Caldecoat, Matthew Charles v Penney and Lang Pty Ltd

[2009] VCC 1485

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION

DAMAGES AND COMPENSATION LIST

Case No. CI-07-05137

MATTHEW CHARLES CALDECOAT	Plaintiff
v
PENNEY & LANG PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Ballarat
DATE OF HEARING:	7, 8, 9 and 10 September 2009
DATE OF JUDGMENT:	16 September 2009
CASE MAY BE CITED AS:	Caldecoat, Matthew Charles v Penney & Lang Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1485

REASONS FOR JUDGMENT

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Catchwords: Bilateral shoulder injury suffered in the course of employment – heavy and repetitive work in an abattoir – claim for damages at common law for breach of duty of care, and breach of Occupational Health & Safety (Manual Handling) Regulations 1999.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J A Jordon SC with	Slater & Gordon
Mr M S Nightingale
For the Defendant	Mr M R Titshall QC with	Herbert Geer
Mr I S Gourlay
HIS HONOUR:

Preliminary

1          The plaintiff suffered bilateral injury to his shoulders as a result of his employment with the defendant, particularly in late 2002 when he was working at the defendant’s abattoir on a job known as “long hooking”.

2          The proceeding sought pain and suffering damages at common law for the injury sustained, claiming the defendant was in breach of its employer’s duty to take reasonable care for the plaintiff’s safety, and further for breach of the provisions of the Occupational Health & Safety (Manual Handling) Regulations 1999 (“the Regulations”).

3          The trial commenced on 7 September 2009 with a jury. For reasons given in my Ruling of 10 September 1999, I discharged the jury. The parties agreed that I should continue to hear the matter as a cause.

4          By his Statement of Claim, the plaintiff alleged:

•  During the course of his employment with the defendant from late 2001 up to and including 2005, he carried out constant heavy and repetitive work at a rapid rate.

•  As a result of that work he suffered injury, being bilateral rotator cuff tendonitis, which required bilateral shoulder surgery. He claims also to have developed a psychological reaction.

•  The injury was caused by the negligence of the defendant in, inter alia:

ƒ	failing to provide a safe system and safe place of work;
ƒ	requiring the plaintiff to work at too great a rate;

ƒ requiring the plaintiff to carry out work which was unreasonable

repetitive, forceful, stressful and strenuous;

ƒ	failing to devise and implement an adequate system of job rotation;
ƒ	failing to provide any adequate breaks;
ƒ	requiring the plaintiff to manually lift unsafe weights;
ƒ	failing to provide appropriate mechanical or manual assistance;
ƒ	failing to heed the occurrence of injury to other employees on the production line;
ƒ	failing to comply with the Regulations.

• Further, the plaintiff alleges that his injury arose as a result of the breach of the Regulations.

The defendant, by its Defence denied negligence, denied any breach of the Regulations and did not admit the plaintiff’s injury. It further pleaded contributory negligence, but that pleading was withdrawn before trial.

5          On 10 September 2009, Mr Titshall made application that there was no evidence of any breach of the Regulations and the matter should not therefore go before the jury (at that point, a jury was still empanelled). For reasons set forth in my Ruling of 10 September 2009, I found there was sufficient evidence upon which a finding of breach of the Regulations could be made.

The Evidence

6          Evidence was given by a number of co-employees of the plaintiff. Russell James Barling (“Barling”) worked with the defendant for fifteen years up until 2005 as a slaughterman. He described the work known as “long hooking”. At the defendant’s abattoir, there was a long line of workmen involved in various tasks relating to the butchering of lambs and sheep. Generally the work was heavy. There were between 1,500 and 1,800 sheep processed on the line each day. The task of long hooking was at the beginning of the line and required the worker to punch a large hook[1] through one of the rear legs of the beast above the knee, and then to pull the beast up and affix the long hook to the moving line (“the line”). At the same time another hook, known as the “short hook” which had already secured the beast to the line was released. In that process Barling said that the long hooker took “half the weight of the beast to hang it up there”.[2] He said the lambs weighed about 80 pounds, and the larger rams about 150 pounds.

[1]             Exhibit A

[2]             T 40.10

7          There was no rotation of duties. Work started at about 6.30 in the morning and went to 1.00 or 1.30 pm. There was half an hour break for lunch, and a smoko break each hour for several minutes. He was the health and safety officer at the abattoir. The business closed down in 2005.

8          Prior to that, he said there were complaints about WorkCare injuries.[3] There were also complaints about rotation of duties as some people on the line would not swap. Some people would walk out and not come back if they were asked to swap to the job of long hooking. He recalled the plaintiff working as a long hooker during his time.

[3]             T 42.8

9          In cross-examination, he agreed that the plaintiff, in addition to his duties a long hooker did various other tasks, including sweeping the floor, working as a “changeover” and “spreader”. The plaintiff also worked at some point in the fridges. He said he had seen the plaintiff have some difficulty with the job when a beast fell to the ground.

10        The largest number of persons working on the line he could recall was twenty- three butchers. Sometimes there were as many as 2,300 sheep done, and sometimes as few as 960.

11        In the last years of the job he recalled an hydraulic system which enabled the rail upon which the hooks were loaded to be lowered to reduce the taking of weight in the long hooking process.

12        Evidence was given by James Britain, a union organiser over a period of nineteen years. He was not employed by the defendant, but the areas that he covered included the defendant’s abattoir near Maryborough. He said in the five years before 2001 he would have been at the abattoir premises on forty or so occasions and was familiar with the operation there.

13        He said that the system of work at the abattoir was old. He met with workers to receive complaints about work and would discuss them with management, including Stan Lang and Darren Curtis. The complaints were in relation to the volume of work, the system of work, the pay received and injuries suffered to workers, including to arms, backs and shoulders. There was a lack of rotation and this was communicated to management.[4]

[4]             T 70

14        The job of long hooking was one of the hardest jobs in the abattoir. In the five years up to 2005 there were five or six other abattoirs which he visited which had an hydraulic lifting device in place which lowered the line and made the lifting part of the long hooking easier.

15        The plaintiff gave evidence and was cross-examined. He is now forty-one years. He left school and did not finish Year 11. He principally worked as a labourer during his working life in metal and other blue-collar industries. He had earlier health problems, including asthma from a young age, has been partially deaf since birth, suffered injuries in various car accidents and an assault where he suffered an injury to his head. He had periods of unemployment.

16        In 1999 or 2000, he was working at a gold mine, but this shut down. He commenced at the defendant’s abattoir in October 2001 as a casual worker. He would go to the gate each day and wait to see whether he was accepted for work. Most of the time he was.

17        He described the job of long hooking. It was necessary to drive a long hook[5] into the beast above the knee and then swing and lift the trailing leg up onto the line, flicking the other short hook off. There was a knack to the swing and lift. On occasions the carcass would drop to the ground and have to be put back onto the line. The weight of the beasts was between 40 and 100 kilograms.

[5]             Exhibit A

18        He was working on the job of long hooking for a week or a week and a half. If he was working on that job, he worked all day. In late 2002, after working on the job for a week and a half, he got pain at the top of his right shoulder and thought he had pulled a muscle. There were no rotations on the job and he started work at 6.00 am and worked through to 1.00 o’clock or so. He never complained about the fact that there was no rotation of this job, although there was rotation of other jobs. He enjoyed the job as it helped him build up muscle strength. When he had problems with his right shoulder he went to the foreman, Kevin Harrison, who told him to finish work that day and then put him on a different job working on kidneys. After a short period he went to his doctor, Dr Pickavance, of Maryborough. He received painkilling medication, was referred for physiotherapy and massage. After that time, save for a week later on, he did not go back to the job of long hooking. At the outset the pain was predominantly in his right shoulder, but a short time later he also had it in his left shoulder.

19        Dr Pickavance certified him as fit for light duties.

20        The pain continued, and he was referred to Mr Dugal James, an orthopaedic surgeon. There was surgery to his right shoulder firstly in October 2003. He was in hospital overnight and was off work for four or five weeks. He had physiotherapy and hydrotherapy once a week over the four or five months after surgery. There was some improvement in his arm but he still had pain which has continued through to the present time in the right shoulder. His left shoulder was still causing difficulty and Mr James operated on the left shoulder in February 2004. There was a similar period in hospital, and similar rehabilitation. Again he returned to work on very light duties. He was prescribed pain-relieving medication. The abattoirs closed down in August 2005 when he was still working on light duties. At that time an hydraulic device had been installed which lowered the line and made the lifting in the long hooking task easier. He became depressed and received treatment from Dr Rajagopalan, psychiatrist, which he found helpful.

21        The physiotherapy treatment continued. He obtained a forklift driver’s licence in an attempt to get work but was unable to do so. He moved to his parents’ bush block at Dunolly where he had previously lived as he could not afford the rent living in town. While living at this block, he was obliged to chop wood, cart water and use a generator.

22        He has worked on cars, which has been a hobby in the past, and makes model planes.

23        A year or two ago his mother purchased a second-hand excavator which he thought he might be able to obtain employment with. After five hours’ work his shoulders became very painful and he was unable to continue. It was difficult to operate the leavers.

24        Before the injury, he was not particularly interested in sport but played some golf, darts and pool at the local hotel. He does not pursue these activities now. He has little social life, is depressed and wishes he had a job. He has pain most of the time in his shoulders. Sometimes it is unbearable. For about a year he used morphine-based patches but these caused a skin reaction. He now takes morphine tablets, two a day.

25        He previously had a significant problem with drugs and alcohol. He does not take drugs now and drinks very little.

26        In cross-examination, he admitted that from the age of sixteen he was smoking 1.5 grams of marijuana a day, and consuming approximately a slab of beer between the ages of eighteen and twenty-seven. He tried heroin, ecstasy, cocaine and acid in his younger days. He was addicted to speed for three years.

27        Over the years 1993 to 2001, he lived on his parents’ bush block. He was cross-examined extensively about the work which he undertook, including carting jerry cans of petrol to the service station and back and filling his generator, taking gas bottles to town and returning with them filled, and carting water in a pram from a tank several hundred metres away from where he lived. He also chopped and split firewood, although of more recent times he has a friend who helps. He agreed he last played darts in 2000 or 2001 and golf in 2001 or 2002, with only occasional rounds.

28        In terms of his current activities, he drives to and around Dunolly and from time to time to Melbourne to see his mother and to Charlton to see his father. He has driven to Queensland to see his sisters. He has applied for work at Maryborough driving forklifts but was not accepted.

29        Apart from seeing his general practitioner the only other treatment he receives is from his psychiatrist, Dr Rajagopalan, who he sees every few months. Dr Rajagopalan’s treatment has also been in relation to his use of alcohol and marijuana.

30        He was a casual worker from late 2001 to late 2002. He would turn up at the gate each morning and most of the time he obtained work. That work included tasks on the floor, including long hooking, sweeping, cleaning of the carcasses, spreading, and work on the kidneys, heads and neck.

31        His first permanent job was long hooking. He also did a job called changeovers.

32        He described precisely the movements involved in long hooking.[6] He agreed that for most of the time involved, the weight of the beast was supported by the short hook which was already on the line. There was never a time when he held the whole weight of the beast. It was either on the long hook or the short hook. He estimated there would be between 1000 and 2000 sheep pass along the line per shift, sometimes less. He liked the work as he had previously exercised regularly in a gymnasium, and was able to lift weights of up to 160 kilograms.

[6]             T 154, L18-31

33        When he started in the job he would occasionally do the long hooking work, but always with a day’s break to do other jobs. On a few occasions he worked two or three days in a row long hooking.

34        Paul Smith (“Smith”) gave evidence. He worked at the defendant’s premises over the period from 2000 to 2002. He worked in a variety of jobs, in fact twenty-eight or so. He said long hooking was the hardest and the heaviest job at the abattoir. There was no rotation of this job. Each day on the line between 1000 and 2500 beasts were butchered. The line was very busy.

35        He made various complaints to management, including to Shane Brennan, Darren Curtis, Tom Lang and Kevin Harris. For a time he was supervisor. He suggested that there be two persons doing the long hooking job so that one could get a break. He was advised that that meant the company would have to pay two wages.

36        He had been at a Daylesford abattoir for a short period and had seen two long hookers working.

37        He asked management about occupational health and safety assessments, but he got nowhere because “if you opened your mouth you were given the boot”. He said the plaintiff was a competent worker as he had the knack of long hooking. He had done some long hooking over about four months and found it very difficult. In 2001, he went to the boning room which was on a different floor. He returned to the floor on which the plaintiff worked from time to time to help out.

38        The plaintiff’s general practitioner, Dr Michael Pickavance, gave evidence. He first saw the plaintiff in 2001 for various injuries and saw him about his shoulder problems for the first time in December 2002. At that time the plaintiff complained of about a week of pain, first in the left shoulder and then the right. He gave a history that he was dealing with 500 animals a day. When he examined the plaintiff he had a full range of movement in the shoulders. Dr Pickavance certified the plaintiff as fit to perform only light duties and not to work above shoulder height. He prescribed painkilling medication and sent him to a physiotherapist. The plaintiff improved in January 2003 and an ultrasound of the shoulders at that time showed inflammation of the supraspinatus tendon. The tendon was part of the rotator cuff area of the shoulder which included muscles, tendons and ligaments. He thought the inflammation was due to heavy and repetitive work at the abattoirs. He referred the plaintiff to Mr James, surgeon. Aside from a period after each of the operations, he continued to certify the plaintiff as fit for light duties up until his employment was terminated. Because of problems with pain in his shoulders, and depression, he certified the plaintiff as being unfit for all duties from May 2006 to October 2006.

39        He has treated the plaintiff over the years with painkilling medication and anti- inflammatories. When he saw the plaintiff in April of this year, there was a continuation of the ongoing pain in each of the rotator cuffs. The plaintiff had been prescribed Norspan patches, a narcotic analgesic. There was a skin reaction, and he has recently prescribed OxyContin, a morphine-based painkilling medication, and also anti-depressants. He received a history of pain from the plaintiff continuing during the day and at night. His mood was stabilised but depressed. He thought the plaintiff would continue to suffer pain for most of his life and that he would be unable to return to any manual work. He referred the plaintiff for further physiotherapy and acupuncture in 2008. The last certificate for work he issued restricted the plaintiff’s duties to lifting of no more than 2 kilograms, and no repetitive nor heavy processing work. He thought there was no prospect for improvement. He agreed in cross- examination that generally the plaintiff had a good range of movement and he had not checked this for a considerable period. He said the plaintiff’s depression had been severe at times but that the depression was caused in part because of the plaintiff’s previous alcohol and marijuana use. He said he thought the plaintiff would be able to chop wood, use a chainsaw and perform various other tasks on his property, but that he would find it painful.

40        He had treated many workers from the abattoir and had inspected the work at a worksite visit. He thought the job of long hooking would predispose workers to shoulder injury. He thought it was unlikely the plaintiff would improve into the future but was unable to say that the condition would deteriorate.

41        Mr Dugal James, treating orthopaedic surgeon, gave evidence. He first saw the plaintiff in February 2003 with a history of painful right and left shoulders relating to heavy lifting at work. Upon examination, there was a full range of movement, but with a painful arc. He thought there was bilateral rotator cuff tendonitis which was an inflammation of the tendons of the rotator cuff. Mr James gave a comprehensive description of how the inflammation occurred, the description in the various ultrasound investigations, and the surgery that he performed. He confirmed there was no tear to the tendon, nor any sign of arthritis. Initially he injected the shoulders with steroid and local anaesthetic in an attempt to reduce inflammation. The symptoms persisted, and he proceeded to surgery, first to the right shoulder, and then the left. The surgery to each shoulder was a subacromial decompression. It was performed via a keyhole and the intention was to open the space surrounding the tendon and lessen the pressure upon it. He shaved a small area off the bone of the acromion and resected the coraco ligament. After review, the plaintiff had made reasonable progress. He was optimistic for a return to work.

42        The plaintiff was pleased with the surgery to the right shoulder, and returned in February 2004 for surgery to the left. There were the same findings in the left shoulder as for the right.

43        Surgery to the left shoulder was successful and upon review the plaintiff described improvement in the left shoulder.

44        He said it was common for rotator cuff tendonitis to recur, usually after some forceful incident, or repetitive task.

45        He did not think there would be any need for further surgery and that the residual problems from which the plaintiff was suffering related to inflammation of the tendons. His last review was December 2005, but this was not related to the shoulder pain as such. He thought the plaintiff would not be capable of heavy, forceful tasks, particularly at shoulder level and above. He would be able to do work at bench heights providing it was not forceful. He did not think there would be long-term deterioration of the shoulder as there was no arthritis of any significance. He said there may be periodic deterioration and exacerbation. He thought the symptoms would be minimal providing the plaintiff avoided forceful work at and above shoulder height. He was not aware of any significant impact upon the plaintiff’s social and domestic tasks. He thought the plaintiff was well-motivated to return to work.

46        The plaintiff’s mother, Sandra Caldecoat, gave evidence. She noted the plaintiff had struggled at school and had spent most of his working life in manual jobs. He had been unemployed on some occasions, but for most of his life he was in full employment.

47        She said her son had loved his job at the abattoir. There had been a significant change to him since he had been injured. He had problems in his earlier life. At the present time she said that things were very difficult for her son. He led a hermit type existence. She had attempted to assist him and bought an excavator. He had tried to use it but his arms became painful. At the present time she sees him every few weeks, and speaks to him via phone. She said be became very ill when he was taking morphine patches. She has observed him when in pain and he did not seem to cope. He could do various things around the property, but not for long periods of time.

48        She acknowledged that her son had had difficulties with drugs, but she had not been aware of the extent of the problem.

49        She said that he had various friends in the area who helped him out with tasks on the property, although he did quite a lot himself.

50        Evidence was given by Mr Schofield, consultant orthopaedic surgeon. He obtained a history of the job of long hooking, and of the onset of pain in the shoulders in approximately November 2002. When he examined the plaintiff earlier this year, he noted ongoing complaint of pain in both shoulders, the right being worse than the left, despite there being some early relief from surgery to each shoulder. Examination of various x-rays and ultrasounds did not disclose any tear to the shoulder area, nor any evidence of arthritis. He noted fluid in the bursar as a result of bursitis. He concluded the plaintiff had suffered a soft tissue injury and capsular inflammation to the shoulders. The ligaments had remained intact, but there had been tendonitis, and bursitis.

51        He thought the plaintiff should undergo an MRI scan of each shoulder to more clearly assess the pathology and to determine the reason for the ongoing stiffness and pain. He considered the plaintiff was not fit for pre-injury duties but was fit for work of a restricted nature where there was no heavy lifting nor repetitive movement of the arms, particularly above shoulder level.

52        At the conclusion of evidence, Mr Titshall admitted that the plaintiff had been seen and examined by the following consultant specialists:

• Mr Buzzard, general surgeon – 18 February 2003

• Dr A Miller, occupational health consultant – November 2004 and August 2006

• Mr G Moran, orthopaedic surgeon – February 2007

• Mr Michael Shannon, orthopaedic surgeon – July 2007 and November 2008.

53        Mr Titshall, on behalf of the defendant, called no evidence.

Submissions on behalf of the Plaintiff

54        Mr Jordon submitted that the plaintiff’s work for the defendant was heavy and arduous. He undertook a job that no one else at the abattoirs wanted to do. He said that the particular job was the subject of significant complaint by Barling, Britain and Smith to management. The complaints related to the weights being lifted, the fact that there was no rotation of work in the long hooking job, and that many persons refused to undertake the work. Therefore there was a system of work, said Mr Jordan, which was heavy, repetitive and on no occasion were these complaints addressed by the employer. In fact there was no evidence from the employer at all.

55        There were alternatives open to the employer to improve the system, including the imposition of an hydraulic lift, rotation of duties and by using two men on the long hooking job instead of one. The employer’s duty to take reasonable care was clearly breached. Mr Jordon said that the long hooking job at the abattoir was extremely heavy, nine on a scale of ten. This particularly ought to have heightened the awareness of the employer as to the risk of injury.

56        As to damages, Mr Jordon submitted the plaintiff had suffered a significant injury to each shoulder. While he said there was an element of depression as a result of the plaintiff failing to be able to obtain employment, principally the case was presented on the grounds of the plaintiff’s organic injuries.

57        He said the plaintiff had few skills, a poor education and physical work had been part of his life. It was acknowledged that the plaintiff did not enjoy many sporting, recreational and social pursuits and pastimes before injury, but now he was left without a job, and living a desolate and hermit-like existence.

58        He pointed to the medical evidence, particularly the general practitioner and Mr James. The plaintiff had a range of treatment, including surgery, injections to the shoulders, physiotherapy and acupuncture.

59        He was left with tendonitis or bursitis in the shoulders which caused ongoing pain, and required powerful pain-relieving medication. The situation was permanent, and unlikely to improve.

60        He pointed particularly to the fact that the plaintiff was a relatively young man and that the injury affected both his upper limbs so that he could not gain any relief whenever he used them.

61        He accepted that the plaintiff did do a range of activities at his property but required strong pain-relieving medication. In these circumstances he submitted that pain and suffering damages in the range of $150,000 to $175,000 was appropriate.

Submissions on behalf of the Defendant

62        In terms of liability, Mr Titshall submitted that while the task was a strenuous and even arduous one, there were very few jobs in an abattoir which did not fit that category.

63        He said that during the course of the plaintiff’s first period of casual employment, he did the long hooking work but his duties were rotated, in that he did not do the job for more than a day at a time. In fact, he had been working in the job for a week to a week and a half when the injury occurred. This was a particularly short period. He said it was important to note that the plaintiff himself had made no complaint, rather the opposite, he enjoyed the work.

64        He submitted that careful examination of the evidence concerning the heavy nature of the lift was required.[7] He said it was clear that at no time during the course of the lift did the plaintiff take the full weight of the beast. In fact, according to the evidence, all he had to do was swing the beast up, and the weight was taken by the small hook which was already in place on the line.

[7]             T 154-5

65        He submitted that evidence by many of the plaintiff’s co-workers, including Smith and Barling, was unreliable, particularly in the light of the fact that there was no complaint nor concern by the plaintiff about the work he was undertaking. There were varying assessments of the number of beasts undertaken each day, and a significant difference between many of the witnesses. Some said 500 per day, and up to 2,300 per day. In all the circumstances, he submitted that the defendant was only required to provide a system which was reasonable, and not perfect. The system supplied by the defendant was reasonable in the circumstances.

66        As to damages, Mr Titshall submitted that much of the evidence of Mr Schofield was speculative. He speculated that an MRI scan would reveal some further pathology.

67        He said there was very little evidence of any treatment of the plaintiff after the second operation, and between 2005 and 2009. He noted the plaintiff drove regularly, and according to the evidence of his mother had driven to Queensland on a number of occasions. He regularly drove to Melbourne, to nearby towns and around his premises.

68        Mr Titshall submitted that the plaintiff led an active lifestyle. Until recently, he regularly used a chainsaw and split wood. He agreed that he carried jerry cans filled with petrol, gas bottles and carted water. There was very little difference between his activities now, as before injury. It was inappropriate to classify the plaintiff as living as a hermit, as he had, for many years before injury lived in the same circumstances. His recreational and sporting activities, including golf, billiards and darts were only very occasionally enjoyed before injury.

69        He noted that the evidence of both the general practitioner and Mr James was that there were no tears to the rotator cuff tendons, nor any evidence of arthritis. After each of the arthroscopic surgical procedures, there was good range of movement, good progress and the plaintiff, at an earlier time, was taking only ‘over the counter’ pain-relieving medication. At best, the plaintiff suffered some exacerbation of his tendonitis.

70        Mr Titshall submitted that the plaintiff had a varied employment career. He had periods away from work, and had had significant difficulties with alcohol and drug addiction over the years. He was certified by each of the doctors as being capable of light duties, but had made only perfunctory attempts at employment since 2005.

71        He submitted that damages in the range of $50,000 was appropriate.

Conclusions as to Liability

72        The plaintiff commenced work with the defendant on a casual basis in approximately October 2001. From that time for approximately a year he would attend each day at the defendant’s premises and usually obtain work. This work was of a general labouring nature, and comprised of a range of jobs and activities on the abattoir floor. Included amongst these was the job of long hooking. When he did do this work as a casual, he did not do it over any continuous period.

73        He became permanent in October 2002. At about that time, he worked for a period of approximately a week and a half doing long hooking each day. There were no rotating duties during the course of a day, and if he was assigned the job, he would do it over seven or eight hours.

74        I accept the evidence of the various witnesses that the job was heavy, difficult and repetitive. It involved a beast being presented to the plaintiff on a long chain or line, and, over the course of its journey down that line, was butchered by various slaughtermen. The plaintiff was at the beginning of the chain, and thus workmen down the chair were reliant upon him to ensure the beasts were moved quickly. The work of long hooking required a particular knack. He was required to place a large metal hook through the upper trailing leg of the beast, and swing it up onto the line. I accept that he did not, in this process, take the full weight of the beast, but it was nonetheless a heavy task given the beast weighed something between 40 and 100 kilograms. It was not only this weight which was arduous, but the repetitive nature of the work. When the line was full, there would be in the order of twenty three butchers involved in the carcass as it proceeded, and in the course of a normal day, depending upon the size of the sheep, the plaintiff may do something between 500 and 2,300 animals. On any view, that is work which was extremely repetitive.

75        The plaintiff made no complaint about the work. In fact, he said that he enjoyed it and saw it as a form of weight training. The fact that the plaintiff made no complaint, however, does not exonerate the defendant from any breach of care. There were clearly complaints by a number of persons, both co-workers and a union representative. I am satisfied complaints were made on a number of occasions before the plaintiff suffered injury by Barling, Britain and Smith. While some of the complaints were not specific to the task of long hooking, others were. In particular, Barling described complaints that people would not swap to do the long hooking work.[8]

[8]             T 42.8

76        Likewise, Britain, the area union representative, complained to management of the fact that the system was very labour intensive.[9] He also complained of injuries to workers’ arms, shoulders and backs,[10] and that there was a lack of sufficient workers on the system and insufficient rotation of duties.[11]

[9]             T 69.24-26

[10]           T 70.23

[11]           T 71.12

77        Likewise, Smith complained that there ought to be two persons working on the long hooking job.[12] He also asked about risk assessments under the Regulations.

[12]           T 171.17

78        All of these witnesses gave evidence that management made no satisfactory response to these complaints. The complaints were either ignored, or the complainant felt that his job was threatened.

79        Even without such complaints, I am of the view that it ought to have been clear to a reasonable employer that the job of long hooking, given the heavy nature of the duties, the speed with which the work was expected to be undertaken and the lack of any rotation or relief, that there was the real risk of injury to the upper limbs. This was so even although the work was carried out over the period of only one to one and a half weeks.

80        It is clear from the medical evidence before the Court that the plaintiff’s injuries led to an injury to each of the rotator cuff mechanisms of the shoulders. It would not have taken medical opinion for a reasonable employer to be aware of that risk.

81        I am satisfied there was no response to the complaints made. The employer either ignored or turned a blind eye to the complaints. I am confirmed in this view by the fact that the defendant called no evidence to refute the allegations.

82        In all the circumstances, I have little difficulty coming to the conclusion that the defendant was in breach of its duty to take reasonable care for the safety of its employee, the plaintiff. There were various alternatives clearly open to the defendant. A simple and effective means would have been a regular rotation of duties so that an employee worked on the long hooking job for no more than several hours. Alternatively, two or even three long hookers ought to have been employed at the one time to take the repetitive burden off one man. There was further evidence that prior to the injury, hydraulic lifters were available, which lowered the line at a particular point to save the heavier aspect of the job. Despite the various complaints made, none of these alternatives were undertaken.

83        In all the circumstances, I find the defendant in breach of its duty of care. The plaintiff’s Statement of Claim further pleads a breach of the Regulations as a private cause of action. Given my findings in respect of negligence, I do not find it necessary to determine whether there was such a breach.

Conclusion as to Damages

84        I am satisfied the plaintiff has suffered tendonitis of the supraspinatus tendon and bursitis to each shoulder. All of the medical evidence confirms this. The condition was sufficiently serious for Mr James, the orthopaedic specialist, to undertake arthroscopic surgery to each shoulder. This surgery was technically successful, but did not achieve a significant reduction in the plaintiff’s pain.

85        After each bout of surgery, he had a reasonable range of movement in each shoulder, and the radiology confirmed there was no tear to any tendon, nor the onset of arthritis to either joint.

86        The plaintiff has undertaken a considerable amount of treatment, including injections to each shoulder on a number of occasions, physiotherapy, acupuncture and various medication, including, at the present time, narcotic- based analgesia.

87        Mr Schofield, the orthopaedic specialist, suspects there is further pathology giving rise to the current symptoms, but his evidence in this regard is speculative.

88        The medical evidence is uniform that while there is no further prospect of surgery, nor is there any expectation that there will be any relief in the plaintiff’s symptoms into the future.

89        I am satisfied that he suffers constant pain in the shoulders, and at times this pain becomes extreme. I do accept that he has the capacity for light duties, providing the work does not involve significant nor repetitive lifting, and providing it is undertaken at bench height. For the plaintiff to obtain work with these restrictions will be difficult indeed given that for all of his working life he has worked in manual labour. I suspect he will face considerable difficulty obtaining a job when he presents with injuries to each shoulder. The situation is made even more difficult given that he lives in a relatively remote area of country Victoria. I thus accept that his lack of employment does lead to some psychological symptoms, including depression. His work was a source of social interaction for him and he enjoyed the work. This is now lost to him and is unlikely to be replaced.

90        I accept that the plaintiff has had a significant history of drug and alcohol addiction and abuse. That, in my view, is the principal reason that he has received extensive psychiatric treatment. Dr Rajagopalan, the plaintiff’s treating psychiatrist, was not called to give evidence. Mr Jordon accepted that the plaintiff’s case was presented largely on organic grounds.

91        The plaintiff does maintain a reasonably active lifestyle on his property. I accept that he does a range of domestic tasks, including carrying petrol, water and gas and from time to time chopping and splitting wood. I accept he does this with considerable pain and because there is no reasonable alternative available to him. I was impressed by the evidence of his mother and his general practitioner that while he does these tasks, he does suffer significantly afterwards.

92        Of particular significance, in my view, is the fact that the plaintiff is a relatively young man, now only forty-one years of age. He faces a bleak future without real prospects of obtaining further employment. There appears to be no relief, by way of surgery, or any other treatment available to him. Further, he has injuries to both shoulders. He is unable to gain any relief in any task which involves the use of both arms.

93        I found the plaintiff a credible witness and accept his complaints of pain, incapacity for employment, and restriction on a range of domestic and recreational pastimes.

94        In all of the circumstances, I am of the view that a fair and reasonable award of damages for pain and suffering and loss of enjoyment of life is $115,000.

95        I shall hear further from counsel as to consequent orders.

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