Ayres v Australia Meat Holdings Pty Ltd
[1999] QCA 60
•9/03/1999
IN THE COURT OF APPEAL 99.60 SUPREME COURT OF QUEENSLAND Appeal No. 5404 of 1998
Brisbane
[Ayres v. Aust. Meat Holdings P/L]
BETWEEN:
GARY LINDSAY AYRES
(Plaintiff) Appellant
AND:
AUSTRALIA MEAT HOLDINGS PTY. LTD.
ACN 011 062 338
(Defendant) Respondent McPherson J.A.
Davies J.A.Mackenzie J.
Judgment delivered 9 March 1999
Judgment of the Court
APPEAL DISMISSED WITH COSTS.
CATCHWORDS:
EMPLOYMENT LAW - Breach of duty - Causation - Injury of employee - Liability of employer - Safe system of work - employer under a duty at common law and by statute to provide its employees with a safe system of work - Was there a breach of that duty and whether that breach was the cause of the employee’s disability.
March v. E. & M.H. Stramare Pty. Ltd. (1991) 171 C.L.R. 506, 536 Counsel: Mr K. Geraghty for the appellant
Mr K. Fleming Q.C., with him Mr G. Cross, for the respondentSolicitors: Shine Roche McGowan for the appellant
Thompson Hannan for the respondentHearing Date: 18 February 1999 IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5404 of 1998
Brisbane
Before McPherson J.A.
Davies J.A.
Mackenzie J.[Ayres v. Aust. Meat Holdings P/L]
BETWEEN:
GARY LINDSAY AYRES
(Plaintiff) Appellant
AND:
AUSTRALIA MEAT HOLDINGS PTY. LTD.
ACN 011 062 338
(Defendant) Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 9 March 1999
This is an appeal by the plaintiff against a judgment given in the District Court dismissing his
claim for damages for an injury alleged to have been sustained in the course of his employment with
the defendant. The plaintiff was a meatworker who, between 1989 and 1995, worked, first as a
boner and then as a slicer, at the defendant’s abattoir at Dinmore. On 18 September 1995, he
reported feeling pain in both arms, which in October was diagnosed as carpel tunnel syndrome, for
which he later underwent medical treatment including surgery. As a result, he has been unable to
continue as a meatworker. His earning capacity has been impaired and, although he has since
obtained employment in another occupation, he has suffered, and will continue to suffer, economic loss, as well as pain, suffering and loss of amenities. His total loss was assessed at trial in the
amount of $113,755 before deducting Workcover benefits already received.
On this appeal, the matters in issue are the elements of breach of duty and causation. There
is, of course, no doubt that, as an employer, the defendant was under a duty at common law and
by statute to provide its employees with a safe system of work. The principal question both at trial
and on appeal is whether the plaintiff succeeded in proving a breach of that duty; and also, although
perhaps to a lesser extent, whether that breach of duty was the cause of his disability.
The action, which was instituted in the Supreme Court, was remitted to the District Court
after pleadings had been delivered. Allegations of negligence or breach of duty and causation
appear in paras.5, 6, 7, 8, and 10 of the statement of claim. For present purposes, it is sufficient
to focus on the various sub-paragraphs of para.10, where the allegations of negligence are made
or repeated in considerable detail. They are that the defendant: (b) failed to rotate work being done
by the plaintiff through a range of different types of boning and slicing activities, so as to avoid the
kind of prolonged repetition that would cause injury to his hands, wrists or elbows; (c) failed to
provide sufficient rest periods; (d) failed to ensure that the meat being cut was thawed and not
chilled hard; (e) failed to provide the plaintiff with the opportunity to work on “easier” cuts of meat;
(f) failed to instruct on the importance of knife sharpness, or (g) to provide a range of different knife
handles; (i), (j) maintained an excessive rate of work; (k) failed to institute an early reporting
programme; and so on, through to sub-para.(r) of para.10.
In what follows, it will be necessary to set out the particulars alleged in paras.10(i), 10(j)
and 10(p). For the present, it is enough to say that the learned trial judge rejected the plaintiff’s
case in its entirety. As regards the various respects in which the defendant was alleged to have breached its duty, there were conflicts between the evidence given by the plaintiff and his supporting
witness, and the evidence given by the defendant’s witnesses at the trial. His Honour preferred the
evidence of the defendant’s witnesses. He expressly rejected the plaintiff’s testimony with respect
to each of the particulars pleaded in para.10, and, in doing so, said he did not consider the plaintiff
to be a reliable witness. On appeal, there has been no challenge to any of these findings.
The plaintiff’s submission is, however, that the trial judge failed to determine an issue, which,
had it been correctly determined, would have resulted in his claim being upheld. The issue is said
to have arisen in this way. In support of his case, the plaintiff called as a witness at the trial a Mr
O’Sullivan, who is an expert health and safety consultant. In January 1998, Mr O’Sullivan had,
after interviewing the plaintiff, prepared a 13-page report (ex.1) in which he canvassed a number
of the matters that are the subject of the particulars in para.10 of the plaintiff’s statement of claim.
He concluded his report with the reservation that his opinions were based on the assumptions set
out in the report. Those assumptions were or included the accuracy of information supplied by the
plaintiff about conditions and practices that were said to have prevailed at the meatworks during his
employment there. In his reasons for judgment, his Honour said he did not accept the report ex.1
“because it relies on information obtained in an interview with the plaintiff in 1997, over two years
after the date of the accident”; and, because he did not consider the plaintiff a reliable witness, he
did not regard Mr O’Sullivan’s report as being reliable.
On appeal, it was submitted that his Honour was wrong in rejecting that report, which was
said to contain material the significance of which the judge had failed to consider or appreciate. The
particular part of ex.1 identified as having been overlooked in this way is the following portion of
Mr O’Sullivan’s report:
“The National Code Practice for the Prevention and Management of Occupational Overuse Syndrome (October, 1990) also provides similar guidelines to the above including giving more control of work pace to workers, particularly where work is highly repetitive and prolonged, the avoidance or elimination of bonus or incentive schemes which may encourage employees to work beyond their personal limits, and other measures. The standard also recommends an adjustment period for any significant changes in work load as part of an employee’s job. Section 6 of the Standard refers to the need for early reporting of problems but also the identification of workplace factors and prompt modification of identified factors.”
To appreciate the relevance of this passage to plaintiff’s submissions before this Court, it is
necessary to refer to some of the other evidence at the trial. It was not disputed that, some time
before the plaintiff’s symptoms first appeared in September 1995 leading to the diagnosis of carpel
tunnel syndrome in October 1995, a new work schedule had been introduced for a trial period at
the defendant’s plant. Previously the employees had worked a daily shift of 7 hours on each of five
working days of a week. The new schedule involved their working a 10-hour shift on four instead
of five days a week. This gave them three days off, instead of only two, in a working week of seven
days; but it also meant they worked longer shifts on the four days on which they attended. The new
schedule was introduced after taking a vote at a meeting of workers, which the plaintiff attended and
at which he spoke. Such consultation was said to be a mandatory requirement of the relevant
industrial award or industrial agreement, which closely regulates working conditions including the
shifts and hours of work. There is evidence that compliance was closely monitored by union
representatives at the meatworks.
The new system was introduced for a trial period beginning on 15 August 1995 and it
ceased in mid-September 1995, after which the works closed. It was at that time that the plaintiff’s
ailment was first reported and identified. Paragraph 10(p) of the statement of claim refers to the
plaintiff being required to work increased hours from 15 September 1995, but this was an error for 15 August 1995. Leave to amend was given at the trial, although the amendment has never been
formally effected. There is, however, no dispute that during the period while the new work schedule
was being used, the plaintiff worked 10-hour shifts on 17 out of a total of 35 days.
The submission on appeal is that it was his having to work under this new arrangement in
August and September 1995 that triggered the plaintiff’s disability. It is, however, not the increase
in working hours from seven to 10 hours a day that is claimed to have brought about the onset of
the plaintiff’s carpel tunnel syndrome in late September 1995. Increasing the working hours is a
matter that is pleaded in para.10(p) of the statement of claim, which is a particular of negligence or
breach of duty that was found by the judge not to have been established by the plaintiff against the
defendant. Paragraph 10(p) alleges that the defendant was negligent in that it:
“(p) Required the plaintiff to work increased hours from 15 [August] 1995 when it knew or ought to have known that the plaintiff had carpal tunnel syndrome symptoms and that such symptoms would be aggravated by increased work hours.”
On appeal, counsel for the plaintiff specifically disavowed further reliance on para.10(p).
He acknowledged that it alleged no more than an increase in the total number of hours worked per
day, whereas his client’s case on appeal was, he said, based on an allegation that there was a
sudden increase in the rate at which the plaintiff was required to work, and did in fact work, during
the trial period in question. This was, he submitted, a matter that was covered by the allegations
in paras.10(i) and (j) of the statement of claim, which were also rejected by the trial judge. It is,
however, submitted that in doing so, his Honour failed to appreciate that it was the sudden increase
in the rate of work combined with the increase in the hours worked during the period from 15
August 1995, rather than in the number of hours per shift considered on its own, that was the critical
issue raised by the allegations in those two paragraphs.
In dealing with those two allegations, his Honour said:
“It is alleged in paragraph 10(i) of the Statement of Claim that the defendant maintained a speed of the boning chain which placed undue strain and pressure on the plaintiff to maintain an excessive rate of work when it knew or ought to have known that an excessive work rate was likely to cause risk of injury to the plaintiff’s hands, wrists or elbows. I am satisfied that the speed of the boning claim could go no faster than to allow a range of 60 to 75 units per person per day to go to the chain. That was the minimum and maximum tally allowed under their award. The chain in a 10 hour period was set to achieve approximately 12.5 units per person per hour. The work is processed at a similar rate now. The speed of the boning chain is set by taking into account the size and sex of the beef being boned, and the number of boners on the line. Those factors, and the speed of the chain are determined in accordance with the Award by the Union and the employer. I am not satisfied that the allegation of negligence in paragraph 10(i) of the Statement of Claim has been made out
In relation to the allegation of negligence in paragraph 10(j) of the Statement of Claim, the slicer was not directly tied to the speed of the chain as was the boner. A slicer can allow a backlog to build up on the table. If the backlog became excessive a supervisor could assign another slicer to assist to clear the backlog. I am not satisfied that this allegation of negligence in 10(j) has been established.”
The references in this passage of the reasons to “an excessive rate of work” and the speed of the
boning chain “in a 10-hour period” do not appear to bear out the contention that the judge failed
to realise that the point being made concerned the rate of the work, as distinct from the total number
of hours worked, during the trial period when the experimental 10-hour shift was being conducted.
What is said, however, is that his Honour failed to appreciate that what was being alleged in
paras.10(i) and 10(j), and what was in fact proved at the trial of the action, was that it was the work
rate increase specifically during that experimental period that precipitated the plaintiff’s disability;
and that he overlooked the passage from Mr O’Sullivan’s report ex.1 concerning the impact of a
sudden increase in the rate of work.
There was some evidence at the trial showing that the rate at which work was being done increased during the period from August 15 to September 15, 1995. From what was said by Mr Jones and Mr Donoghue, who were witnesses called by the defendant, it emerged that, after the
10 hour working day was introduced, the production rate increased to 120 units, which was well
in excess of the 60 units (minimum) required or the 75 units (maximum) permitted under the
industrial award. Making due allowance for the downtime involved in both a 7- hour day and a ten-
hour day, it can as a matter of arithmetic be calculated that the rate of work during the trial period
increased by a factor of about 40%, or, as the defendant on appeal preferred to express it,
somewhere between 15% and 44% depending on various other factors involved. Calculations like
these presuppose, of course, that other matters, such as the size of the workforce engaged in
production during the period, remained as before; but such an assumption is probably legitimate
even in the absence of direct evidence about it at the trial.
For the plaintiff to succeed, it is, however, not enough to show that there was an increase
in the production rate while he was working during the trial period and that his disability appeared
soon afterwards. It is also necessary to establish on the evidence at the trial: (1) that the injury he
sustained was caused by the sudden increase in work rate; and (2) that the defendant ought
reasonably to have foreseen, and to have taken precautions to avoid or diminish, the risk of injury
resulting from that increase in the rate.
The problem for the plaintiff at this juncture is that the evidence relevant to both of these
issues, and especially the second, is slender. It may for present purposes be accepted that there
was evidence justifying an inference that the increased rate of production was either the or at least
a cause of the plaintiff’s disability. The pain in his arms and wrists became more severe while he
was working the longer shifts until he was no longer able to work at his job. When he reported it
to the medical staff at the place of his employment, he was advised that he was suffering from carpel tunnel syndrome and that he would have to undergo a surgical operation. This preliminary diagnosis
was confirmed by a specialist Dr Edwards on 25 October 1995. The appellant was advised it was
permanent, and that he should not return to the same kind of work. It is not always possible in
cases of this kind to completely isolate the question of cause of the injury from the question whether
there has been a breach of the duty to avoid or provide against it. However, in March v. E. &
M.H. Stramare Pty. Ltd. (1991) 171 C.L.R. 506, 536, McHugh J. said:
“When a defendant has a duty to a plaintiff to prevent the occurrence of damage of the kind which occurred and the defendant’s breach of duty was a cause of that damage, the damage will be held to be within the scope of the risk which the defendant was required to avoid unless ... the damage occurred in a manner which could not reasonably be foreseen in a general way.”
In the present case, the principal question whether the plaintiff’s injury is one that the defendant
ought reasonably to have foreseen as a result of a sudden increase in the rate or intensity of the
work during the period when the 10-hour shift was being worked in August-September 1995; and,
if so, what should have been done to prevent its occurring.
The disability is one that is not readily foreseeable. There is expert opinion that only about
1% of the population is predisposed to carpel tunnel syndrome. The condition may be precipitated
at any time by sustained periods of repetitive and intense hand and wrist movements at work or at
home; but there is no means of knowing in advance that a particular individual is vulnerable until the
syndrome manifests itself, and, once it occurs, there is no means of reversing it. What is submitted
here, however, is that the defendant might have avoided the onset of the syndrome in the plaintiff
if it had followed the recommendation in the National Code Practice for the Prevention and
Management of Occupational Overuse Syndrome referred to by Mr O’Sullivan in his report (ex.1),
of which the relevant extract is set out in para.6 of these reasons. More particularly, what is submitted is that the plaintiff could have avoided it by introducing the plaintiff to the 10-hour shift
system gradually, as recommended in that Code of Practice.
A major weakness in the plaintiff’s submission on this point is that the terms of the relevant
standard in the National Code Practice, or the version of it given in Mr O’Sullivan’s report ex.1,
are not unambiguous. According to what is said of it in ex.1, the standard “recommends an
adjustment period for any significant changes in work load, as part of an employee’s job”. One
question this raises is what is meant by “an adjustment period” in this context, and what the rationale
for it is. On one view it may refer (as the plaintiff contends it does) to a period of gradual, rather
than a sudden, introduction to the change, which would enable the employee to learn to cope
physically with an increased work rate. It may, however, equally be directed to the need to allow
for a period of mental or other form of adjustment to the change over to a faster rate of work or
simply to the increased overall workload. Other interpretations of the passage are possible, making
it difficult to be sure which of them is being referred to in the passage relied on from ex.1. Nor is
it altogether clear that the standard is concerned with the kind of repetitive strain that is liable to
precipitate carpel tunnel syndrome in an individual who is predisposed to it; or, again, whether a
period of gradual adjustment would succeed in avoiding its onset. It is to be regretted that the
relevant extract from the National Code Practice is not quoted verbatim in ex.1. There is in
evidence a full copy of the National Code of Practice; it is however not the 1990 edition referred
to by Mr O’Sullivan but the 1994 edition, which contains nothing that can be identified as the
passage referred to in ex.1. Because the experimental 10-hour shift was instituted in August 1995,
the relevant version would in fact have been the 1994 edition rather than the 1990 edition. Breach
by the defendant of its duty of care is not established by showing that it failed to act on a recommendation that does not in fact appear in the currently applicable national guideline, or on a
recommendation in an earlier edition that is in a form that leaves its meaning or purpose uncertain.
In recommending a period of adjustment to the significant changes in work load, the standard in
the National Code Practice of 1990 may not have been directed to averting an injury like carpel
tunnel syndrome at all.
There was, however, some other evidence at the trial which is said to show that the
defendant unreasonably failed to foresee or take precautions to prevent or cater for the risk of an
injury like that sustained by the plaintiff here. In giving his evidence, Mr O’Sullivan referred to an
extract from an American occupational safety journal which he said discussed an increase in the
1990s and early 1980s of the incidence of cumulative trauma disorders, and which, the journal
remarked, led to carpel tunnel syndrome becoming “common vocabulary”. Continuing his evidence,
Mr O’Sullivan remarked:
“There’s a recognition there that that increase in work rate probably had a lot to do with that increase in the incidence. That fits in with all the other recognised guidelines on overuse injury and repetition rate, that frequency rate, and so on that aren’t critical or key issues in the degree of risk.”
On behalf of the plaintiff on appeal, Mr Geraghty suggested that the word “aren’t” in this passage
of the evidence should be read as “are”. That may well be so; although it is not possible to be sure
about it. The error in the evidence, or in the recording or transcription of it, if that is what it was,
was not corrected by counsel then or later, although it may be noted that the evidence was given
shortly before the adjournment at the end of the first day of what became a three day trial.
Apart from this, the only evidence potentially relevant to the point in issue is a statement in
a written report dated 20 January 1998 from Dr Morley, consultant neurologist, who gave evidence
for the plaintiff at the trial. Reporting on the change to 10-hour shifts for four days “instead of five days of 8 hours”, Dr Morley said it was “more probable than not that this additional two hours per
day significantly increased the injurious effect on your client’s tendons and its sheaths, in the
production of his carpel tunnel syndrome”. On its face, however, this is a reference to the effects
of an increase in the number of hours worked, and not to an increase in the rate of the work done,
which is what is now relied on in the appeal. As it happens, Dr Morley’s evidence was, in any
event, not accepted by the trial judge.
Other than that, the only reference at the trial to the impact of the increase in the work rate
appears in the cross-examination of Dr Jenkins, who is an engineering expert who gave evidence
for the defendant. The relevant passages of his evidence are as follows:
“Can you comment on a system where someone might be working doing 60 - or meat workers doing 60 units a day and then go up to 120 units a day, something like that? Would you regard that as being good work practice ? --- That is obviously a very substantial increase. 120 odd - that is in a day of extended working hours, is it?
Yes, in a 10 hour day or nine hours 15, whatever it is ? --- The significant factor I would like to say is the number of units per hour. So I am not quite sure how that relates. If the number of units per hour were the same, then I would believe that the strenuousness and the other factors of the work would be the same. There would be a cumulative fatigue effect, which we have just talked about, because it was being done over a longer period of time. On the other hand, if the number of units per hour actually increased, then obviously the number of repetitive movements all the rest of it would be increased.
And that wouldn’t be good work practice ? --- I hesitate to use those sorts of terms but provided that it is within the capacity of people to carry out the work, then I wouldn’t say it is either good or bad work practice. Certainly if it got beyond the capability of people to deal with, that would not be good work practice.”
The most that can be deduced from this is that an increase in the rate of work would increase the
number of repetitive movements, which, as Dr Jenkins said, is “obvious”. He was not prepared to
characterise it as either “bad practice” or not “good practice”, adopting instead the view that it depended on the capacity of particular individuals to cope with such an increase. His evidence as
it stands does not bear on the question here, which is whether an employer in the position of the
defendant ought reasonably to have foreseen that an injury of the kind sustained by the plaintiff was
likely to ensue from a sudden increase in the work rate. In that regard, it may be added that the
plaintiff was, at the time, employed as a slicer, and that, as the judge mentioned in his reasons, a
slicer is, unlike a boner, not directly tied to the speed of the chain of workers. A slicer, his Honour
found, could allow a backlog to build up on the table; and, if it became excessive, a supervisor
could assign another slicer to assist in clearing the backlog. Whether, during the relevant period,
that procedure was in fact followed in the case of the plaintiff we do not know; but, if it was, the
significance as a cause of the injury of the increase in production from which the increased work rate
has been calculated would be greatly diminished. It was for that reason that, in the passage quoted
earlier from the reasons of the trial judge, his Honour discounted the increase in work rate alleged
in para.10(j) as the cause of the plaintiff’s injury.
It is a serious shortcoming in the way the case is now being presented on appeal that, with
respect to the issue now raised, it does not appear to have been presented with the same degree
of precision at the trial. In the court below, the substantial issues litigated were those alleged in
each of the particulars in paras.10 (b) to 10(r), as to each of which the plaintiff failed. The case
against the defendant based on a sudden increase in the work rate during the 10-hour shift period
emerged, if at all, only at one point in Mr O’Sullivan’s report, and possibly in that part of his oral
evidence in which the word “aren’t” appears. In cross-examining the expert witnesses called for
the defendant, it was not put to them that it was the increased work rate during the relevant period
that caused the carpel tunnel syndrome. To this there may be a partial exception in the case of Dr Jenkins; but even in that instance it was not put to him directly for his comment that there had been
a 40% increase in the rate of production and consequently in the plaintiff’s work rate during that
period.
From what we were told on appeal, it seems that counsel for the defendant was not aware
that the plaintiff was intending to make out a case based on the impact of the work rate increase
during the 10-hour shift period, and that his written submissions make no reference to the matter.
Mr Geraghty in his written address at the trial submitted:
“... it was clear that a major causative factor for the relevant onset of carpel tunnel syndrome, namely the onset that was so serious as to require surgery and which did not recover after rest, was caused by the 10-hour trial, in other words, by the gross increase in speed of work, volume of work and duration of work, during that period”.
It may be noted that, even in the context of the 10-hour shift trial, the onset of the syndrome is there
attributed to a combination of factors, and that the need for an adjustment period is not mentioned.
The question is, however, not whether something was said about it in the written addresses
furnished to the judge at the end of a three day trial, which was taken up with other issues on which
the plaintiff failed; but whether the issue now raised on appeal was pleaded in a way that enabled
it to be identified as an issue at the trial. As to that, paras.10(i) and 10(j) of the statement of claim
alleged that the defendant was negligent in that it:
“(i)
Maintained a speed of the boning chain which placed undue strain and pressure on the plaintiff to maintain an excessive rate of work when it knew or ought to have known that an excessive work rate was likely to cause risk of injury to the plaintiff’s hands, wrists or elbows;
(j)
Maintained a speed at the slicing table which placed undue strain and pressure on the plaintiff to maintain an excessive rate of work when it knew or ought to have known that an excessive work rate was likely to cause risk of injury to the plaintiff’s hands, wrists or elbows”.
It is impossible, on reading those two paragraphs of the statement of claim, to avoid the
impression that they do not, and are not intended, to refer specifically to the period of the 10-hour
shift trial. In both paragraphs, the form of the allegation is quite general, and in each instance it
begins with the word “maintained” rather than “introduced” or “initiated”. In para.10(i) and
para.10(j) there is no explicit reference, as there is in para.10(p), limiting the alleged increase to the
period “from 15 August 1995", when the new work schedule was introduced. In the form in which
they are pleaded there is nothing in either of the two paragraphs to suggest it was during that specific
and limited trial period that the work rate became excessive, or that the defendant ought to have
known that the sudden or any increase in work rate during that relatively short period was likely to
cause injury to the plaintiff’s hands, wrists or elbows. His Honour in fact determined the issue in the
general form in which those allegations stood at the trial and as they stand now. On appeal, they
still do not refer to the introduction of the 10-hour shift as the particular event that is alleged to have
triggered the plaintiff’s disability. At no time has any application been made to amend them in any
way.
In their current form, paras.10(i) and 10(j) do not raise the question which it is sought to
litigate on appeal. This is not a matter of pedantic insistence on perfection or precision of pleading.
If the issue had been distinctly raised in paras.10(i) and 10(j), one might reasonably expect that it
would have been fully litigated, with evidence and cross-examination being directed to it at the trial.
As a matter of natural justice, the defendant was entitled to an opportunity to prepare for and meet
the issue at the trial as fully and completely as it evidently did with respect to the other allegations
in para.10 of the statement of claim. As it is, the particular issue was not specifically raised, if in fact it ever was, until the written address of counsel for the plaintiff was given to the trial judge after all
the evidence had been taken at the trial and the cases of both parties had been closed.
The conclusion from all this therefore is that the evidence at the trial was not sufficient to
establish that the defendant breached its duty to the plaintiff by suddenly increasing the work rate,
or permitting it to increase, during the period between 15 August and 15 September 1995 so as to
cause the plaintiff’s injury; but, in any event, such a breach of duty was not raised by the pleadings
or otherwise litigated as an issue at the trial. It cannot and should not now be determined for the
first time on appeal.
The appeal should be dismissed with costs.
0
0
0