Cooney v Consolidated Meat Group Pty Ltd
[2005] QSC 190
•14th of July 2005
| SUPREME COURT OF QUEENSLAND | |
CITATION: | Cooney v Consolidated Meat Group Pty Ltd [2005] QSC 190 |
PARTIES: | TANYA MAREE COONEY |
| (Plaintiff) | |
| v | |
| CONSOLIDATED MEAT GROUP PTY LTD (ACN 065 093 709) | |
| (Defendant) | |
FILE NO: | S275/2005 |
DIVISION: | Trial Division |
DELIVERED ON: | 14th of July 2005 |
DELIVERED AT: | Rockhampton |
HEARING DATES: | 9-10, 14-15 June 2005 |
JUDGE: | Dutney J |
ORDERS: | Judgement for the plaintiff against the defendant in the sum of $199,801.38. |
CATCHWORDS: | NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – where defendant failed to provide a safe system of work – whether plaintiff contributed to injuries DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURY – where plaintiff injured neck at work – where plaintiff also suffers from depression – whether depression exacerbated inability to return to work – whether plaintiff employable Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 490-491, 495, cited. |
COUNSEL: | Mr C. D. Press for the Plaintiff Mr A. M. Arnold for the Defendant |
SOLICITORS: | Rees R & Sydney Jones Solicitors for the Plaintiff Swanwick Murray Roche Lawyers for the Defendant |
On 2 May 2001, Mrs Cooney suffered a neck injury when she was struck on the head by a knuckle of meat.
The knuckle was thrown from a work platform at the Consolidated Meat Group’s Lakes Creek meatworks. It was conceded by the defendant that Mrs Cooney’s injury was caused by the defendant’s negligence. Analysis of the facts suggests that this conclusion was inevitable. The defendant, however, argues that Mrs Cooney’s own negligence contributed to her injury. It is therefore necessary to consider the facts.
On the day of her injury Mrs Cooney was employed as a “rover slicer”. A rover slicer was simply an unattached slicer who moved about the line assisting wherever a back log was occurring. Cuts of meat travelled on a conveyor. The conveyor took some of the cuts up to an elevated platform above the main floor. On the platform trimmings from the chain were sorted. The trimmings were sorted according to their fat content. The sorted trimmings were deposited down chutes to their respective collection points. At regular intervals primal cuts found their way onto the conveyor. A primal cut is one of the main cuts; eg topside or silverside. The trimmers would simply take these rogue cuts off the conveyor and drop them over the railing of the platform into stainless steel bins on the main floor. No chutes were provided to safely remove these cuts.
As the bins filled they were wheeled away and emptied. This task was carried out by the rover slicer.
Being on wheels, the bins could, and often would, move when a piece of meat was thrown into them. Progressively, the bins moved further out from the edge of the platform above.
Immediately prior to her injury, Mrs Cooney was going under the platform to remove the bin. Mrs Cooney said that before going under the platform she called out to the workers on top the platform to warn them. Whether she did so or not is not of great relevance. The evidence was that the work area was very noisy and any such warning would often not be heard. At some point the wearing of ear plugs or ear muffs became compulsory. It was not said whether this was before or after Mrs Cooney’s incident.
The woman who threw the relevant piece of meat was Mrs Walsh. Mrs Walsh was working as a sorter on the platform. The knuckle came along the conveyor. It was large and weighted about five kilograms. Mrs Walsh lifted the knuckle and glanced over the side of the platform. She saw no one and dropped the knuckle. Mrs Walsh did not watch the knuckle fall. As soon as she let it go she turned back to her work. Then she heard a scream and looked back. She saw Mrs Cooney’s safety helmet rolling across the floor and saw Mrs Cooney. Mrs Walsh had not heard Mrs Cooney call out at any time before she dropped the meat.
The allegation of contributory negligence arises because on one version of the evidence the bin was a metre to a metre and a half out from the edge of the platform. Mrs Cooney says she went to the edge of the bin and looked in. It was then that she was struck by the meat. Counsel for the defendant argued that it was negligent for Mrs Cooney to put her head over the edge of the bin knowing that pieces of meat were regularly deposited into it from the platform above.
I am not persuaded that there was any contributory negligence. The starting point is the evidence of Mrs Walsh which I accept. She says she looked and saw no one. She dropped the meat. By the time the meat fell to head level above the main floor, Mrs Cooney had obviously come out from under the platform and looked into the bin. I can see nothing unusual in a person intending to remove the bin for emptying, first glancing to see if such removal was justified. It was artificial to separate the act of looking from act of reaching for the bin to pull it back under the platform. The acts must have been simultaneous. The meat could not have fallen more than two or three metres.
The bottom of the platform was about two metres above the floor of the platform. There was some debate in the evidence as to whether it was necessary for a person passing under it to bow their head. I accept it probably was not strictly necessary for Mrs Cooney to do so but it seems like a normal reaction to a ceiling not much above her head. The platform was supported by steel girders. Allowing for the width of the girders and the floor of the platform, the width of the platform is probably something of the order of one metre. A railing is normally of the order of one and a half metres. The height above the main floor from which a piece of meat would be dropped was thus a bit less than five metres at most.
Gravitational acceleration is 9.2 metres per second per second. Mrs Cooney must only have emerged from under the platform a fraction of a second prior to being struck. Mrs Cooney said the period was very short and guessed at about two seconds. I do not accept such an estimate as accurate. It is merely an indication that her emerging from under the platform and the blow were almost simultaneous. Logic suggests the bin must have been beyond the edge of the platform both because that was necessary to enable cuts of meat to be dropped into it and because Mrs Cooney must have been beyond the edge of the platform to have been struck.
From her point of view the time between Mrs Walsh looking, Mrs Cooney emerging and Mrs Cooney being hit was so short that Mrs Cooney could not have done anything to prevent the accident. Mrs Cooney’s job required her to pass under the platform to retrieve the bin. From the defendant’s point of view the system should not have required meat to be dropped from a height to the main floor when chutes were provided for other purposes. A system could have easily been devised to alert sorters on the platform to the danger of someone passing under the platform. No such system existed. Calling out in a noisy environment was a plainly inadequate safety system.
The incident occurred on a Wednesday. Prior to being injured Mrs Cooney had already arranged to have the following week off work. Mrs Cooney was getting married at the end of that week. She continued to work on the Thursday and Friday. On those days Mrs Cooney had severe headaches and neck pain. Mrs Cooney returned to work on Tuesday, 14 May 2001. She returned on light duties. The symptoms continued. On 5 June 2001, Mrs Cooney was assessed as unfit for work.
On 25 June 2001, Mrs Cooney was reviewed by Dr Thomas, an orthopaedic surgeon. Dr Tomas diagnosed a soft tissue injury. He also expressed concern that the symptoms were becoming protracted and suggested getting her back to work on light duties as quickly as possible.
In October 2001, Mrs Coney was seen by Dr Baker, a neurologist. Prior to seeing Dr Baker, Mrs Cooney had undergone hydrotherapy, physiotherapy and acupuncture. Mrs Cooney reported that her headaches had eased but were brought on by activity. Dr Baker could not find any neurological abnormality.
Dr Thomas reviewed Mrs Cooney in December 2001. He was puzzled by the lack of progress. There has been no significant improvement since.
More recently, Dr Coyne, a neurosurgeon, has assessed a permanent impairment of 3%. Dr McPhee, a spinal surgeon, assessed the disability at 5%. Mrs Cooney has not worked since June 2001. Dr Steadman, an orthopaedic surgeon assessed a 5% permanent disability as a result of an examination on 15 May, 2002.
In evidence, Mrs Cooney said that she suffered from restricted movement in her neck. She complained of constant pain in her neck, radiating into both shoulders. She said she had dizziness and severe headaches. She suffers blurred vision when turning her head sideways. In her quantum statement, Mrs Cooney said that her symptoms were aggravated by reading, hanging out washing, sitting in a recliner chair, washing dishes, ironing, bathing her children, vacuuming, mopping, cleaning the bathroom or by any activity requiring looking up or down or lifting her arms above shoulder height. Mrs Cooney prepared a list for Dr Mulholland of things she said she either could not do or which gave her chronic neck pain if she did. In addition to the things I have already mentioned these activities included putting her daughter in the car and carrying shopping bags from the car and upstairs. As to these latter items, surveillance film tendered by the defendant showed Mrs Cooney carrying large amounts of shopping, carrying her daughter, tossing her head and putting her daughter in and out of the vehicle all without apparent discomfort.
The other significant medical evidence is provided by psychiatrists, Dr Mulholland and Dr Chalk.
Dr Mulholland originally assessed Mrs Cooney as suffering from an Adjustment Disorder which he estimated on a “minor-mild-moderate-severe-profound” scale as being mild. In a later report Dr Mulholland diagnosed a Chronic Dysthymic Disorder in the mild to moderate range of severity. In his oral evidence Dr Mulholland described a cyclical process. Mrs Cooney suffered pain. The pain made her depressed. The depression made the pain seem worse which in turn increased the depression. Dr Mulholland assessed the psychiatric disability at 10% to 20% on the assumption that Mrs Cooney was not able to return to the workforce in a meaningful capacity. Dr Chalk attributed a 5% psychiatric disability to Mrs Cooney.
In the witness box Mrs Cooney presented as a woman suffering from depression. She became teary spontaneously and often at what seemed to be inappropriate times. I do not doubt that these symptoms were genuine.
Mrs Cooney’s case cannot be considered without some history. At the time of her injury, Mrs Cooney was 21 years old. She was born on 15 May 1980. She has lived in Rockhampton all her life. On 12 May 2001 she married Ricky Lee Cooney. Mr Cooney was also a meatworker. Mrs Cooney has two children. A daughter was born on 25 June 2002 and a second daughter on 18 May 2005.
Mrs Cooney’s educational achievements were modest. She tendered her Year 10 Certificate which showed that she failed to reach a sound achievement in any subject. She acknowledges that she was a below average student.
After leaving school, Mrs Cooney commenced work at the Lakes Creek meatworks as a packer on 30 January 1997. She has never worked anywhere else.
Mrs Cooney said that her intention, had she not been injured, was to take time off from work from the sixth month of her pregnancy until the child’s first birthday. Otherwise she wanted to remain at the meatworks for her entire working life.
If this plan had been carried out, Mrs Cooney would not have worked from March 2002 until June 2003 or from February 2005 until May 2006.
On 31 October, 2001 the night shift at the Lakes creek meatworks ceased. As a result, the workforce reduced from more than 1,200 employees to between 700 and 800 employees. On 4 December, 2001, the meatworks closed for the usual end of season closure. Due to industrial action the meatworks did not reopen until 30 April, 2002. The meatworks was open intermittently from that date until industrial action forced its complete closure on 29 July, 2002. All staff were laid off from 4 September 2002. The meatworks did not reopen until 2004 when workers were progressively re-employed.
Mrs Cooney said in evidence that she would have looked for work in other meatworks after the closure of Lakes Creek. In assessing this evidence it is useful to look at the employment history of Mr Cooney. Mr Cooney was employed at Lakes Creek from 1984 until the closure. Mr Cooney was a boner and a trainer of others as boners at the time of the closure. He had been a slicer and a trainer of slicers some years earlier.
Mr Cooney was out of work from June 2002, when the industrial stoppages caused production to largely cease, until he obtained work as a labourer at Humes in September 2002. I assume from his evidence that Mr Cooney was actively seeking work away from Lakes Creek after June 2002 even though the meatworks had not officially closed and the defendant had not paid off the remaining workforce. Mr Cooney worked at Humes until February 2003 when he went to the AMH meatworks in Rockhampton. He stayed at AMH until August 2004 when he went back to Lakes Creek as a boner tutor. He stayed at Lakes Creek for a month before going back to Humes. Although there are meatworks at Biloela and Mackay, the AMH meatworks was the only one operating in Rockhampton after Lakes Creek closed.
The significance of Mr Cooney’s history is that it appears that with the closure of Lakes Creek, work in the other Rockhampton meatworks was not as readily available as Mrs Cooney suggested. Mrs Cooney would have been handicapped in moving to a meatworks outside Rockhampton June 2003 by having a baby and a husband working in Rockhampton.
Both psychiatrists who gave evidence discounted the birth of the children as contributing to Mrs Cooney’s depression. They likewise did not think that the fact that Mr Cooney contracted epilepsy in the period after Mrs Cooney’s injury made a significant contribution to Mrs Cooney’s psychiatric problem.
A useful report was obtained from Therapy Solutions, occupational therapists. The author of the report, Mr Hoey, agreed with the preponderance of the medical evidence that Mrs Cooney could not return to her previous occupation. Reasons for Mrs Cooney’s inability to return to Lakes Creek varied but included the physical nature of the work and Mrs Cooney’s belief that she had not been well treated by the defendant after her accident. It was suggested that a return to that environment in those circumstances would be likely to aggravate Mrs Cooney’s depressive condition. I also accept the evidence that Mrs Cooney’s injury, even if quantified as a 5% impairment, renders her unsuited to heavy work of the type required at the meatworks or in many cleaning type occupations.
Having regard to her low educational standard and lack of workplace skills Mr Hoey considered that Mrs Cooney was placed at level 5 on the Australian Qualifications framework. This meant she was suited to unskilled work of a process or labouring kind, in food preparation, as a carer or in some service occupations. Realistically, Mr Hoey considered that her workers compensation history and comparative disadvantage when competing for a position against an uninjured worker made employment very difficult for Mrs Cooney to find.
Mr Hoey watched the video evidence tendered by the defendant. Mr Hoey was not surprised by the activities he observed and did not consider that they were inconsistent with the information Mrs Cooney supplied to him or with his own findings as a result of the tests he carried out. It should be observed that the disabilities described by Mrs Cooney to Mr Hoey were not as severe as those set out in the list she provided to Dr Mulholland. Dr Steadman’s opinions were not affected by the video evidence. Dr Mulholland, Dr Thomas and Dr Chalk were not afforded the opportunity to comment.
The other matter to which my attention was directed was the failure of Mrs Cooney to report or complain of her neck problems to Dr Thompson. Dr Thomson was one of two general practitioners regularly used by Mrs Cooney. She had seen Dr Thompson most of her life. For the management of her neck condition, however, she used a Dr Geraghty. Dr Thompson was unaware of Mrs Cooney’s present neck complaints although he had been consulted in April 2003 about wisdom tooth pain and dizziness and in September 2003 about frontal/temporal headaches.
In the end, I accept that Mrs Cooney has suffered a soft tissue neck injury from which she still suffers. It is difficult to assess the extent to which the pain is physical as opposed to apprehended as a result of the depressive condition. Having regard to the evidence of Dr Mulholland, I am satisfied that if the depression is treated the perception of pain will reduce and Mrs Cooney will be more likely to be able to re-enter the work force when her latest child is of an appropriate age. Dr Mulholland’s description of the cyclical process of pain causing depression which increases the apprehension of the pain is supported to some extent by the video evidence. That evidence suggests that Mrs Cooney’s symptoms are more debilitating when she focuses on them. That would account for the list provided to Dr Mulholland. When her attention is directed to other activities, such as shopping or caring for her children, as is the case in the video, she appears to cope better. This suggests to me that the depression is the most significant factor preventing Mrs Cooney re-entering the workforce. If Mrs Cooney were able to re-enter the workforce I am satisfied that her physical complaints would be much less significant to her. Having made those findings I also accept the evidence from Mr Hoey that re-entry into the workforce will be difficult. I accept Mr Hoey’s opinion that a work rehabilitation programme will be required to get Mrs Cooney back into the workforce.
Having regard to the above analysis of the evidence I assess damages for pain and suffering at $30,000.
The plaintiff’s claim for past economic loss has been calculated by her counsel at $61,872.97. This is based on the loss of earnings from the meatworks at $528 net per week for 39 weeks from 5 June 2001 when Mrs Cooney ceased work until 11 March 2002. There is a further claim for 86 weeks from 25 June 2003 until 18 February 2005 at $640 net per week. This latter period is discounted by 25%, presumably to factor in the contingencies caused by the closure of the meatworks during more than half of that period.
The defendant by contrast submits that the past loss of wages is minimal but concedes the amount refundable to WorkCover should be allowed.
The plaintiff’s calculation overlooks the closure of the meatworks from the beginning of December 2001 until after Mrs Cooney would have ceased work for the first birth in any event. From June 2003, having regard to the closure of the only place she had ever worked and the demands of a one year old child, it is difficult to predict how successful Mrs Cooney would have been in finding full time work. Mr Cooney took some months to find labouring work after March 2002.
Neither Mr nor Mrs Cooney had give thought to the difficulty of obtaining reliable childcare from 5 a.m. in the morning when they would be required to leave home to attend the meatworks day shift. In his evidence, Mr Cooney refused to acknowledge that it could be at all difficult getting permanent child care at that hour. He dismissed questions along those lines with the comment “Everyone else does it every day of the week.”
While it may be possible to obtain child care from that hour the cost of all day care from such an early time would presumably come at a substantial cost which would have to be taken into account in calculating the net past loss of income.[1] Evidence was not led to the effect that such care would be provided on a gratuitous basis by any extended family member.
[1]Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 490-491, 495.
I propose to allow as past economic loss the loss of wages between 5 June 2001 and 4 December 2001 at $528 net per week. After June 2003 I propose to allow a notional three months to find work. That is half the period it took Mr Cooney to find alternative work. Thereafter, until February 2005 I will allow half the value of fulltime work at the meatworks to allow for contingencies. Assuming Mrs Cooney obtained alternative work, the wage figures set out in Mr Hoey’s report suggest that other jobs for which she is qualified would have earned Mrs Cooney significantly less than work at the meatworks. I have also considered the need to arrange child care as a factor in reducing the loss to half that claimed. My calculation totals $37,088. Interest at 5% will be allowed on $20,589, being the difference between the loss and the amount paid by WorkCover, for 4.17 years totalling $4,292.80.
For the future, Mrs Cooney would remain out of the work force on her evidence until May 2006. It was submitted on behalf of the defendant that I should find that on the balance of probabilities Mrs Cooney would not return to the workforce until her younger child started school and then only on a part time basis. I do not think such assumptions are valid in the absence of evidence. The time a woman returns to work after having children varies enormously between mothers and depends on many factors including the health of the children, financial pressures and the satisfaction derived by the mother from being a full time carer.
In this case all parties accept that Mrs Cooney is not unemployable. Her motivation to seek work is affected by her depression. On the psychiatric evidence, depression does not prevent Mrs Cooney holding a job, but, rather, makes it difficult for her to go and find a job in the first place. If she is properly treated for the depression there is no reason to believe that Mrs Cooney will not be able to return to work at about the time she would in any event have gone back to work after the birth of her second child.
I acknowledge that Mrs Cooney’s chances of finding a job are reduced and that any job will probably not be as well remunerated as a job at the meatworks. The average of the jobs identified by Mr Hoey at page 13 of his report is $500 net per week. The difference between that average and earnings at the meatworks is $140 net per week. I will allow an additional $25 per week to compensate for the difficulty in obtaining a job. I will also allow under another head the cost of a work rehabilitation programme to get Mrs Cooney back into the workforce. Any future loss will be delayed by a year to allow for the period Mrs Cooney said she would be out of the workforce in any event. I will discount the result by 20% to allow for contingencies. The end result to age 60 is a figure of $108,900.[2]
[2] 0.8 x ($165 x (876-51))
As I have indicated I will allow the cost of a rehabilitation programme estimated at $3,250. I will allow for the psychiatric treatment recommended by Dr Mulholland and costed at $7,500. I will also allow a pain management programme including accommodation, travel and meals at $4,850.
Other items in contest consisted of the cost of medication and pharmaceutical products, physiotherapy, travel to medical appointments, a magnetic underlay for Mrs Cooney’s bed and future medical consultations and medication.
I accept the submission of Mr Arnold for the defendant that there is simply no evidence supporting the magnetic underlay. It was also submitted that the physiotherapy was included in the special damages paid by the defendant. Mr Press did not argue to the contrary in his final submissions. The travel costs seem to be supported by the medical records tendered and I will allow them. The evidence for the pharmaceuticals is unclear. While no distinction seems to have been made between ordinary domestic usage of pharmaceuticals and those specifically referable to the injury, a proportion must be related to the injury and I will allow half the total claimed. For the future some medical treatments and pharmaceuticals would be permissible. $10 per week is claimed for 40 years. This seems to me to be excessive. I will allow half this amount.
In the result, my assessment of damages is as follows:
($)
($)
General Damages
30,000.00
Special Damages
Paid by CMG
Medical treatments
Pharmaceuticals
Travel
5,643.58
1,685.00
863.80
177.20
8,369.58
Interest on $1,976.61 @ 5% for 4.17 years
412.13
Future Recurring Expenses
Rehabilitation
3,250.00
Psychiatric Treatment
7,500.00
Pain Management Program
4,850.00
Medical Treatments & Pharmaceuticals
3,901.50
19,501.50
Past Economic Loss
37,088.00
Interest on past economic loss
4,292.80
Past loss of superannuation @ 8%
2,967.04
Future Economic Loss
108,900.00
Future loss of superannuation @ 9%
10,413.56
Fox v Wood Damages
5,361.27
Subtotal
227,305.88
Less WorkCover refund
(27,504.50)
Total
$199,801.38
I give judgment for the plaintiff against the defendant in the sum of ONE HUNDRED AND NINETY NINE THOUSAND EIGHT HUNDRED AND ONE DOLLARS AND THIRTY EIGHT CENTS ($199,801.38).
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