Exton v George Weston Foods Ltd

[1998] QSC 214

IN THE SUPREME COURT

OF QUEENSLAND
  No. 2201 of 1995

Before Justice Wilson

[Exton v George Weston Foods Ltd]

BETWEEN:

CATHY ELIZABETH EXTON

Plaintiff

AND:

GEORGE WESTON FOODS LIMITED (ACN 008 429 632) a

company duly incorporated according to law trading under the

registered firm name or style of The Webster Biscuit

Defendant

REASONS FOR JUDGMENT  - WILSON J.

Delivered the 9th day of October 1998

CATCHWORDS:     CIVIL - personal injuries - musculoligamentous fatigue injury - causation - whether cause of action barred by Limitation of Actions Act 1974 s. 11 - quantum

Counsel:R.C. Morton for the plaintiff

C.J. Fitzpatrick for the defendant

Solicitors:Ebsworth & Ebsworth for the plaintiff

Mullins & Mullins for the defendant

Hearing Date:              23 -24 September 1998

IN THE SUPREME COURT

OF QUEENSLAND
  No. 2201 of 1995

Before Justice Wilson

[Exton v George Weston Foods Ltd]

BETWEEN:

CATHY ELIZABETH EXTON

Plaintiff

AND:

GEORGE WESTON FOODS LIMITED (ACN 008 429 632) a

company duly incorporated according to law trading under the

registered firm name or style of The Webster Biscuit

Respondent

REASONS FOR JUDGMENT  - WILSON J.

Delivered the 9th day of October 1998

1. On 15 November 1995 the plaintiff commenced an action against the defendant, her former employer, claiming damages for personal injuries sustained during the course of her employment. The defendant admits that it did not have a safe system of work, but it denies that its negligence caused the injuries of which the plaintiff complains. Further, it contends that to the extent that the plaintiff’s cause of action arose earlier than three years prior to the issue of the writ, it is barred by s 11 of the Limitation of Actions Act 1974.

1. The plaintiff was born on 6 March 1959. On 15 March 1982 she commenced work with the defendant as a process worker at its biscuit factory in Kedron, Brisbane. She worked there as a factory hand/packer until 19 February 1987. Then she was promoted to a leading hand/supervisor. She remained in that position until 17 January 1991, when she reverted to being a factory hand/packer. She continued in that role until she ceased work with the defendant on 20 April 1994, her employment formally terminating on 12 August 1994.

1. The plaintiff was required to perform fast, repetitive work. When she first went to work for the defendant, she was required to take biscuits from a conveyor belt which brought them from the ovens, and place them in a constantly moving machine which took them to a packaging machine. She had no control over the speed at which she had to work, which  was ultimately governed by the speed at which the biscuits emerged from the oven. She was required to work also on the cream assorted line. In that job she had to take biscuits from a tray in front of her at about chest level  and put the required number of cream assorted biscuits in styrene trays that went along a conveyor belt in front of her, just below waist level. The trays went past at the rate of about 61 trays per minute. She did different jobs on the cream assorted line, including one called servicing, which involved being behind the cream assorted line and ensuring that the trays of biscuits came to the girls who were to put them in packets.  She worked also at the packing table: as the biscuits came out of the machine after being wrapped, she had to pack them in a carton and push them through a taper machine, then take the cartons and place them on a pallet. 

1. Two or three years after the plaintiff started working for the defendant, she started experiencing sharp pains in her left shoulder and upper arm. This would happen every six months or so and last a couple of days. She said she may have had a couple of days off work because of this, but she could not remember any particular period.

1. The plaintiff was promoted to a supervisor in 1987, and she remained in that position for four years. During that time she had a problem with her left shoulder only once - and that was when she relieved someone on the packing table. She reverted to the production line of her own accord, after the manager turned up the speed of the machine on the cream assorted line and refused to reduce it when she told him that the girls working on that line were suffering back pains, neck pains and arm pains.

1. In December 1991 (a little under a year after returning to the production line), the plaintiff experienced pains in her left shoulder again. She went to her general practitioner, Dr Yang, who referred her to Prince Charles Hospital. She went to the hospital in January, by which time the pain had gone. She went back to work on the line.

1. At about the end of 1992/early 1993 she started experiencing pain further up her left shoulder, at about the junction between her shoulder and her arm, as well as in the underneath part of her upper left arm. She had not had pain going up her shoulder before. She said she persevered with the pain, which was getting worse. It would be worse at the end of a shift than at the beginning, and worse at the end of a week’s work than at the beginning.  She said that at about the middle of 1993 she went to Dr Yang.  However, he had no record of a consultation at that time, and while I accept that the pain was getting worse in the sense that it was more frequent, I find that her memory was unreliable in relation to the consultation. About this time she started getting headaches.

2. In July 1993 the plaintiff started a second job, as a casual cleaner. She worked five nights a week from 4.30 pm until 6.40 pm cleaning the Taxation Office. She took the extra work so that she and her then de facto partner Mr Zolek could pay off the mortgage on their four bedroom house on the North Pine River more quickly. They had worked out that with the extra money they would be able to pay it off in eleven years instead of twenty years.

1. She was also doing overtime with the defendant. In the evenings overtime was available from the normal knock-off time of 3.00 pm until 7.30 or 8.00 pm, and eight hours overtime was available on Saturdays.  She had to cut out the evening overtime when she started the cleaning job.

1. In September 1993 she visited her father’s grave. As she sat down beside the grave, she “felt something go crack in my [her] neck.” She was in a lot of pain in the left side of her neck. Later that day she took her daughter to the movies as previously arranged, and the next day she went to work at the defendant’s factory. After about an hour, she went off work because her neck was really sore. She went to Dr Yang, who subsequently referred her to Dr Gillett, an orthopaedic specialist.

1. She was on workers’ compensation for about three months. During that period the pain seemed to creep down her neck, down her left arm and into her left hand. She suffered headaches. After a couple of weeks, she tried to return to the cleaning job, but she lasted only a week or two. She started a work assessment programme at the defendant’s factory, but did not finish it, because as the hours increased, so did the pain. She went back to work on 5 December 1993, because she was concerned about losing her job and concerned that she and her then de facto partner were paying off a house. She worked until Christmas: during which time the shoulder pain got a little worse.  Then she had 4 or 5 weeks off, during which the arm and shoulder problems remained more or less stable.

1. She resumed work in late January 1994. She started experiencing what she described as electric shocks in her fingers every time she grabbed hold of anything. She went off on workers’ compensation on 20 April 1994, and was advised by Dr Gillett to give up process work. While on compensation she attended the South Brisbane Rehabilitation Centre for several weeks. During that time she applied unsuccessfully for a position as a training supervisor with the defendant. She was assessed as unsuited to returning to work with the defendant, and subsequently spent further time at the South Brisbane Rehabilitation Centre, where she was assessed for clerical work.

1. On 15 August 1994 the plaintiff began clerical work at the Prince Charles Hospital. Although she has had steady work there ever since (with the exception of about a week at the end of June 1997), she did not become a permanent employee until 20 August 1998. She has worked variously in the main office, in the pharmacy, as hospital cashier and in the administration section of the laundry. When she was the cashier, she found that lifting bags of money aggravated her problems, but she does not have to do lifting in her present position in the laundry.

1. The plaintiff’s relationship with Mr Zolek came to an end in August 1996, when he moved out of the house. I find that this was due in part to the plaintiff’s injuries, in that she was depressed, irritable and hard to get on with, and their sexual relationship was impaired because of her pain. The plaintiff has a daughter, who was born in May 1977. She left home in July or August 1997, when she went to work in North Queensland. The house was put on the market soon after Mr Zolek left, but it was not sold until September 1997. Meanwhile, the plaintiff commenced a relationship with her present de facto partner, and in July 1997 she moved into a smaller house  at Deception Bay with him.

1. Because of the pain she was experiencing, the plaintiff needed the assistance of others with some aspects of daily living. She relied on a schedule of past gratuitous care which she had prepared with the assistance of her lawyers. A copy of this is annexed to these reasons and marked “A.”                

1. The plaintiff still suffers headaches about twice a week on average. If she uses her arm too much, it causes tightness in her neck and sparks off the headaches. In the past year she has had two or three days off work because of headaches.  She has a constant tightness around the base of her neck, and a feeling of pressure across the top of her left shoulder. She has good days and bad days - being now at a stage where she has more good days than bad. On a good day she does not have a headache, but she still has the feeling of tightness. On a bad day she gets sharp pains in her neck, head, shoulder and arm and tries not to use her arm as much as possible. She takes panadol to relieve her symptoms.

1. The plaintiff’s symptoms have been investigated by a number of medical specialists over the past five years, including Drs Gillett and Nave (orthopaedic surgeons) and Drs Cameron and Todman (neurologists). Tests have been performed to eliminate various causes, including a rheumatological condition, brachial plexus entrapment or other nerve root entrapment, and carpal tunnel syndrome. I accept the evidence of Drs Gillett, Nave and Todman that given the symptoms she has described and the repetitive nature of the work she did at the defendant’s factory, it is probable that the neck and shoulder problems were caused by a musculoligamentous fatigue injury. Dr Doughty, who practises occupational medicine, diagnosed occipital neuralgia as the cause of the headaches. As he was the only doctor to test her occipital nerve and there is no other explanation for the headaches, I accept his evidence in this regard. The plaintiff is a tall, thin woman, with a long neck described as a swan neck. There was some disagreement among the doctors as to whether persons with such necks are predisposed to certain conditions. It is unnecessary for me to resolve this; suffice it to say, I accept the evidence that she is physically more suited to clerical work than to process work, and as it happens, she has a distinct preference for clerical work. I accept also the evidence of Dr Mulholland (a psychiatrist) that from about 1992 until about 1994 the plaintiff suffered a mild adjustment disorder with depressive mood, and that she had a chronic pain disorder mostly due to general medical factors. She did not receive any psychiatric treatment.

1. It will be recalled that the plaintiff had some symptoms in her shoulder before she took the supervisor’s position in 1987. After she returned to process work, there was an incident of left shoulder pain in December 1991, but the pain had gone by the time she went to the Prince Charles Hospital in January 1994.   She started experiencing pain further up her left shoulder, at about the junction between her shoulder and her arm, as well as in the underneath part of her upper left arm at about the end of 1992/early 1993. In September 1993 she felt a sharp pain in her neck while visiting her father’s graveside.

1. I am not persuaded that the plaintiff’s cause of action is to any extent barred by s 11 of the Limitation of Actions Act 1974. From late 1992/early 1993 her symptoms were different from those she had previously experienced. I find that she had some musculoligamentous injury at that time, which was the cause, or at least a substantial cause, of her problems thereafter. Dr Gillett described the incident at the graveside in September 1993 as an acute event which sounded like spasm and locking of the nerve and shoulder girdle. I accept his opinion that it was improbable that she would have had the injury had she not had the work related problems, and that it accelerated the process that was going to occur if she remained in the workplace by two or three years.         

1. I assess damages for pain and suffering and loss of the amenities of life at $30,000-00. In all the circumstances, I apportion half of this amount to past loss. Interest on past loss at 2% pa over 5 years amounts to $1500-00.

1. I turn to economic loss. The plaintiff was a very good worker. I must compare what she would have earned had it not been for her injury with what she has in fact earned. Her net base pay at the time she left the defendant’s employ was $312-57 per week. Because of the overtime she worked, she was earning more than this. In the year ended 30 June 1994 she worked for only 30 weeks; she earned $11,191-83 net (on average $373-00 per week). At that rate, but for her injury, she would have earned another $8,207-34 net from the defendant in the year ended 30 June 1994.

1. The defendant tendered evidence of the earnings of three other process workers for subsequent financial years. These workers had been chosen at random, without any particular overtime history. Their average net weekly wages were $328-00 in 1994-95, $345-00 in 1995-96, $372-00 in 1996-97 and $378-00 in 1997-98. I accept the submission of counsel for the plaintiff that it is appropriate to calculate what she would have earned from the defendant (before any discounting for contingencies) by adding $2,500-00 pa to the average earnings of these three employees. On that basis, she would have earned approximately $84,000-00 up to 30 June 1998. Over that period she earned $76,737-15 from Prince Charles Hospital, the difference being $7,262-85. To this should be added another $500-00 for the diminution in earnings between 1 July 1998 and the judgment.

1. The total past loss flowing from the plaintiff’s inability to continue in the defendant’s employ is -

   $8,207-34 + $7,262-85 + $500-00 = $15,970-19.

1. She took the cleaning job in July 1993, only two months before the incident at the graveside. Between 5 July and 29 October 1993 (16 weeks) she earned $1348-78 net, an average of $84-00 net per week. There is no evidence of any increase in the applicable rate of pay since then. The plaintiff’s reason for taking the second job was to pay off the mortgage on the house she and Mr Zolek owned early. That house was sold in September 1997.  I am prepared to assess her pre-trial loss from the cleaning job on the basis that she would have continued in that job for five years at the rate of $84-00 net per week, but (as I shall explain below) I am not prepared to allow any future loss of earning capacity referrable to the cleaning job. Pre-trial economic loss from the cleaning job amounts to $21,840-00.

1. My initial assessment of past economic loss is -

   $15,970-19 + $21,840-00 = $37,810-19.

Discounting for contingencies, I allow $34,0000-00 for past economic loss.

1. The plaintiff received gross weekly compensation payments totalling $10,838-38, from which income tax of $1,766-20 was deducted. Thus the net compensation payment was $9,072.18.

2. I allow interest at 5% pa over 5 years on the past economic loss minus the net compensation payments received, ie  interest at 5% pa over 5 years on ($34,000-00 minus $9,072.18) which amounts to $6231-96. I  round this down to $6,230-00.

1. In assessing future loss of earning capacity the starting point is the difference between what the plaintiff  would now be earning if she were still in the employ of the defendant and what she is now earning at Prince Charles Hospital. The difference is about $35-00 net per week. Her counsel submitted that damages ought to be assessed on the assumption that she would have continued working until the age of 65. However, not all employees work until that age, and I think that it would be fair to assume that she would have worked for another 20 years. Applying the 5%  tables, this would produce present loss of $23,324-00, which should be discounted for contingencies to $20,000-00.

1. As I have said, I am not prepared to make any allowance for loss of future earning capacity referrable to the cleaning job. The incentive for the second job was to pay off the mortgage. However, the relationship between the plaintiff and Mr Zolek ended in August 1996 and the house was sold in September 1997. In the meantime the plaintiff had gone to live with someone else in July 1997 and her daughter had left home at about the same time.

1. I accept that if the plaintiff were thrown on the open labour market, she would be at a disadvantage by her inability to do process work. For this I make a global allowance of $15,000-00.

1. Thus my assessment of damages for future loss of earning capacity is -

   $20,000-00 + $15,000-00 = $35,000-00.

1. The plaintiff’s claim for past care is summarised in the schedule which is annexed hereto. The first period, from September 1993 to August 1994, is that between the graveside incident and her commencing work at the Prince Charles Hospital. I accept that that was the period when the plaintiff was most disabled. She said that when she started work at the hospital she “naturally had to start driving again myself and doing things for myself a little bit more. If nothing else, to help me with my work at [the hospital].” The second period, from September 1994 until July 1996, was from the commencement of her work at the hospital until the cessation of her relationship with Mr Zolek. I note that he injured his back sometime in 1996, and assume that this had some effect on the level of care he gave the plaintiff. There was then a short period, between July and September 1996, when the plaintiff engaged paid cleaning assistance at a cost of $30-00 per fortnight for about four or five fortnights. Over the last period, from September 1996 until the present, her condition has been better to the point where she has more good days than bad.

1. In awarding damages for past care, I must determine what level of care the plaintiff needed by reason of her injuries. This is not necessarily the same as the level of care she actually received. Indeed, in a family situation, it is not uncommon for family members to provide a level of care in excess of needs, simply out of natural love and affection for the plaintiff. There can be no sharp distinctions drawn between the number of hours of care provided at the end of one period and the beginning of the next; rather, as is often the case, the plaintiff’s condition was progressively improving. However, in practical terms I have to arrive at an average level of care based on so many hours per week.

1. The parties have agreed that the care should be assessed at the rate of $10-50 per hour for the past and the future.

1. Doing the best I can on the evidence, I allow damages for past care as follows:

   Sept ‘93 - August ‘94              10 hours per week  $ 5,460-00

   Sept ‘94 - July ‘96  5 hours per week  $ 5,250-00

   Sept ‘96 - present  2 hours per week  $ 2,352-00      

   $13,062-00

To this should be added $120-00 for paid cleaning services between July and September 1996. The total damages for past care are thus $13,182-00. Interest on this over five years at 2% pa amounts to $1318-20, which I round up to $1,320-00.

1. The plaintiff’s condition seems to have stabilised. For future care, I allow 2 hours per week over her life expectancy, which is agreed as being 43 years. Using the 3% discount tables, the present value of the cost of future care is $26,672-10, which I round down to $26,670-00.

1. The following special damages are admitted -

   Health Insurance Commission  $   445-60

   Medicare gap  $      3-15

   WCBQ expenses  $ 4,289-39

   Travelling expenses  $    274-04

   Acupuncture  $    800-00

   Pharmaceutical expenses  $    436-00

   Gardener$    260-00

   Computer course  $     45-00

   $   6,553-18

The only disputed item of special damages is the cost of a new bed $ 689-00. The defendant concedes that the plaintiff received some benefit from this, and has argued that I should allow only half its cost. I allow the full cost of the new bed.

1. Thus, special damages amount to $7,242-18. I allow interest on $2,504-04 (being the amount of travelling and other expenses for which the plaintiff has actually been out of pocket) at 5% pa over 5 years. This comes to $626-01, which I round down to $625-00.

1. The Fox v Wood component is $1,766-20.

2. The plaintiff takes panadol on her bad days. I allow the sum of $1,400-00 for future pharmaceuticals, being $1-50 per week over 43 years using the 5% tables to arrive at the present value.

1. The plaintiff said that she used make her own clothes, on average one outfit per month, at a cost of $30-00 each. She estimated that similar outfits would have cost $70-00 each had she bought them ready made. Since September 1993 she has not been able to do nearly so much sewing because of pain on bending her head forward over the sewing machine and on lifting her arm. She acknowledged that while her daughter was growing up it helped the family budget for her to sew rather than buy clothes. I allow a global sum of $1,000-00 for the increased cost of clothing.

1. The gross amount paid by the Workers’ Compensation Board which is to be deducted from the damages is $15,127-77.

1. In summary, my assessment of quantum is as follows -

Past Pain and Suffering  $15,000.00

Interest  $1,500.00

Future Pain and Suffering  $15,000.00

Past Economic Loss  $34,000.00

Interest   $6,230.00

Future Economic Loss  $35,000.00
Past Care  $13,182.00

Interest  $1,320.00

Future Care  $26,670.00

Special Damages  $7,242.18

Interest  $625.00

Fox v Wood  $1,766.20

Future Pharmaceuticals  $1,400.00

Clothing Expenses  $1,000.00

$159,935.38

Less amount paid by WCBQ  $15,127.77

$144,807.61

1. I shall hear counsel on costs. Subject to that, there shall be judgment in accordance with these reasons.