and found none of them to be established. In short, his Honour considered that the work processes which I have described involved no breach of duty by way of a failure to establish and operate a safe system of work.

16 I need say no more, I think, about the fourth particular and so I will mention the fifth particular first. The trial judge noted that there had been an inspection by a WorkSafe inspector in April 1997. The inspector's evidence was that he found a number of breaches of the Occupational Health and Safety Regulations in respect of the manual handling of product, including in the cryovac area and the brisket area. The inspector had issued improvement notices. His Honour found that they were concerned with the fact that the respondent did not have in place a job safety analysis for each different task and did not have an adequate reporting system. The notices were directed to cause the respondent to produce a manual, setting out the job safety analysis for each task involved in the factory. His Honour concluded that the notices were in very general terms and did not relate directly to the appellant's case. His Honour did not think that to make good this particular would establish a ground for concluding that the respondent had been negligent. I respectfully agree.

17 As to the first particular of negligence, the trial judge reviewed the evidence. The temperature was established to be in the range pleaded, but his Honour found that the evidence of the witnesses who worked in the area did not establish that there was any difficulty in carrying out the work or any increase in the hazard inherent in doing so, as a result of the temperature. As his Honour put it, nowhere in the evidence was there any complaint about the temperature. No doubt, his Honour thought, this was because, although there was protective clothing which was required to be worn, you could wear as much or as little clothing underneath as you pleased and, as the appellant said in evidence, when working you would warm up "quite quickly".

18 There was a stipulation that your personal clothing could not protrude out beyond the uniform which was standard issue, but of course that was for hygiene purposes. Plastic guards were issued for workers' sleeves. Gloves could be worn in the cryovac area and at the

(Page 8)

brisket table a large plastic apron was compulsory. But again these are measures concerned with cleanliness and hygiene rather than warmth for muscles and his Honour concluded that there was no established lack of warmth and made the point that it was not established that either accident was contributed to by the cold. Again, I agree.

19 As to the second particular of negligence, I have already noted, as did the trial judge, that this is not a complaint about the repetitive nature of the work necessarily inherent in being part of an assembly-line process. The complaint is that the danger of the work was negligently increased by the lack of a system of adequate warm-up exercises and breaks in the work and yet, his Honour noted again, the evidence. including that given by the appellant, did not raise any complaint that the work was made more difficult or hazardous by reason of the lack of exercises to warm up muscles before commencing the work or as a result of fatigue occasioned by the lack of regular breaks. His Honour reviewed the evidence comprehensively but, he said:

"There is no evidence whatsoever that warm-up exercises were required. There was very little evidence in relation to breaks."

20 His Honour found that this particular of negligence was not established.

21 It was the third particular which really expressed the gravamen of the appellant's case. It was that the work processes necessarily inherent in her job required the appellant to lift or manoeuvre boxes of meat which were too heavy to be safely moved by a worker alone, without mechanical assistance or at least assistance from fellow workers. It was here that the conflict of evidence which I have noted emerged. As I have said, that conflict was, as a matter of assessment of credibility, resolved against the appellant and her witnesses, particularly her daughter. The trial judge simply preferred the evidence called by the defendant, that of the supervisor and the other worker having experience in the tasks required to be performed in the appellant's job. He found that the appellant and her daughter "exaggerated the requirements of the job."

22 Specifically, his Honour found that in relation to the cryovac area, the appellant and her witness had exaggerated the weight of the cartons and the frequency with which there was any requirement to lift and carry them. Indeed, the evidence accepted by the trial judge established that the box on the table equipped with rollers beside the appellant,

(Page 9)

when filled, could be simply pushed onto the motorised conveyor belt and taken off by mechanical means to the next workstation where it was strapped and then wrapped. In that context, his Honour said it was only occasionally necessary to lift a box.

23 As to the brisket table, his Honour preferred the evidence of the respondent's witnesses that the system was so established that there was no requirement to lift a fully or partially loaded box of meat. His Honour saw no necessity at any time for a carton to be lifted, having regard to the continuous conveyor belt that was established to move cartons from the place were they were loaded, to scales where they were to be topped up with other cuts and weighed. His Honour thought that it might be the case that from time to time the appellant did lift cartons, but he found that "it is obvious from the set-up that it is not necessary to do so." In short, this particular was not established.

24 His Honour dismissed the claim without undertaking a provisional assessment of damages. His Honour thought that to be inappropriate as, he said, he had formed an unfavourable view of both the appellant and her daughter who, in his Honour's opinion, "are prone to exaggeration".

25 The appeal is based on a number of grounds. I will not set them out in full, but will deal with the points raised. The primary thrust of the appeal is, of course, concerned with the decision as to liability although there are grounds concerned with assessment of damages and a short point in relation to the costs of some third party proceedings, to which brief reference will need to be made.

26 The first ground of appeal challenges the conclusions of the trial judge in relation to the first particular of negligence, that concerned with the lack of adequate protective clothing for protection against the cold. There is the complaint that account was not taken of the evidence of an expert witness called by the plaintiff, a Ms Butler, the evidence being that contained in a report dated 28 April 1999. Experts were called by both the appellant and the respondent. They were ergonomists. Ms Butler's report of 1999 was the first she made. In that report she notes that the work environment was cold. As I have said, the evidence was that that was necessarily so, having regard to the meat products being handled. Ms Butler says in the course of her report that the appellant, "also worked in a cold climate within the work environment which would add to the risk of injury due to colder musculo-skeletal temperatures." As I have mentioned, that was not the

(Page 10)

appellant's evidence. No further comment is made in Ms Butler's report.

27 The ground complains about the comment in the judgment that there was no complaint about the cold by the respondent, but in my view, this was a significant matter. The short point is that the appellant in her evidence did not suggest that she was cold and she gave no evidence to support the view that that might have been connected with the receipt of her injuries. The ground finally asserts that the trial judge erred in finding that the appellant "could wear gloves in the face of her unchallenged evidence that her hands and forearms had to remain bare."

28 There is in the grounds constant reference to the unchallenged evidence of the appellant, but on a number of occasions one finds that there was a real contest as to the facts going on at the trial. I shall return to this topic, but this is a classic example because, in the evidence of the supervisor, Mr Sinclair, quoted by the trial judge, at [2002] WADC 185, par [23], there is a reference to the wearing of gloves. Mr Sinclair explains that gloves may not be worn in an area such as the brisket area because there one is handling meat which is open to the atmosphere. He suggests it is a matter of regulation concerned with hygiene and the fact that gloves might be caught in the boxes. He says the respondent has had complaints from overseas customers that pieces of gloves have been found in cartons of meat.

29 He adds that the situation is different in the cryovac area where the meat which comes to the packers is already vacuum-sealed in plastic. There gloves are permitted at the choice of the worker. Therefore, the conclusion of the trial judge that, "whilst working in the cryovac area [the appellant] was able to wear gloves", was entirely supported by the evidence accepted by him. But at any event, the point is without substance. There was no evidence to suggest, and it was not the appellant's case, that her injuries were suffered as a result of the cold or because she was not, while working at the brisket table, able to wear gloves.

30 Ground 2, as amended at the hearing, and ground 3 complain about the judge's rejection of what is described as the uncontradicted and unchallenged evidence of the appellant that she was required, in the course of her duties, to lift heavy cartons of meat. It is alleged that the trial judge erred in making findings about this, particularly in the face of what is described as a "concession" made by counsel for the respondent as to the weights of the cartons.

(Page 11)

31 It was abundantly clear that when fully packed, the cartons weighed 27 kgs or very close to that weight. That was evidence about the maximum weight of a carton. The most detailed and precise evidence about weight appears to be that of Mr Sinclair. His explanation concerned the weight of particular cuts of meat and their size; so there was a combination of the average weight of a cut of meat and the number of those cuts that could be fitted into a carton to produce the total weight of the carton.

32 The appellant complains that the trial judge referred to an average weight of about 16 kgs, but that comes from Sinclair's evidence. He explained that in the cryovac area, the weight of a carton when it left the packers would depend upon the average weight and size of the various cuts which might be required to be packed. The upshot of his evidence appears to be that an average weight from the cryovac area would be about 16 kgs and he seems to have accepted that the evidence of a witness, a Mr Bassule, also a meat packer, that the average weight might have been about 20 kgs would be about right, particularly having regard to the fact that Bassule worked habitually at the packing station which dealt with the heavier cuts of meat, whereas the appellant was speaking of a workstation where lighter cuts were packed. Nobody seems to have been in any doubt, because of the procedures that I have described, that, when a carton finally left the brisket area fully packed, it was supposed to weigh and would probably weigh about 27 kgs.

33 At one point, counsel for the respondent, when discussing the matter with the trial judge, expressed an understanding of the evidence as it would ultimately be led which is much to the effect of the evidence which was finally given. This discussion occurred during the course of presentation of the appellant's case. Counsel said that according to his instructions, the evidence would establish that cartons leaving the cryovac area would probably weigh 20 to 25 kgs, "of that magnitude", and they would weigh 27 kgs when they left the brisket area. This was not a "concession" or some sort of admission binding on the party for whom it was made.

34 But in any event, all that is rather beside the point once it is seen that the trial judge accepted that the system of work established by the respondent required nothing more than occasional lifting at either workstation. That cut the ground from under the appellant's case to a substantial degree. It certainly had a significant effect upon the evidence of Ms Butler, the appellant's ergonomist, whose evidence and opinions were very substantially based upon the instructions given to

(Page 12)

her by the appellant, that her job required repeated lifting of cartons of meat weighing about 27 kgs.

35 Ground 4 should be mentioned separately. It complains that the appellant was disbelieved "without prior indication of the possibility of an adverse finding". It is further submitted by this ground that in preferring the evidence of Sinclair and Ms Austin the trial judge erred in failing to give adequate reasons for his decision in respect of matters of credibility. There is, in my opinion, no substance in either complaint.

36 As to the first matter of complaint, the appellant relies upon the unreported decision of the Full Court in Klahn v Audeh [2001] WASCA 336, particularly at [15] – [20], but it is perfectly evident when reading that case that it very much turned upon its own facts. For my part, I would do no more than refer to the decision of the Full Court in Ex parte Reed [2003] WASCA 123, where, in a judgment with which the other members of the court agreed, at [85] – [86] I referred, in a different context, to Kioa v West (1985) 159 CLR 550, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

37 In that case, at 69 [31], Gleeson CJ and Hayne J, in their dissenting judgment, stated the relevant principles in the following terms:

"Here we are concerned with a decision to be made following a formal application. The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure."

38 It is of course the case that the rules of natural justice require that a case should not be decided upon a basis which is not that tried out by the parties and to which the trial judge has made no reference before giving his or her decision, but it is nonsense to suggest that that occurred here. This case was squarely decided on the second and third

(Page 13)

particulars of negligence. They were contested from the very outset. It was always abundantly clear what were the issues of fact upon which the decision as to the respondent's liability would turn. That did not change and the case was not decided by the trial judge upon any issue of fact which was not litigated at the trial.

39 Further, the decision of the judge was not decided upon a basis which raises any question of a failure to apply the rule in Browne v Dunn (1893) 6 R 67, as the appellant argued in support of this ground. It has often been held that that remains an important rule of fairness in the trial process: most recently in Pinkstone v R [2003] WASCA 66 at [39] – [40]. It is a rule of procedure which requires a party confronted with the evidence of a witness which is contrary to that party's case to ensure that the witness has put to him or her the contrary position so that the court is aided by having the matter fully tested and the witness is dealt with fairly, but what has to be done by way of cross-examination to comply with the rule will very much depend upon whether or not it is abundantly clear that the cross-examining party takes a position in disagreement with the evidence of the witness in question. There could be no question in this case that the evidence of any witness called by the appellant was left untested by the respondent in an unfair way in relation to any matter which was seriously in dispute.

40 Further, in my opinion, the trial judge's decision that in relation to the handling of the cartons of meat and what was required in that regard, his Honour preferred the evidence given by the respondent's witnesses, Sinclair and Austin, to that given by the appellant and her daughter, was not unsupported by adequate reasons in the sense that the losing party was deprived of the opportunity to know what the reasoning of the trial judge was which led to the adverse decision: Lloyd v Faraone [1989] WAR 154. When one reads the judgment of his Honour the trial judge it is abundantly clear that his Honour tested the evidence of the witnesses as to the system of work against the physical evidence of what his Honour called the "set-up" of the relevant areas of the factory. Photographs pictured that set-up and it was discussed by a number of witnesses, including the ergonomists.

41 The simple fact is that his Honour found the body of evidence which he preferred to be consistent with what the physical layout of the workplace revealed to be the capacity to pack cartons and move them in a particular way, which did not impose undue strain upon workers in relation to that movement and which did not appear to require anything

(Page 14)

other than occasional lifting. In my opinion, it was open to the trial judge to take the view of the evidence he did and his conclusion of exaggeration on the part of the appellant's witnesses was strongly supported by the lack of any apparent necessity to lift heavily laden cartons of meat with any frequency or at all.

42 Ground 5 complains that his Honour erred in rejecting the evidence of Mr Bassule, a witness called by the appellant. His Honour referred to the evidence of the witness, which did not relate at all to the brisket area, but was concerned with the cryovac area and a workstation different from that at which the appellant was employed. Nonetheless, his evidence seems to me to have been generally consistent with the respondent's witnesses upon which the trial judge did rely, although it should also be said that in relation to clothing worn by the workers there was nothing in his evidence which was particularly inconsistent with that of the appellant. The trial judge summarised his evidence. He did not reject it. He had regard to it, together with the other evidence, when making his findings of fact.

43 Nor, as is asserted by ground 6, did the trial judge err by failing to have regard to Ms Butler's evidence about the force required in pushing heavy cartons across rollers. His Honour noted the evidence she gave about that which was not, of course, evidence of primary fact, but of opinion based upon her understanding of what she had been told by the appellant. As has been seen, the trial judge did not accept in its entirety that body of evidence of primary fact. He found it to be exaggerated and, as I have noted, that conclusion having been arrived at, the factual ground was very substantially cut away from the important thrust of Ms Butler's opinion in relation to the weights required to be moved and the manner in which they were required to be moved. I cannot see that any relevant aspect of Ms Butler's opinion was overlooked.

44 Finally in relation to liability, ground 7 asserts that the trial judge erred in failing to have regard, in considering the fourth particular of negligence, to what is described as the "uncontroverted fact" that the appellant was required to move cartons of meat weighing 20 kgs or more. I have, I think, sufficiently discussed this particular which, even as further particularised, to my mind, adds nothing to the other particulars of negligence. I have also made it clear that in my opinion the trial judge dealt with the essential issue of fact, whether there was a breach of the respondent's duty of care in that the system of work (not the respondent's failure to implement it or sufficiently supervise the workers as to its utilisation) was such that workers in the position of the

(Page 15)

appellant were required to move heavy weights in the form of cartons of meat in such a way as to expose them unduly to risk of injury in the absence of mechanical assistance or the assistance of other workers.

45 The trial judge rejected that view of the facts for the reasons to which I have referred. It seems to me that his Honour's conclusions were well open to him on the evidence which he accepted. I can discern no error in the decision of the trial judge that the respondent had not been established to be in breach of its duty of care in any respect relevant to the manner of receipt of the appellant's injuries.

46 That conclusion makes it strictly unnecessary to consider grounds 8 and 9. Ground 8 is concerned with the fact that at the conclusion of the evidence, defence counsel moved to amend the defence by inserting paragraph 5A, to allege:

" … the Plaintiff has failed to mitigate her loss by unreasonably refusing or failing to undergo acromioplasty surgery as recommended by an orthopaedic surgeon."

47 This refers to the evidence given by the surgeon, a Mr James. The evidence is not reproduced in the appeal book, which does not contain any of the evidence or exhibits concerned with the assessment of damages.

48 The ground complains that it had not been put to the appellant, who was no longer present at the court when the application to amend the defence was made, that she had failed to mitigate her loss by undertaking a reasonably required and available medical procedure, but no doubt it was more important that the issue, if live on the evidence, was squarely before the court by the making of appropriate amendments to the pleadings and, if further evidence by the appellant was required in relation to the issue raised, counsel could have sought leave to recall her. However that may be, the trial judge in the end did not embark upon any provisional assessment of damages and in view of my conclusion that his Honour's decision about liability is unassailable, no issue arises in relation to amendment of the pleadings in respect of the assessment of damages.

49 Ground 9 complains that his Honour erred in law in failing to undertake a provisional assessment of damages. Counsel for the appellant frankly accepted that there was no authority for the proposition that such a failure might constitute an error of law and, in my opinion, the ground cannot be made out. The appellant's claim was

(Page 16)

dismissed. It could not be a ground for setting aside that decision that the trial judge failed to make a provisional assessment of damages. This is not a case which gives rise to any need to consider that process, when it might be appropriate, or the status of an assessment so made.

50 Finally, as to costs, ground 10 complains that the trial judge erred in awarding costs to the respondent to include the costs of third party proceedings. His Honour commenced his reasons by noting that prior to the trial, by consent, the respondent's third party proceedings had been dismissed. I do not know against whom those proceedings were brought, but the trial judge had already made an order that the third parties pay the respondent's costs of the third party proceedings to be taxed. Those orders having been made, indeed by consent of the third parties, so we were informed, the order made by the trial judge that the defendant's costs of the third party proceedings should be paid by the appellant, seems to be an error. There ought to be an amendment made to the final orders made as between appellant and respondent. It should be provided that the appellant pays the respondent's costs of the action to be taxed. The words "including the costs of the third party proceedings" should be deleted. I would make that order, but I would dismiss the appeal.

51None of the grounds of appeal have been made out, in my opinion, but I would summarise my conclusions about the case by saying that the allegation of negligence depended upon the appellant establishing that the system of work of the respondent, rather than supervision of its implementation, permitted or required the appellant to perform, repeatedly, reaching, lifting and pushing heavy weights in low temperatures without warming up her body, without respite, without the assistance of other employees or without mechanical assistance, so as to unreasonably expose the appellant to risk of injury. The appellant failed to establish those matters of primary fact. There was a contrary body of evidence bearing upon these issues which the trial judge accepted, as he was entitled to do. His Honour made no error in the fact-finding process and, in my opinion, in those circumstances, the appeal must be dismissed.

52 WHEELER J: I have had the advantage of reading in draft the reasons to be delivered by Murray J. I agree with those reasons and having nothing further to add.

(Page 17)

53 HASLUCK J: I have had the advantage of reading in draft the reasons for judgment of Murray J. I consider that the appeal should be dismissed for the reasons given by his Honour.