Grant Tomlinson v Ramsey Food Processing Pty Limited
[2013] NSWDC 64
•17 May 2013
District Court
New South Wales
Medium Neutral Citation: Grant Tomlinson v Ramsey Food Processing Pty Limited [2013] NSWDC 64 Hearing dates: 6 - 9 May 2013 Decision date: 17 May 2013 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the Plaintiff, for orders see paragraph 128
Catchwords: Work injury claim against employer pro hac vice; issue estoppel Legislation Cited: Civil Liability Act 2002
Workplace Injury Management and Workers' Compensation Act 1998
Workers Compensation Act 1987
Evidence Act 1995
Fair Work Act 200
Evidence Act 2005Cases Cited: Fair Work Ombudsman v Ramsey Food Processing Pty Limited [2011] FCA 1176
Hollis v Vabu Pty Limited (2001) 207 CLR 21
Vabu Pty Limited v Federal Commissioner of Taxation (1996) 33 ATR 537
Young v Public Service Board (1982) 2 NSWLR 456
Blair v Curran (1939) 62 CLR 464
Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales & Or [2013] NSWCA 10
Kuligowski v Metro Bus (2004) 220 CLR 363
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1AC 853
Ramsay v Pigram (1968) 118 CLR 271
Beck v Weinstock [2012] NSWCA 289
Trawl Industries of Australia Pty Limited (In Liquidation) & Ors v Effem Foods Pty Limited (1992) 36 FCR 406
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Penrith City Council v Parks [2004] NSWCA 201
MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Fox v Wood (1981) 148 CLR 438Category: Principal judgment Parties: Grant Tomlinson - Plaintiff
Ramsey Food Processing Pty Limited - DefendantRepresentation: R Goodridge - Plaintiff
K Andrews - Defendant
Monaco Solicitors
A R Conolly & Company Lawyers
File Number(s): 11/194262 Publication restriction: Nil
Judgment
The Plaintiff's Claim
The plaintiff claims that on 17 June 2008 he was injured in the course of his work as an abattoir worker. At that time, the plaintiff claims he was an employee of Tempus Holdings Pty Limited ("Tempus") and that pursuant to a labour hire agreement, the particulars of which the plaintiff was unaware, Tempus provided the plaintiff to the defendant to perform work for it. To that extent, the defendant became the plaintiff's employer pro hac vice.
At the time of his injury the plaintiff was working on restricted duties, having suffered injuries to his back, neck and left shoulder previously at work. He claims he was injured on 17 June 2008 when he was attempting to lift a large roll of plastic bags onto a bracket above his head. The weight he was lifting was approximately 20kgs, and therefore in excess of his restricted duties which limited weights he could lift to 10kgs, and further prohibited him from lifting above shoulder height.
The plaintiff's claim is brought in negligence. It is common ground between the parties that if the plaintiff is found to have been an employee of Tempus and not the Defendant, then the plaintiff's action is governed by the provisions of the Civil Liability Act 2002.
The Defence
The defendant has denied the plaintiff's claim and alleged contributory negligence against the plaintiff. The defendant has also pleaded as follows:
"8. In answer to the whole of the Statement of Claim, on 31 October 2011 in proceedings number (PNSD 1005/2010 in the Federal Court of Australia between Fair Work Ombudsman and the Defendant, Buchanan J found that the Plaintiff was employed by the Defendant from at least 17 October 2006. On the basis of the determination of Buchanan J the Defendant pleads as follows:
(a) Pursuant to s280A and s280B of the Workplace Injury Management and Workers' Compensation Act 1998 and s 151C of the Workers Compensation Act 1987, the Plaintiff is precluded from bringing these proceedings because he has not made a claim against the Defendant for lump sum compensation in respect of the injury nor has he been paid lump sum compensation by the Defendant.
(b) Pursuant to s315 and 318A of the Workplace Injury Management and Workers' Compensation Act 1998, the Plaintiff is precluded from bringing these proceedings because he has not served a pre-filing statement on the Defendant nor has he referred the claim against the Defendant to Mediation.
(c) Pursuant to s151H of the Workers Compensation Act 1987, the Plaintiff is unable to recover damages against the Defendant because he does not suffer a degree of permanent impairment which is at least 15%.
(d) Pursuant to s151G of the Workers Compensation Act 1987, the Plaintiff is precluded from recovering damages for out of pocket expenses and domestic assistance from the Defendant."
If paragraph 8(a) & (b) of the defence is made out, it was conceded that the plaintiff is precluded from bringing these proceedings and a verdict must be entered for the defendant.
The plaintiff filed a Notice of Motion on 30 April 2013 seeking inter alia an order that paragraph 8 of the defence be struck out. The matter was case managed with orders made that the plaintiff's Motion be dealt with by the Trial Judge.
At the commencement of the hearing on 6 May 2013 Counsel for the plaintiff properly raised the matter before opening the plaintiff's case, and sought to have the matter dealt with as a preliminary issue. That course was opposed. The defendant relied on an affidavit of Elizabeth Ramsay sworn on 3 May 2013 which established that the defendant intended to call witnesses who were employees at the same abattoir to give evidence both in relation to the issue of liability and evidence relevant to the issue of the identity of the plaintiff's employer. On that basis, I ruled that the Notice of Motion should be determined following the hearing when the evidence was complete, so that the parties could identify with some precision the actual evidence which they relied on in support and in opposition to the orders sought.
The principal issue raised by the plaintiff's Notice of Motion is whether I am bound by the judgment of Buchanan J in the Federal Court of Australia in Fair Work Ombudsman v Ramsey Food Processing Pty Limited [2011] FCA 1176, to the effect that the Plaintiff was employed by the defendant at the time of his injury. The defendant contends that that finding creates an issue estoppel. My determination in respect of that matter is set out below at paragraphs 32-45.
The Plaintiff's Background and Previous Injuries
The plaintiff was born on 19 February 1964 and left school in year 10. Thereafter, all of his employment had been in manual labouring jobs, including as a linesman for Telecom, a fettler for the NSW Railways and, from approximately 1993 as an abattoir worker.
The plaintiff had completed certificates 1 & 2 of a horticultural course at TAFE, however, he had not relied on those qualifications for employment. He had suffered a number of injuries at work, the first being in 1988 when he injured his back whilst working for the Railways when carrying a sleeper. He had a week or two off work and then returned to full duties.
In 1995 he suffered another injury to his back whilst working at the South Grafton Abattoirs. He was then employed by R G Gilbertson. He made a claim for workers compensation and was off work on that occasion for approximately two months. He then returned to work on light duties, and since that incident has always had trouble with his back. He continued to work however at the abattoir until it closed down around the year 2000. He never got back to working full duties.
The plaintiff was off work for six or seven years and at first received workers compensation and then subsequently CentreLink payments. He received a lump sum by way of commutation of his entitlements under the Workers Compensation Act 1987.
In 2005 the defendant commenced operation of the abattoirs. The plaintiff applied for work and was successful in obtaining work. When he commenced work at the abattoir there was no restriction placed on his duties.
In July 2005 the plaintiff suffered an injury to his left shoulder when he was working in the plugging room, and was engaged in a process which was referred to as "stimulating a dead cow" which meant placing an electric metal probe in the cow's mouth, thereby pulsing electricity into the carcass, stimulating blood flow out of the carcass and helping the carcass to set. In the process of carrying out this procedure the beast whipped its body whilst the plaintiff still had hold of the probe, and it wrenched his left shoulder.
In the same year the plaintiff was moved to another task in the plugging room, however, he again hurt his left shoulder in November 2005 as a result of doing highly repetitive work.
The plaintiff sought treatment for his left shoulder at Grafton Hospital and from his local medical officer. Scans were taken of his left shoulder and he was given advice in respect of surgery, but continued with conservative treatment involving physiotherapy and rest. He was given medical certificates which he gave to his employer as a result of which his duties were again modified. Thereafter he was employed to hose out the cattle yards and working on the cattle race when cattle were being unloaded at the abattoir.
The Change in the Plaintiff's Employment
In October 2006 the plaintiff gave evidence that the abattoir manager, Michael Considine, told the employees that they were being changed over to Tempus Holdings Company. He gave the following evidence in chief:
"Q: Did you make any protest or say anything or just go along with it?
A: I inquired about our entitlements and everything from the old company and as to whether we had to change over and we were told that there was no choice in the matter."
From that point on, the plaintiff gave evidence that Tempus issued payslips to him under the name Tempus. His evidence was corroborated by that of Mr Cary Hill.
In cross-examination of the plaintiff it was established that after that meeting in October 2006 the duties the plaintiff was to carry out at work did not change. His pay was the same, he reported to the same supervisor and he took pay inquiries to the personnel office, Mr Marshall.
The plaintiff's employment was terminated in November 2008, following which he spoke to someone at the Fair Work Ombudman's office as he did not receive his entitlements for annual leave and long service leave. He swore an affidavit in the Federal Court proceedings. That affidavit was not in evidence.
Admitted over objections as to relevance were the judgment of Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Limited [2011] FCA 1176 and exhibit L which was a certificate pursuant to s 178 of the Evidence Act 1995 attaching a copy of the orders made by Justice Buchanan on 31 October 2011. They included the following declarations:
"2. Each of Grant Tomlinson, Nathan Korn and Brent Slack was employed by the first respondent at the South Grafton Abattoir from at least 17 October 2006. ...
8. The employment of each of the employees referred to in (1), (2), (3), (4) and (5) above was terminated by the first respondent, effective on and from 28 November 2008, by notice given on behalf of the first respondent on 25 November 2008."
At paragraph 2 of his judgment, Buchanan J said as follows:
"[2] I have had no difficulty in concluding that the arrangements made for the inter-positioning of Tempus between Ramsey Food Processing and the employees who performed work in the operations of Ramsey Food Processing were legally irrelevant to the identification of their true employer. In the relevant period, the employer was, in my view, Ramsey Food Processing. Furthermore, although the conclusion just stated rests upon an independent footing, the purported inter-positioning of Tempus was a sham, intended to disguise the true position.
[3] The creation of those arrangements (so far as they involved Tempus) was conceived as part of arrangements made to avoid payment of penalties ordered by this Court, in other proceedings, to be paid by companies associated with Mr Ramsey and under his direct control. The arrangements were also intended, I am satisfied, for the purpose of avoiding direct legal responsibility by Ramsey Food Processing for the wages and entitlements of employees at the abattoir. ..."
That purpose was made clear in the letter given to employees on 16 October 2006 by Mr Considine (see judgment paragraph 13). The letter stated:
"On the fourth of October last the Federal Court of Australia made orders against your employer. These orders fined, penalised and awarded costs against your employer causing it to be insolvent and accordingly, your employer cannot continue to incur wage commitments whilst insolvent. Accordingly, your employment with your employer is at an end.
You are at liberty to approach Tempus Holdings Pty Limited who may have a position for you, and whom may be willing to honour your entitlements."
The defendant called Mr Considine who gave evidence that he commenced employment at the abattoir as plant manager in 2005. He answered directly to Paul Ramsey.
Mr Considine gave evidence that during the whole of his time at the abattoir, including after Tempus was incorporated, he observed no change in the way work was carried out at the abattoir. His own duties did not change, nor did the way in which he received his pay.
It was common ground that the Mr Considine was the sole director of Tempus Holdings when it was incorporated and remained so until January 2010. Prior to ceasing to be a director, Mr Considine has spoken to both Mr Ramsey and a solicitor involved in the incorporation of Tempus, namely, Mr Hannigan.
In cross-examination Mr Considine gave evidence that he was, or had been, a director of a number of corporations. He was familiar with the statutory obligations of corporations with respect to employees and record keeping. Although at first he did not recall, one of his own corporations, Drama Pty Limited, was the only shareholder of Tempus. On behalf of Tempus he had executed a deed to supply labour to the abattoirs. When asked whether the deed was honest or dishonest, he said:
"A: Well, I think it has previously been called a sham."
He was then asked:
"Q: Were you attempting to be dishonest when you executed that deed?
A: No.
Q: So it was the truth, was it, that Tempus was supplying labour to the abattoirs?
A: Yes.
Q: Mr Tomlinson was one of those staff, correct?
A: Yes.
Q: You understand, do you not, that Tempus Holdings Pty Limited made payments to the employees?
A: Yes.
Q: They took out a workers compensation policy?
A: Yes.
Q: Any claims for the relevant employees was forwarded off to Tempus Holdings' insurer?
A: Yes.
Q: You are aware, were you not, that it was a compulsory obligation in New South Wales for employees to have a workers compensation policy?
A: Correct, yes.
Q: Sir, when you said that you didn't provide any assistance in Tempus Holdings being created by Hannigans, did you overlook the fact that you provided all the details of your company, being Drama Pty Limited to the solicitors to assist them?
A: Yes, I did overlook."
Mr Considine then went on to identify a number of corporations which were undertaking various tasks at the abattoirs from to time.
In re-examination Mr Considine gave evidence that he had on one occasion fired staff, but was told by Stuart Ramsey that it was the wrong thing to do. He gave further evidence that the money to pay employees was transferred from Ramsey Food Processing to Tempus.
The evidence also established that from the outset Mr Considine had a desire to be indemnified by Mr Ramsey in respect of any "ongoing issues that may have occurred at the abattoir with him being a director of Tempus".
In further evidence Mr Considine agreed that at the meeting in October 2006 employees had been told that "nothing will change other than the name of the company on your payslip", and that "all your entitlements will carry over to Tempus". He also confirmed that Tempus had taken out a workers compensation policy, that group certificates or PAYG certificates went out in the name of Tempus and that tax office accounts were credited on the basis that employees were employed by Tempus, as was the super guarantee charge credited on behalf of Tempus for each employee.
The Plaintiff's Notice of Motion - Was there an Issue Estoppel on the Question of Employment?
The defendant submits that the finding by Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Limited that the defendant was the employer of the eleven persons whose entitlements were being claimed in those proceedings and were eventually the subject of the orders certified in exhibit L, constitutes an issue estoppel binding on me in these proceedings. If I accept that contention, as pleaded in paragraph 8 of the defence, and as properly conceded by Counsel for the plaintiff, the proceedings should be dismissed and a verdict entered for the defendant.
In support of its contention that the finding of Buchanan J constituted an issue estoppel binding on me, the defendant relied the following passage from the High Court of Australia's decision in Blair v Curran (1939) 62 CLR 464 per Dixon J (as he then was) at 531-533:
"A judicial determination directly involving an issue of fact or of law disposes of once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded ... The difficulty in the actual application of these concepts is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal ramification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order."
That passage, whilst extracting only some of the relevant parts of Dixon J's judgment, was also referred to by Allsop P in Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales & Or [2013] NSWCA 10. Allsop P, with whom Meagher and Ward JJA agreed, held that there was no doubt about the continuing application of the distinction (i.e. between matters fundamental or cardinal to the prior decision or judgment from matters which are not in point of law the essential foundation of the judgment). He went on to say:
"106 Further, in Kuligowski v Metro Bus (2004) 220 CLR 363 at 373ff, the Court applied what Lord Guest had said in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1AC 853 at 935:
(1) That the same question has been decided;
(2) That the judicial decision which is said to create the estoppel was final; and
(3) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."
Counsel for the defendant further relied on Beck v Weinstock [2012] NSWCA 289 where the Court had again referred to the same passage from Blair v Curran and at paragraph 34 said:
"34 ... any issue or question which is thus shown to have been recognised or taken by the parties as the subject of the litigation, and of the judgment or order agreed to, is deemed to have been thereby conclusively determined, so as to preclude any subsequent challenge."
Counsel for the defendant submitted that the fundamental issue to be determined in this case was whether the plaintiff was an employee of the defendant. The fundamental principle underlying the issue estoppel is that there should not be inconsistent determinations on factual findings.
Counsel for the defendant conceded that in relation to the issue estoppel question, the judgment of Buchanan J was admissible. Further, the certificate of his Honour's orders was admissible pursuant to s 178 of the Evidence Act 2005, in relation to the determination of whether or not the plaintiff was an employee of the defendant.
Counsel for the defendant submitted that the substance of the proceedings before Buchanan J was that the plaintiff was employed by the defendant, and that decision was based on "all of the indicia which are required to determine employment". For that reason, it was irrelevant that the proceedings were brought by the Fair Work Ombudsman because it was in fact in the interests of the group of workers which included the plaintiff (relying on Trawl Industries of Australia Pty Limited (In Liquidation) & Ors v Effem Foods Pty Limited (1992) 36 FCR 406).
In determining this aspect of the matter, I make the following findings on the evidence before me:
(i) The letter dated 16 October 2006 made it clear that the plaintiff's employment by the defendant had been terminated.
(ii) From that point on I accept the plaintiff's evidence that he believed he was employed by Tempus and that Tempus issued payslips to him.
(iii) I accept Mr Considine's evidence set out in paragraph 27 above that Tempus was supplying labour to the abattoirs and that the plaintiff was one of those staff.
(iv) I accept his further evidence that Tempus made payment to employees, took out a workers compensation policy and made claims for employees on that insurer.
(v) I accept Mr Considine's evidence that Tempus issued group certificates of PAYG certificate, had tax office accounts in its name and the super guarantee charge in respect of employees was credited on behalf of Tempus.
I accept the plaintiff's submission that a person or a corporation may be an employer for one purpose but not another, relying on the example by way of analogy of Hollis v Vabu Pty Limited (2001) 207 CLR 21and Vabu Pty Limited v Federal Commissioner of Taxation (1996) 33 ATR 537.
Tempus was not a party to the Federal Court case and therefore the findings are not binding on it. Further, the Fair Work Ombudsman was carrying out a statutory function pursuant to the Fair Work Act 2009. As the relief sought was declarations and consequential orders relating to statutory leave entitlements, the subject matter of the litigation was in substance different to the issues being determined here.
The defendant must also establish privity of interest given the different relationships between the parties to the proceedings. In Young v Public Service Board (1982) 2 NSWLR 456, Lee J held that individual members of a union or association had no legal privity of interest with the union representing them so as to estop them in relation to proceedings in the NSW Industrial Commision. At p 464, Lee J referred to Carl Zeis Stiftung, noting that in Ramsay v Pigram (1968) 118 CLR 271, at p 279, Barwick CJ adopted the same classification. Like the plaintiffs in Young, Mr Tomlinson and other employees had no control of the proceedings before the Federal Court, and hence, I find there is no privity of interest between the plaintiff and the Fair Work Ombudsman (cf Lee J, at p 466).
Finally, by relying on the decision of Buchanan J, the defendant seeks a benefit from findings made by his Honour which characterised their conduct by the interpositioning of Tempus in their workplace structure as being a sham established for the purpose of avoiding their statutory obligations. Equity would intervene to prevent such reliance for the defendant's benefit.
I therefore find first, that in substance, the decision of Buchanan J that the defendant was the employer, was not conclusively determined by His Honour. Rather, the issue was determined for the purpose of those proceedings based only on the evidence before him. The evidence here was clearly different (eg. that of Mr Considine), and the factual determination is for a different forensic purpose (cf Beck v Weinstock)
Secondly, there was no privity of interest between the plaintiff and Fair Work Ombudsman. Therefore I am not bound by the finding of Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Limited by way of issue estoppel. I find the matters pleaded in paragraph 8(a) and (b) are not made out and consequently the matters pleaded in paragraphs 8(c) and (d) also fall away. I therefore order on the plaintiff's Notice of Motion filed on 30 April 2013, that paragraph 8 of the defence is struck out.
The Issues to be Determined
The issues to be determined in respect of the plaintiff's claim in negligence are as follows:
(1) What was the duty of care owed to the plaintiff by the defendant?
(2) Did the defendant breach that duty of care, applying sections 5B and 5C of the CLA?
(3) If there was breach of the defendant's duty of care, did that breach cause injuries to the plaintiff, and if so,
(4) What are the damages to be assessed?
(5) Whether those damage should be reduced by way of the plaintiff's own contributory negligence?
The only oral evidence in the case concerning damages was given by the plaintiff. Otherwise, both the plaintiff and defendant relied on written medical evidence contained in exhibit P and exhibit 4. None of the doctors were required for cross-examination. The circumstances in which the plaintiff was injured was not challenged, but rather, it was put to the plaintiff that there was alternative systems of work available to him which would have avoided the injury, namely, by assistance from other workers. The plaintiff's credit was also attacked for the purpose of diminishing his damages, by demonstrating that the effect of any injury suffered by him had been overstated.
Circumstances of the Plaintiff's Injury
The plaintiff gave evidence that in 2007 he was told by Mr Considine that he was being moved to work in the offal room. He had worked there before and knew the duties involved. He refused to work there because he was on restricted duties as certified by his doctor, and he knew that most of the boxes of meat in the offal room were over his weight restriction limit and there were repetitive duties which involved him reaching above his shoulder. The plaintiff told the personnel officer, Mr Marshall, that he was refusing to work in the offal room because it was against his light duties certificate and that he was going home. He was suspended for a week and returned to work a month later to work in the offal room because he wanted to keep the job. He had no other employment opportunities available in South Grafton at that time. None of that evidence was challenged.
There was conflicting evidence as to the temperature in the offal room. The plaintiff gave evidence in chief that the room was kept as cold as possible so that the offal did not go off. He described it as "like walking into a freezer". He also described the floors being icy and slippery, and that he needed to wear heavy clothing and gumboots. None of that evidence is relevant to the issues to be determined. What was relevant was that he was required to work with boxes of different sizes, the largest of which were 13 and 27 kilos respectively, both of which were in excess of his weight restriction limit. Once the boxes were filled and weighed, they were placed on the trolley which was pushed into the freezer room.
The plaintiff was also required to use his left arm above shoulder height. The reason for that was that the system of work involved various types of offal were delivered to the offal room by means of a chute. Before the offal was packed in boxes, the boxes had to be lines with plastic bags. The plastic bags came in a roll weighing 15 kilos. They were placed on a bracket above head height by means of a stainless steel bar which itself weighed 4 or 5 kilos. When the roll needed to be replaced, the roll of new plastic, with the stainless steel bar, had to be lifted to be placed on the bracket which was attached by a couple of hooks hanging down from the ceiling rack. The plaintiff gave the following evidence about what was involved:
"Q: Why did you have to put up the bags and the bar et cetera?
A: Well, we were quite often understaffed so it was whoever was closest to them did them.
Q: How did you go about it on the day of your accident which is in June 2008. How did you go about it on that date, trying to get the bags up?
A: I put the bar in the roll and went to put it up at the angle, like, I have to put it up on an angle to try to get it up to the right height. I go as high as I can on my toes and reach as high as I can with the roll at probably a 45 degree angle and try and push it up on to the rack as best I can.
Q: Why did you have to adopt that sort of method?
A: I can't lift - I couldn't lift my arm above my shoulder with the weight of it and it was just too high for me to get without doing it the way I was doing it.
Q: You said you were on your toes?
A: Yes.
Q: Did you, in any way, push or jump or leap or what did you do? Tell us what you did to get the rest of it up there?
A: Well, had to give it a big shove and virtually leap off the - almost leap off my feet to get it there. You have to, sort of, throw it up on - get one bar one and try to get the other bar on at the same time so it stays up there.
Q: What happened on this day?
A: As I went to do it the roll was too heavy for my left arm and I lost control of it. As I went to do a little leap to push it up there I let it go and fell forward over the track and it came down behind me. I tried to protect myself from getting hit from it and I ended up over the track."
The track referred to was a system of rollers designed to assist in moving the filled boxes along the production line to a weighing station.
The plaintiff gave evidence that to run the offal room properly they were supposed to have eight people working, however, on most days they had six people and sometimes less. Eight were required because there were eight different areas to work in in the one room. If a workstation was empty, that meant a worker had to do the job of two people. The plaintiff did not recall how many people were working on the day he was injured.
Mr Cary Hill was called in the plaintiff's case. He was the longest serving worker in the offal room when he was employed at the abattoirs. He described the conditions as being "wet, hot and slippery".
Mr Hill had no recollection of being at work on 17 June 2008 when the plaintiff was injured. His evidence did corroborate the working conditions in the offal room, describing the floor as being always wet and slippery, and in the chiller and freezer room as being "like a skating rink". He also confirmed that the plastic bags weighed approximately 18 kilos, and were hung on a hanger held by hooks at approximately 45 to 50 centimetres above his own head height. He was six foot tall. In describing that height, he gave the following evidence:
"A: Like if I was to stand up and put it up, the hooks would be about there and on that angle too. We had to - it was a two man job really but you know, with the amount of staff that we had there we just had to sometimes do it yourself and it was on a 45 degree angle but you had to reach up and put them on. It was not easy. ...
Q: Why did you have to lean forward to do that job?
A: Because that was where they were located. We had rollers, like rollers cemented into the ground in front of us, like rollers that we put boxes on to to push them along and it was on that 45 degree angle across two sets of rollers."
Mr Hill was aware that the plaintiff was on light duties when he was first employed to work in the offal room and that in fact 90 per cent of the staff in that room were on light duties. He was asked whether the plaintiff was only given light duties in the offal room, to which he stated:
"A: The offal room - put it this way, if we had a full compliment of staff, the work wasn't that hard but we never ever had a full compliment of staff which added to a lot of different problems in the offal room."
Mr Hill said there would only have been one or two people working in the offal room who were not on light duties. When asked whether there were enough able bodied staff to be able to assign them to all the heavier jobs, he said:
"A: No, we never ever had enough staff."
In cross-examination Mr Hill was asked as follows:
"Q: What I want to suggest to you is that if you to lift something heavy or there was heavy work to be done in the offal room that you could go to one of the supervisors and ask for some assistance. Is that right?
A: The assistance was, 'just manage it yourselves'."
In respect of the number of workers employed in the offal room, Mr Hill was asked:
"Q: But you see that is a job that would have to be done irrespective of whether there was a full compliment or not, isn't it?
A: The whole job had to be done whether there was a full compliment or not. If three of us turned up there just one day, like they would expect the whole three of us to do the whole lot in one hit.
Q: What I am suggesting to you is that anyone on light duties in the offal room wasn't required to move any boxes?
A: I was never ever told that."
It was put to Mr Hill that there was a person employed on the computer who was available to assist workers with lifting, by the name of Phil. Mr Hill worked in the offal room the whole time he was there and did not recognise that name. No person by that name was called in the defendant's case, nor was he further identified.
In respect of the rolls of plastic bags, Mr Hill gave evidence that they were replaced approximately four times per week, depending on the volume of meat produced. It was put to him that there was always someone to help if a worker had difficulty putting the rolls up, to which Mr Hill replied:
"A: At times we used to get people help us do it. I would hold one hand and I'd have to get up and someone would do the other end, but it wasn't always like that. We'd be waiting for staff and someone to come. You would be standing there, three people, trying to pack six hundred head of cattle."
With respect to the available assistance, Mr Hill was asked as follows:
"Q: If someone was working in the offal room and they said to someone else in the offal room, 'Would you give us a hand?' Would you expect them to do that?
A: If someone asked me to give them a hand, I would give them a hand. Like there's no doubt about it, people do say, 'Oh well, no. Bugger you. You do it yourself.' Right.
Q: But certainly if someone wanted to lift up the plastic bags and put a new roll of plastic bags up on the hooks, they could ask someone to give them a hand doing it, couldn't they?
A: Yeah, yes. But as I said, of the morning when we were starting there when we had to have those bags there ready to go, because it was coming down, half the time there was no one even come through the door. There was probably me and one other person or something and that was it and all of a sudden, you know, they'd be sending them down ... then they come back and get them five minutes later and we'd end up with nobody again."
The defendant called Ms Tracy Hindmarsh who was employed in June 2008 as a supervisor in the tripe room at the abattoirs. That room was adjacent to the offal room. She gave evidence of the system of work employed in the offal room which involved packing the products in boxes, the boxes going by roller to the computer operator, weighed and packed on a trolley and then being wheeled into the chiller room. Her evidence established that the work area was air conditioned, that the offal room led to a chiller room which also led to a freezer. From her work site in the tripe room, she could not see into the offal room, however, she could see the offal room through a window if required. She gave evidence that there were a few people in the offal room employed on light duties and those people were not to lift anything. She gave the following evidence:
"Q: If someone on light duties had to move something, and there was no one in the offal room to lift it, could they come and see you?
A: Yes.
Q: Were you aware that there were rolls of plastic?
A: Yes.
Q: Plastic bags, plastic that was used in the offal room?
A: Yes, yeah.
Q: They came in a number of different sizes?
A: Yes.
Q: And they were hung on hooks above where the person was working?
A: Yes
...
Q: Now, if at the very start of a shift somebody needed a roll of plastic, there was a storeroom. You could go and get it?
A: Yeah.
Q: If you needed assistance in getting it, you could ask for assistance?
A: Yes.
Q: And did that happen?
A: Yes.
Q: Can you recall the date that Mr Tomlinson was injured?
A: No.
Q: The rolls of plastic bags, you said they came in a number of sizes?
A: Yes.
Q: Is that right? Did you ever have to lift those and put them up on the hooks?
A: No, I couldn't reach them."
Cross-examination established that Ms Hindmarsh had no recall of whether she was at work or not on 17 June 2008, and that she could not give evidence as to whether or not the offal room was understaffed on that day. In respect of her evidence that people on light duties certificates were not to lift anything she was asked:
"Q: Well if you weren't there, and work needed to be done, how was that implemented? That is, how was it implemented, a system whereby people on light duties didn't lift anything?
A: Well that's--
Q: Who supervised it?
A: Management, probably."
Findings as to the System of Work
I make the following findings in respect of the system of work employed by the defendant:
(1) The offal room comprised eight workstations in which to process offal products which were delivered initially by a chute from the killing rooms. That meat had to be packed in boxes of various sizes being 7 kilograms, 13 kilograms and 27 kilograms, depending on the order being filled.
(2) The boxes which were assembled from flattened cardboard products, were lined with plastic. The plastic came on rolls in various sizes and the rolls weighed between 15 and 18 kilograms.
(3) The rolls were hung approximately 50cms above an average worker's head height. The rolls were hung off hooks affixed to the ceiling by means of a stainless steel bar placed through the middle of the roll. The bar weighed approximately 5kgs.
(4) When the roll ran out, it required replacement. That involved a worker obtaining a fresh roll from the storeroom, placing the steel bar through it and then lifting the roll above head height to place both ends of the steel bar on hooks.
(5) The task was not within the limited duties for which the plaintiff was certified as fit for work.
(6) To the extent that Ms Hindmarsh was, as supervisor, available to provide assistance to workers as required, such assistance did not extend to the task of replacing the plastic rolls as she could not reach them.
(7) The defendant had no other system in place to ensure workers on restricted duties did not have to do work beyond their certified capacity.
(8) Whilst a worker who required assistance could ask fellow workers for it, such assistance was not always forthcoming. One reason for this was that many of those who worked in the offal room were on restricted duties.
Cross-examination and the Plaintiff's Credit
The plaintiff was asked in cross-examination to demonstrate how high he could raise his left arm without discomfort. He elevated his left arm with his arm parallel to the floor to a height about 10-15cms below shoulder height and with his forearm at right angles to that. When asked whether there had been any period of time since he hurt his shoulder where he had greater movement than demonstrated, he said:
"A: I have had. But I have to rest, yeah, when I start using it. It all depends on what day it is, whether I've slept on it or it does fluctuate. But I still have trouble lifting it above my shoulder, like level shoulder height.
Q: So even on a good day you have trouble getting it over shoulder height. Is that right?
A: Yes, yes."
He was asked about his ability to lift objects and, whilst he was lefthanded, he said he would use his right hand. In respect of shopping bags he was asked:
"Q: Do you try and lift with both hands or do you only focus on the right hand?
A: I usually try and lift with my right arm if it's got weight in it. I can lift with my left arm. But if it's got weight in it then it starts to become a problem if it's got any sort of weight in it. I can lift it. Carrying or lifting it up is a hard thing to do. "
He agreed that he would have trouble lifting something up to put it in the back of a car. He was asked:
"Q: What sort of things are we talking about that would be light enough for you to do that?
A: I say a couple of loaves of bread in a bag I can lift into the back of the car.
Q: Nothing more than that?
A: No. Once it gets - if it's, say, a bottle of juice or something like that, it's just too much weight to - when I go to lift it, it pulls down on my shoulder, so."
When asked what sort of weight he was referring to he said:
"A: I can carry out a bag of dog food is 8kgs and I - if I've got to carry that for any distance I struggle with it. I can carry it. But it gets heavy after a short distance."
The plaintiff conceded that he was capable of doing housework including vacuuming with some restrictions. He said he had trouble getting back up after squatting down and that he only squatted down if he had to.
Standing was also a problem identified by the plaintiff. He was asked:
"Q: If you had to stand in sort of one position and just move around slightly, how long before you start getting discomfort then?
A: If I stand in the one spot for any longer than 10 minutes, I've got to be moving or I've got discomfort. I've got numbness in my toes and burning and sensation in my back, like I've got to move. I can't stand in the one spot. It feels like I'm getting cramped in the back."
Prior to his back injury in 1988, the plaintiff used to surf and play football. He was an experienced surfer. He was asked whether he was able to continue surfing after his 2005 injury and he gave the following evidence:
"A: I tried it but I didn't go very often and I didn't last for very long.
Q: After the 2008 accident did you go back to surfing after that?
A: No. I've gone in the water but I don't go surfing any more."
The plaintiff did give evidence of going to the beach with his children for a swim at the weekend before the trial.
In regard to the circumstances of the plaintiff's injury, he was crossexamined as follows:
"Q: Once again, if you needed assistance in lifting a roll of plastic bags and putting it up on the hooks, you could ask someone to assist you?
A: I could.
Q: On the day of this accident you didn't?
A: No, we were in a hurry to set up.
Q: You refer to the fact you were setting up, is that right?
A: Yep.
Q: What time did the accident occur?
A: I'm not sure. It was - the stuff had just started coming down the chute so it would have been half past seven or eight o'clock or something like that. I'm not sure."
In respect of his evidence about not surfing since the 2008 accident, he was further cross-examined as follows:
"Q: So your answer is correct that you do go in the water, but you don't go surfing any more?
A: No, not anymore. No.
Q: That's since 2008?
A: I've tried since 2008. I have tried. But I've since given up.
Q: When was the last time you tried?
A: I reckon it would be two months ago, three months ago.
Q: When you tried where did you go surfing?
A: Minnie Waters, the beach on the north coast.
Q: When you tried, what happened?
A: I got pain in my shoulder and my neck from paddling, pain in my back from lying on my board, just general pain from trying to paddle out and then catch a wave in. Didn't last real long. Came in.
Q: So how long were you able to be out there for?
A: Probably half an hour maximum. Yeah.
Q: You got pain in your - you said your shoulder, your neck and your back?
A: Yeah.
Q: From doing that, is that right?
A: Yes.
Q: Having got that pain in your shoulder, neck and back, you then came back into the beach?
A: Yes.
Q: What did you do then?
A: I sat on the beach with the kids for a while.
Q: Then what did you do?
A: I think we had lunch, waited till the kids had finished, the granddaughter had finished nippers and I think I possibly went for a swim with my daughter or one of the grandkids and went home after that like at the end of the day.
Q: You say you possibly went for a swim?
A: Yeah. I can't remember exactly, but yeah."
The plaintiff was asked about his previous injuries and medical treatment. He conceded that the pain and discomfort that he suffered following his 2005 injury continued up until the start of 2008 and that he had shoulder pain on and off. To add to his clinical picture in 2008 he was diagnosed with Q fever.
The plaintiff was cross-examined on a questionnaire he completed in February 2006 at the Big River Health and Sport Clinic in which he indicated that he had been suffering neck, shoulder, arm, upper back, lower back and leg pain for 6-9 months.
By July 2009 the plaintiff had been certified as fit for modified duties, following which, he attained a truck driver's license and commenced working as a truck driver, transporting livestock. He worked for a period of three weeks but then could not do it any more. In October 2010 the plaintiff had done a work trial at Caringa, a centre for disabled people. That was for a period of six weeks, and was a work trial organised by his workers compensation rehabilitation provider. He was not offered a job at the completion of the work trial. He had looked for work in the Grafton area with the Clarence Valley Council and gave evidence that he could not work as a security guard. He gave evidence that he would be able to work as a taxi driver if he was able to take breaks whenever he liked.
When asked about how much time he spent in the water surfing prior to 2005, he said he could spend a couple of hours or more in the water. He was then asked:
"Q: As far as being in the water now, could you spend a couple of hours?
A: Not a couple of hours. No. It'd be - I wouldn't go any more than probably an hour, hour and a half and I wouldn't be able to do anything. Just lying on the beach."
As to the incident on 17 June 2008 he was asked as follows:
"Q: If you don't understand any part of this, please let me know. You're in the offal room of the abattoirs and was lifting heavy rolls of plastic above your head when your left shoulder gave way, causing you to lose your balance and fall heavily on your stomach across the track of a conveyer belt, moving beneath your waist height?
A: Yeah. It was a roll - one roll of plastic bags. It wasn't rolls. It was just the one roll.
Q: Sorry I didn't mean to cut you off. It was one roll of plastic bags?
A: Yeah.
Q: But otherwise that description is correct?
A: Pretty much. Yes."
In respect of surfing, the plaintiff was again cross-examined as follows:
"Q: I just want to go back a little bit to your attempt or when you did, you said, go surfing about two months back?
A: Yep.
Q: Do you specifically recall the incident?
A: Not offhand.
Q: Well, you said about two months back you remember trying to surf?
A: Yeah.
Q: How long prior to that had you attempted to surf?
A: Might have only been a weekend before or two weekends before. I don't know. Whenever we go to the beach I'd have a go and if I couldn't handle doing it, well, I wouldn't do it. I'd come in.
Q: The weekend before or two weekends before, in having a go at surfing, did you do exactly what you did on this period of time about two months back?
A: In what way do you mean? Paddling out and go surfing?
Q: Yes.
A: Well, that's what I try to do, yeah.
Q: That's what you tried to do each time you've tried to go surfing?
A: Yes.
Q: How often do you think over the last 12 months you've tried to go surfing?
A: I don't know. I'll be may be every second weekend, every third weekend, may be two weekends in a row. I don't know. I can't recall.
Q: It's always the same. You get to the beach, you paddle out and see if you can get a wave?
A: Yes.
Q: How long do you stay out there each time? About the same time?
A: It all depends on how I'm feeling on the day. Some days are a little bit longer, Some days are shorter. I might only be out there, like, paddle out there and catch a wave back in. Other days I'll be out there for half an hour to an hour. It just all depends on how I'm feeling on that day."
I asked the plaintiff as follows:
"Q: Do you regard yourself as an experienced board rider?
A: I was, your Honour. Yeah I would class myself as that."
The plaintiff had been investigated by the defendant and he was filmed at Minnie Waters beach on 22 March 2013, less than two months before the commencement of the trial. On that day he was filmed at a shopping centre and in the car park of the shopping centre was shown lifting groceries from a trolley into the rear of his vehicle. Some of the bags containing groceries required him to lift them using two hands and two freezer bags appeared in the video to be heavy. He was shown lifting an 8kg bag of dog food in his left arm, but with his right hand beneath it.
Video footage was also exposed on 24 March 2013 which showed the plaintiff and his extended family at Minnie Waters beach. The film showed the plaintiff in the water on his surfboard for a period of approximately 35 minutes. For the whole of that time, in a rather gentle surf, he was shown to be paddling his board, using both left and right arm, one after the other, and both together, and going over and diving under waves. He eventually caught only one wave back into the beach and carried his board in his left arm along the beach. He was then shown to be in the water with his grandchildren, holding one in each arm and was filmed lifting one child on his left arm to neck height. On another occasion he picked two children up, however, in carrying the children, his left arm was lower than his right, and he appeared to be favouring it. He was shown in the surf with two grandchildren, lifting one small child with his left arm and holding him for some time. He was also shown carrying a small child up the beach in his left arm, having a beach shower and drying himself with both hands, carrying his surfboard to his utility vehicle and lifting it with both hands above shoulder height on to the back of the vehicle. He was also shown pushing a pram over rough beachside terrain to the car and loaded the pram on to the back of the utility, but in doing so, lower the side of the utility before he lifted it. The disks were exhibit 3 in the proceedings.
The plaintiff was cross-examined about all of those activities. It was put to him that in all of the film he showed no restriction in the doing of any of the activities. His answer was:
"A: I can tell you my back and shoulders were playing up after I did that."
He described the day in question at the beach as a "good day". When asked about his previous evidence "I have gone in the water. But I don't go surfing any more", he said:
"A: No. I didn't mean any more. Yeah.
Q: Well that was your evidence wasn't it?
A: Yeah. Obviously it's written down. Yes."
He agreed that he had told the Court that after his 2005 accident he did not go surfing very often and did not last for very long, and it was put to him that since the 2008 accident he seemed to be going surfing a lot more often. He disagreed with that. He gave the following evidence:
"Q: You're going every second to third week and sometimes two weekends running?
A: Yeah. Sometimes I don't surf. I just go down there and help out with the grand kids.
Q: Yes. But you're certainly surfing more since 2008 than you were before 2005, aren't you?
A: No, I'm not. No. I go to the beach more. But I don't go surfing as much."
The plaintiff gave evidence that he had pain in his left shoulder all the time but conceded that he had had pain in that shoulder all the time prior to the 2008 accident.
As to the circumstances in which he was injured, it was again put to the plaintiff that he could have asked for assistance. He gave the following evidence:
"Q: What I want to suggest is that if you needed to lift anything heavy, and I asked you this previously, you could always ask someone to assist you and you agreed with that?
A: Yes.
Q: What I want to suggest to you is you could also, if there was no one available to assist you, you could have spoken to Ms Hindmarsh about it?
A: Yeah. I suppose I could have yes.
Q: If necessary she could have even helped you?
A: If she wasn't flat out in her room, yeah."
The Defendant was Negligent
Having regard to all of the evidence, I find that the defendant owed a duty of care to the plaintiff to have in place and maintain a safe system of work and supervision and to organise its work activities reasonably so as to avoid foreseeable risk of injury to the plaintiff. This duty was analogous to that owed by an employer - see Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, where at [20] the Court referred to the judgment of Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47-48.
The duty therefore is a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury.
I find that the plaintiff was medically certified to work on modified duties which involved not lifting more than 10kgs of weight and not working with his left shoulder above shoulder height. Requiring the plaintiff to change the rolls of plastic bags above head height by means of lifting a weight of approximately 18-20kgs, gave rise to a risk of harm, namely, that the plaintiff would injure himself or further aggravate injuries he had previously suffered to his left shoulder, neck and back. The system of work, and precautions put in place by the defendant to avoid that risk of harm was, according to the evidence of Ms Hindmarsh, a prohibition on the plaintiff, or any other worker on light duties, lifting heavy weights. A further precaution entailed the provision of assistance from other workers in the offal room, or from the supervisor, Ms Hindmarsh.
I find that pursuant to s 5B(1)(a) the risk of harm to the plaintiff as identified above was foreseeable in that it was a risk which the defendant knew of. It was also, in accordance with s 5B(1)(b) a risk which was not insignificant, given the vulnerable state of the plaintiff in respect of his previous injuries for which he was medically certified for modified work duties. In those circumstances, in accordance with s 5B(1)(c) I find that a reasonable person in the defendant's position would have taken the precautions set out above, particularly having regard to s 5B(2) of the CLA, namely, that there was a high probability that harm would occur if care was not taken and that that harm would in all likelihood be serious, that there was no "burden" of taking the precautions to avoid the risk of harm, and there was a social utility of the activity that created the risk of harm, namely, the employment of the plaintiff and others to produce the defendant's products.
I have also had regard to the other principles contained in s 5C of the CLA, and I find that the defendant did not take the precautions required of it for the following reasons. First, the plaintiff was required to lift weights in excess of 10kgs. Secondly, to request assistance from others working in the offal room, when most of them were themselves on restricted duties and were prohibited from lifting, meant that in reality, no such assistance was available. Thirdly, to require the plaintiff to ask assistance from Ms Hindmarsh, the supervisor who was working in a separate area, was entirely unrealistic. She supervised several areas and was not always present. She had no recollection of being there on that day. In any event, to ask her would have had no utility, in that she gave evidence that she herself was unable to do the task involved because she could not reach the hooks.
I therefore find that the defendant breached its duty of care to the plaintiff.
On the question of causation pursuant to s 5D of the CLA, I find that the breach of the defendant's duty of care was a necessary condition of the occurrence of the harm in this case in that but for the defendant's breach of duty of care the plaintiff would not have suffered the injury he did. I further find pursuant to s 5D(1)(b) that it is appropriate for the scope of the defendant's liability to extend to the harm so caused in that the safety of people in industrial workplaces is an important matter in our society. I therefore find both elements established pursuant to s 5D(1) and therefore I find that the defendant's breach of duty of care caused the plaintiff's injury.
Damages
Following his injury the plaintiff attended at Grafton Hospital Emergency Department complaining of pain "down his right back". The medical evidence tendered by both parties was voluminous, however, it mainly concerned the plaintiff's previous injuries, treatment and pre-incident condition. Much of the plaintiff's medical evidence comprised reports from the rehabilitation provider employed by the workers compensation insurer. Following the incident the plaintiff was off work for two to three weeks and then returned to work in the offal room until his position was terminated on 25 November 2008. It is clear therefore that his injuries were soft tissue injuries constituting an aggravation of his previous left shoulder injury and his previous back injury. He was under the care of his local doctor, Dr Bhinder, who certified him in December 2008 as having restrictions of no lifting over 10kgs and no lifting over his shoulder height.
Dr Bhinder referred him for an MRI scan on 29 June 2011 as he was suffering from chronic lower back pain radiating to his legs. The scan was reported on as showing no significant abnormality.
When examined by Dr John Davis, occupational medicine physician, on behalf of his solicitors on 17 August 2011, the plaintiff was found to have "tenderness generally over the tips of the transverse processes on the left side and centrally and bilaterally, particularly at C5/6".
There was generalised reduction of active range of movement of the neck with dysmetria observed in side flexion and rotation, with greater loss to the left. There was elevation of the left scapula by at least 1.5cms and there was weakness of the shoulder retractors bilaterally, although no true winging. There was symmetry of the shoulder contours consistent with a degree of wasting, and he was tender over the top of the humeral head, anterially over the gleno-humoral joint and also over the left AC joint, and further pain with springing. There was marked spasm in the left trapezius where there was also a trigger point.
Dr Davis was of the opinion that the plaintiff had clinical signs and symptoms of suffering with a chronic strain injury in his cervical region consistent with the nature and conditions of his employment at the abattoir, which would be described as a "disease of gradual onset". He went on to state:
"There is further contribution to this pathology as a result of spasm in his left trapezius with elevation of the shoulder which results in his neck being subjected to further tension forces. There is also injury to the left AC joint, and at this time probable tendinitis of the left shoulder. He suffered disc injury in the lower back, and all of his injuries are consistent with his stated mechanism of trauma."
Dr Davis was of the opinion that he was significantly disadvantaged on the open labour market and will continue to be so.
The plaintiff was also examined by Dr James Bodel for medico-legal service purposes on 22 August 2011. Dr Bodel found the plaintiff to be suffering mechanical problems in the left shoulder and back, and that his injury at work was a substantial contributing factor to his ongoing complaints. In regard to the back, Dr Bodel was of the opinion that this was probably an aggravation of the previous pathology which was ongoing, and that the plaintiff would require intermittent physiotherapy on a needs basis for his shoulder and back at a rate of 12-15 visits per year for the next two years. Dr Bodel examined the plaintiff again on 15 March 2013 and on this occasion diagnosed a sub-acromial impingement and associated minor rotator cuff pathology in the region of the left shoulder. Since his last assessment, the plaintiff had also developed less marked symptoms on the right side. He had also suffered a soft tissue aggravation of his previous longstanding back pathology in the lumbosacral region. In Dr Bodel's opinion he had a guarded prognosis.
The plaintiff underwent a functional assessment by physiotherapist, Gill Myburgh, which concluded that the plaintiff would find it very difficult to compete for appropriate work on the open labour market given his limited capacities.
The defendant had the plaintiff assessed for medico-legal purposes by Dr Ashwell, Professor Ehrlich and Dr Anthony Smith. Dr Ashwell proffered the following opinion:
"Mr Tomlinson suffered a temporary exacerbation of soft tissue injury to his lumbar spine, cervical spine and left shoulder as a result of an injury at work on 17 June 2008. This exacerbation has now ceased and his employment is no longer a substantial contributing factor. ...
I do not anticipate Mr Tomlinson will be able to obtain a complete recovery as he has pre-existing conditions which are causing ongoing symptoms. I do however believe that he is fit for returning to permanent modified duties at his pre-injury level."
Professor Ehrlich diagnosed a musculoligamentous strain of his lower back which should be regarded as having resolved over a matter of weeks. He concluded by saying:
"He was able to work for some six months subsequently but has not worked since. He has numerous complaints, widespread pains, but there are no consistent clinical abnormalities and he is considered to have made a full recovery from that incident within some weeks. No further treatment is required and he remains fit for the kind of work he was doing formerly."
Dr Anthony Smith was of the opinion that the plaintiff had suffered no injuries, but that if he had, the aggravation was of mild degenerative disease in the neck and would have ceased after "a few days, a few weeks, two months at most". He went on to say:
"I do not think there is anything wrong with him from an orthopaedic point of view. He is as fit as any other man aged 48 to engage in any working activities suitable for men of his age."
Under the heading "Diagnosis and Prognosis" he said:
"In my opinion there is nothing wrong with him. He is going to continue to complain in the foreseeable future."
Determination
In assessing the medical evidence I have had regard to the plaintiff's demeanour in the witness box over a period of two days, and the attack made on his credit, based on the video film taken of him on 22 and 24 March 2013 and the extent of the inconsistencies between the evidence he gave as outlined above and what was demonstrated on that film. In my view, the inconsistencies were not great. The plaintiff was, prior to his injuries, an experienced surfer. He was shown in the video to be on his surfboard in a gentle surf for a period of a little over half an hour. In that time he paddled his board, which he said weighed 5kgs, with both arms, but on occasions he was demonstrated to be favouring his left arm, in that he did not extend it to the same extent as his right arm. Notwithstanding that, he was able to paddle the board with both arms either separately or together at the same time. He was not demonstrated to paddle in any fast action so as to catch a wave. On the contrary, he was shown to only catch one wave which was the wave he caught back to the beach. In all, the physical activity involved was of a fairly limited nature over a relatively short period of time for an experienced surfer.
Similarly, the other activities at the beach involving him being in the water with his two small grandchildren were, in my view, fairly benign. At times he was shown to be favouring his left arm, for example, when carrying two children, he was shown to be carrying the child on his left side at a much lower height than the child on his right side.
The critical evidence was the evidence of him placing his board on the back of his utility by lifting it with both arms above head height. That evidence, together with the evidence of him moving quite freely in this leisure activity, was submitted to be inconsistent with the picture painted by him in the witness box. Also of concern was the evidence of him lifting what appeared to be heavy shopping bags and freezer bags from a shopping trolley into the rear of his car, and further, lifting what appeared to be a heavy bag further into the rear of the vehicle. As the surfboard weighed 5kgs, and the shopping bags were of an indeterminate weight, I do not find the inconsistencies shown were fatal to the plaintiff's case. Rather, I have treated his evidence generally with some caution.
Generally, I found the plaintiff to be a truthful witness, who did not overstate the effect of the injuries on him. None of his doctors, treating or medico-legal, were challenged by cross-examination on their opinions. The plaintiff therefore I find was incapacitated prior to the injury he suffered on 17 June 2008, and the injuries he suffered on that occasion were soft tissue injuries involving an aggravation of the injury to his left shoulder, his cervical spine and his lumbar spine. Notwithstanding that he returned to work after three weeks, I find that the aggravation that he endured beyond that time required him to undergo an MRI scan in June of 2011.
I accept the plaintiff's evidence that he has not returned to his pre-injury condition and therefore the aggravation has continued.
I am not satisfied, having viewed the video evidence in exhibit 3, that I should not accept the plaintiff's account of his injuries and their effect on him, or that of his treating doctors and Drs Davis and Bodel. For that reason I prefer their opinions to those of Professor Ehrlich and Dr Anthony Smith. Dr Ashwell, on behalf of the defendant, accepted that the plaintiff had suffered an exacerbation of his soft tissue injuries to his lumbar spine, cervical spine and left shoulder and whilst he was of the opinion that that exacerbation had now ceased, he did not opine as to when they had ceased, but rather states that his symptoms have now returned to the level they were prior to the incident of 17 June 2008. He was of the opinion, however, that Mr Tomlinson will not obtain a complete recovery as his preexisting conditions are causing ongoing symptoms. This is a more measured assessment of the plaintiff, consistent with Dr Davis, except that Dr Davis is of the opinion that the aggravation is continuing.
I do not accept the opinions of Professor Ehrlich or Dr Smith set out in paragraphs 102 and 103 above. Both ignore the plaintiff's ongoing symptoms. By comparing the plaintiff to "any other man aged 48", Dr Smith trivialises the plaintiff's injuries, and in my view, became an advocate for the defendant.
Assessment of Damages
The plaintiff's schedule of damages is as follows:
Non-economic loss 25-30 % of a most extreme case
$35,000.00
$123,000.00
Past economic loss:
3 weeks at $525.00
25 November - 9 May 2013 - 220 weeks at $525.00
$1,575.00
$121,800.00
$123,375.00
Loss of earning capacity - $525.00 x 796.6 less 15%
$355,482.00
Loss of past superannuation benefits
$13,571.00
Loss of future superannuation at 11%
$39,109.00
Fox v Wood
$7,118.00
Agreed past out of pocket expenses
$25,976.00
Future out of pocket expenses, estimate
$10,000.00
Future domestic assistance, estimate
$10,000.00
Total
$707,631.00
The defendant submits that the plaintiff is not entitled to damages for noneconomic loss pursuant to s 16 of the CLA because he is less than 15% of a most extreme case.
The defendant contests the agreed amount of out of pocket expenses on the basis that the majority of it related to rehabilitation provided to the plaintiff which it submits were not related to this injury once the aggravation had ceased. The defendant has not identified when that occurred. The defendant submitted that there should be no allowance for future treatment. For past economic loss the defendant has submitted that once he was terminated in November 2008 there were a number of other options potentially open to him including applying for a security license and therefore any award of damages should be limited to the three weeks he had off work. On the same basis, he should not be entitled to future economic loss in the defendant's submission, and any claim for paid future domestic assistance should be treated with caution, having regard to when the aggravation ceases. On that basis there should be no award of damages for these items.
Having regard to the nature of the injuries suffered by the plaintiff being soft tissue injuries, aggravating pre-existing injuries to his left shoulder, neck and lumbar spine, I assess the plaintiff's damages for noneconomic loss pursuant to s 16 of the CLA as 20% of a most extreme case. This would result in an award of 3.5% of the maximum proscribed amount in accordance with the table in s 16, a sum of $18,500.
As I am not persuaded that the plaintiff's aggravation of his pre-existing injuries has ceased, I award the whole amount of past treatment expenses as agreed in the sum of $25,976.00.
For past economic loss, I assess the plaintiff's loss at the three weeks prior to his return to work, and after 25 November 2008, I am not prepared to assess the plaintiff's loss at $525.00 per week. That would overcompensate the plaintiff and ignore his pre-existing condition. For that period I allow $100 per week and therefore, for past economic loss, I allow the sum of $23,575.00.
Pursuant to s 13 of the CLA, an award of damages for future economic loss cannot be made unless the Court is satisfied that the assumptions about the plaintiff's future earning capacity, on which the award is based, is to accord with his most likely future circumstances, but for the injury (s 13(1)). In determining such damages the Court is then required to adjust the amount of damages that would have been sustained on those assumptions by reference to the percentage possibly that the events might not have occurred but for the injury (s 13(2)).
I am satisfied here that the plaintiff's most likely future circumstances, but for the injury, would have been to seek unskilled labouring work in the Grafton area. The plaintiff was poorly educated and had only worked in unskilled jobs. Whilst he had worked previously as a security guard, there was some doubt that he would now qualify for a license as a security guard. Any work he obtained, but for his injuries, would have had to cater for his pre-existing condition, and allowed him the opportunity to rest, sit or stand, or change position as required. This in effect would have limited the options open to him.
The aggravation of the plaintiff's pre-existing injuries to his left shoulder, neck and back have further limited his capacity to compete against ablebodied persons in the marketplace for labour. It will continue to do so for a number of years. Damages for future loss are allowed where the diminution of earning capacity "is or may be productive of financial loss" - see Medlin v The State Government Insurance Commission (1995) 182 CLR 1. In assessing the lost earning capacity in these circumstances, it is appropriate to award a lump sum - see Penrith City Council v Parks [2004] NSWCA 201 and MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145.
An award by way of a buffer is appropriate in this case rather than an arithmetic award based on the plaintiff's past wages as advocated by the plaintiff. Having regard to the age of the plaintiff and the impact of the aggravation of his injuries on him, I assess an appropriate buffer representing his lost earning capacity over the rest of his working life at $75,000.00. This amount is to include any lost superannuation benefits.
I award the sum agreed pursuant to the principle in Fox v Wood (1981) 148 CLR 438 of $7,018.00.
For future treatment expenses I assess the plaintiff's reasonable requirements as intermittent physiotherapy over the next two years, together with assessment by his local medical officer. I award $5,000.00 for that head of damages.
I am not satisfied that the plaintiff has established a need for future commercial domestic assistance based on the aggravation injuries that he has suffered in this matter and I decline to make an award in respect of that head of damages.
I therefore assess the plaintiff's damages as follows:
Non-economic loss
$18,500.00
Past Wage Loss
$23,575.00
Future loss of earning capacity
$75,000.00
Fox v Wood
$7,018.00
Past Treatment expenses
$25,976.00
Future Treatment expenses
$5,000.00
Total
$155,069.00
Contributory Negligence
The defendant relies on s 5R and 5S of the CLA to submit that the plaintiff here contributed to his own injuries. He could have called for assistance but did not. I am not prepared to find that the plaintiff contributed to his own injuries here. It is well established that momentary inadvertence in an industrial workplace does not amount to contributory negligence by a worker - see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. Here, in circumstances where the offal room was being prepared at the start of the working day, the workers were under pressure to commence operations because of offal being delivered to the room. There was an absence of able-bodied persons around the plaintiff to assist in any event. Rather, because of the defendant's negligence, he was compelled to breach the certified restrictions on his work duties to try to ensure the work was carried out. I find that by doing so the plaintiff did not contribute by his own negligence to his injuries.
Conclusion
I therefore find that there will be a verdict and judgment for the Plaintiff in the sum of $155,069.00 with no reduction for the plaintiff's own contributory negligence.
As outlined above, I also strike out paragraph 8 of the defence filed on behalf of the defendant.
Orders
I make the following orders:
(1) Paragraph 8 of the Defence is struck out.
(2) Verdict and Judgment in favour of the Plaintiff against the Defendant in the sum of $155,069.00.
(3) The exhibits are to be returned forthwith.
(4) The defendant is to pay the plaintiff's costs of the proceedings and the plaintiff's Notice of Motion.
(5) The parties have liberty to apply on 7 days notice for any special order as to costs.
Decision last updated: 21 May 2013
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