Jovanovic v Southorn

[1987] TASSC 17

Serial No B17/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Abbaci v Richardsons Meat Industries Ltd [1987] TASSC 17; B17/1987

PARTIES:  ABBACI, L'Arbi
  v
  RICHARDSONS MEAT INDUSTRIES

FILE NO/S:  WC 411/1984
DELIVERED ON:  24 April 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B17/1987
Number of paragraphs:  44

Serial No B17/1987
List "B"
File No WC 411/1984

L'ARBI ABBACI v RICHARDSONS MEAT INDUSTRIES LTD

REASONS FOR JUDGMENT  UNDERWOOD J

24 April 1987

1. The plaintiff's claim is for compensation in accordance with the provisions of the Workers Compensation Act 1927.

1. Section 5(1) provides:

"If in any employment a worker suffers personal injury by accident … arising out of and in the course of the employment, his employer shall, subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule I."

1. Liability to pay "compensation in accordance with the provisions of Schedule I" arises if the plaintiff establishes, on the balance of probabilities that:

1In his employment with the defendant he suffered personal injury by accident, and

2such personal injury arose out of and in the course of his employment.

1. In addition, proof of those matters will create a liability to pay "the reasonable costs of any medical, hospital, … services reasonably incurred … by reason of the injury" (s8A).

1. The plaintiff was born in Algeria on 10 October 1948. There, he worked as a slaughterman for about 4 years.

1. In 1966 he left Algeria and went to live in France where he became a qualified bricklayer. In 1970 he emigrated to Australia. In Victoria and South Australia he was employed in a number of unskilled or semi–skilled labouring jobs.

1. In 1974 the plaintiff came to Tasmania. Initially, he worked for Cadbury–Schweppes Ltd and then for Boxalls. In about 1979 he resumed his former occupation of a slaughterman. In 1982 the plaintiff commenced employment with the defendant as a Muslim slaughterman and remained so employed until the 17 February, 1984 when he was formally discharged.

1. The plaintiff claims that on the 20 May 1983, he suffered personal injury by accident whilst working as a Muslim slaughterman for the defendant at its Somerset abattoir. Section 5(3A)(a) provides that an injury by accident is deemed to arise out of and in the course of the employment if the accidental injury occurs, "while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment is present at his place of employment". The plaintiff also claims that in June, October and December 1983 he sustained further injuries by accident whilst working as a Muslim slaughterman for the defendant at its abattoir near Hobart.

1. Although he has lived in Australia for more than 15 years, the plaintiff's command of the English language is poor. In assessing the weight to be given to his evidence I have taken into account his limited expression in English. Notwithstanding this limitation, I formed the clear impression that the plaintiff is far from unintelligent and that his understanding of the English language is far greater than his ability to use it. On occasions under cross–examination, he took refuge in his poor expression to avoid giving fully responsive answers which he perceived would be adverse to his case.

1. The plaintiff has a history of aberrant behaviour. Some 10 years ago he suffered from an episode of hypochondriacal neurosis which manifested itself in the gross exaggeration of minor symptoms. From the evidence of Dr Dick and Dr Pargiter I am satisfied that the plaintiff is excitable and nervous by nature. He was brought up strictly in accordance with the tenents of the Islamic faith. In Australia, he is to some degree a cultural misfit, a state of affairs that is exacerbated by his limited ability to communicate in the language of the country in which he lives. This situation is productive of anger, frustration and an increased anxiety level. The plaintiff's personality and situation are such that he is prone to lapse into neurotic behaviour if exposed to psychological stressors of sufficient pressure. The neurotic behaviour usually takes the form of exaggeration of minor physical disabilities, sometimes to a degree amounting to hypochondria.

1. After making what I consider to be proper allowance for the plaintiff's poor English expression and the fact that his cultural and religious backgrounds are far removed from those of the average Australian, I find that generally, his evidence was unreliable. That is not to say that I reject the whole of his evidence but much of it has to be treated with a great deal of caution. Where his evidence on matters of fact was in direct conflict with that given by other witnesses, I reject it as being inaccurate. Where it was a subjective assessment of his own condition, allowance has to be made for exaggeration.

1. Between the 16 and the 27 May 1983, the plaintiff was employed by the defendant at its Somerset abattoirs known as "Tasmeats". His job was to kill the animals brought to the slaughterhouse. To slaughter cattle, each beast was driven into a crush. There it was stunned by a captive bolt gun. As soon as it fell to the floor of the crush, a lever was operated to open the crush and permit the stunned animal to fall onto a platform set about 5 inches off the floor. The platform was made of pipes set a few inches apart. Whilst lying on the platform the plaintiff bent over the stunned animal and cut its throat. The carcass was then hoisted up on a moving chain and dressed by other employees working on an assembly line basis. Occasionally, the hoof of a stunned beast would catch in the bars of the crush. This prevented it falling onto the killing platform. When this happened the employees were required to manually free the beast so that it could be positioned for slaughter.

1. On a day between the 20 and the 27 May 1983 the plaintiff was killing cattle in this manner when a beast became caught in the bars of the crush. In order to free it, the plaintiff pulled on its tail and immediately felt a sharp pain in his right lower lumbar spine.

1. The plaintiff continued at work after sustaining this injury although in some pain. On the 27 May 1983 he completed his duties at the Somerset abattoir and returned to work at the defendant's premises at Derwent Park. The pain persisted and, 8 working days later, the plaintiff signed a workers' compensation form and consulted a general practitioner, Dr Lloyd. He gave Dr Lloyd a history consistent with the findings I have made. An examination revealed tenderness at the L5–S1 level and a diagnosis of back strain was made. Dr Lloyd prescribed a period of rest and the plaintiff remained off work and in receipt of weekly payments until the 21 June 1983. He commenced a course of physiotherapy on 14 June 1983 and, for a period of time after returning to work, avoided bending whenever possible.

1. In the course of his cross–examination the plaintiff said that before commencing this course of physiotherapy he suffered another accident similar to the one that occurred in May. I reject the plaintiff's evidence with respect to this. However, I am satisfied that, between the day of the accidental injury in May 1983 and the time he consulted Dr Lloyd on the 8 June 1983, the nature of his work exacerbated the plaintiff's symptoms of pain.

1. The evidence of the physiotherapist, which I accept, was that by the 27 June 1983 the plaintiff was virtually pain free and able to do a full range of extension and flexion exercises including situps.

1. Mr Bye, an orthopaedic surgeon, accurately described the plaintiff as a tall, thin, almost emaciated man. It was his opinion that his general physique was inadequate to enable trim to properly cope with the stresses involved in the work of a slaughterman. By x–ray examination he detected a slight loss of height at the L4–5 level. In his opinion this condition probably existed prior to May 1983 but could well have been asymptomatic as claimed by the plaintiff. I accept Mr Bye's opinion that, having regard to the plaintiff's age, his general physical capacity and the condition of the disc at the L4–5 level, it was possible that a strain such as the one I have found occurred at work in May 1983, caused the plaintiff's previously asymptomatic lower lumbar spine to become painful.. There are no objective signs to indicate whether or not the incident in May did in fact cause an onset of symptoms and if so, the severity of such symptoms. According to Mr Bye, assessment of those matters depends upon the veracity of the plaintiff's description of his pain.

1. The plaintiff agreed that he returned to work on the 21 June 1983 but claimed that, by reason of the pain in his back, he was unable to carry out all of the duties he had previously been able to carry out. He said that he required assistance to lift some of the animals onto the chain so they could be taken away for dressing by other slaughtermen.

1. As well as the slaughter of cattle, the plaintiff's work required him to slaughter sheep and rams. To slaughter these animals each sheep or ram was driven into a restrainer where it was stunned. The operation of a lever then released the stunned animal to fall onto a specially constructed table at which the plaintiff stood. His task was to pull the head of the animal around a specially positioned stainless steel post and cut its throat. A hook was placed in one of the hind legs and the carcass carried off on a moving chain to be dressed by others. This work did not involve any bending although on occasions, some limited amount of lifting was required to hook the leg of the carcass onto the chain.

1. I accept the evidence disclosed by the records of the defendant company, and find that, apart from some period of leave when there was no work at the abattoir and a period of holiday, the plaintiff remained at work continuously from the 21 June until the 30 December that year. During this period the plaintiff slaughtered both cattle and sheep.

1. I accept the plaintiff's evidence that in October 1983 there was another incident at work which produced pain in his back. The evidence is insufficient to enable me to make any finding other than on 28 October 1983, whilst slaughtering either cattle or sheep, the plaintiff experienced an onset of pain in his back. He consulted Dr Lloyd's partner on that day and was found to be tender at the L1–2 level on the right side. A diagnosis of lumbar strain was made and he was again referred to physiotherapy. Physiotherapy continued until the 11 November 1983 when he was found to be pain free and with a full range of movement.

1. I reject the plaintiff's account of extreme pain during the period between June and December 1983. It is inconsistent with the other evidence that I have referred to. I find that during that period, apart from the times he was undergoing physiotherapy, the plaintiff was virtually free of symptoms. No doubt, having regard to the initial accidental injury in May 1983, he suffered discomfort in his back from time to time and to a degree which varied according to the strenuousness of the work he was required to do.

1. The plaintiff said that he continued to work until the 30 December 1983 but suffered another accident at work on either that day or the previous day, which was responsible for another bout of symptoms in his back. He said that he did not report this accident nor seek any treatment in the hope that the symptoms would disappear over the short New Year holiday break. He did not return to work after that break and has not worked at all since the 30 December 1983. I am unpersuaded that there was any such separate accident in December 1983.

1. I accept Mr Bye's evidence that the plaintiff's pre–existing condition, especially the narrowing of the disc space at L4–5 level, made him vulnerable to painful injury. I find that the stress involved in pulling on the tail of a stunned beast in May 1983 resulted in an injury by accident. This accidental injury increased the plaintiff's vulnerability to further in jury. Also, it was responsible for subsequent periods of pain, the occurrence and severity of which depended upon the degree of stress to which the spine was subjected.

1. I find that throughout the second half of 1983, the plaintiff's back ached from time to time as a result of the lifting and bending his work required. These symptoms were caused either by separate minor accidental injuries or by exacerbation of the injuries he suffered in May and October. On only two occasions, were the symptoms of sufficient severity to require treatment. At no time between the 21 June 1983 and the 30 December 1983 were the plaintiff's symptoms so bad that he was unable to continue his work as a slaughterman. However, from time to time, the plaintiff was obliged to call upon fellow employees to assist him to free a beast caught in the crush or to position an animal after slaughter so it could be taken away on the moving chain. I find that as a result of the accident in May and the subsequent frequent stresses to which his back was subjected in the course of his work with the defendant, the plaintiff's physical capacity for working was reduced. However, by the 30 December 1983, it had not been reduced to the point where he was disabled from working.

1. From the foregoing it follows that the plaintiff has established that he suffered an injury or injuries by accident and such injury or injuries arose out of and in the course of his employment with the defendant. The defendant is therefore liable to pay compensation "in accordance with the provisions of Schedule I".

1. Insofar as is material for the purposes of this case, Schedule I provides, by r3(1), "subject to this rule, where partial incapacity for work results from an injury sustained by the worker, the compensation payable under this Act is … a weekly payment at the relevant compensation rate reduced, in the case of a period of partial incapacity, by the weekly amounts that the worker is earning or is able to earn in some suitable employment or business during that period."

1. In Arnotts Snack Products Pty Ltd v Yacob (1985) 59 ALJR 215 the High Court held that partial incapacity means a physical incapacity to do some of the things the worker was able to do prior to the occurrence of the injury by accident. Mason, Wilson, Deane and Dawson JJ, in a joint judgment said at 218:

"… the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working for or might reasonably be expected to work. Under s11(1) (for present purposes the New South Wales equivalent of r3(1)) an applicant's entitlement to compensation would depend on his loss of earning power."

1. Their Honours relied upon The Commonwealth v Muratori (1978) 141 CLR 296, a decision referred to in Black v Triffitt and Triffitt [1970] Tas SR 276.

1. In order to recover weekly payments as provided by r3(1) the plaintiff has to prove that on or after the 1 January 1984, by reason of the injury or injuries by accident, he suffered from a reduced physical capacity to do work as a slaughterman or in such other occupation as the plaintiff might reasonably be expected to work. I find that the plaintiff was suffering from such partial incapacity on the 1 January 1984 and thereupon became entitled to receive weekly payments. Upon a partial incapacity the plaintiff is entitled to receive a weekly payment at the "relevant rate" reduced "by the weekly amounts that the worker is earning or able to earn in some suitable employment or business".

1. The plaintiff said in his evidence in chief, that he did not return to work at the beginning of January 1984 because of the "problems with my back." I do not accept that evidence.

1. In order to comply with the requirements of the Department of Primary Industry concerning the export of meat to Islamic countries, the defendant was obliged to ensure that each animal was killed by a Muslim slaughterman. In the export meat industry such persons were in high demand.

1. On the 26 November 1979 the plaintiff was registered with the Australian Federation of Islamic Councils (AFIC) as a Halal or Muslim slaughterman.

1. Although the evidence was far from clear, I infer that in each State, the Muslim community have banded together in some structured way and manage their religious affairs by an elected council. All these councils together form AFIC which has an office in Sydney. The plaintiff said that at the time he was registered as a Muslim slaughterman, the only qualification required was to be a practicing Muslim.

1. During 1983 strong animosity grew up between the plaintiff and the members of the Islamic Council of Tasmania. The reason for this animosity was not disclosed at the hearing but it apparently reached the stage where allegations of assault and attempted arson were exchanged and court proceedings initiated. In September 1983 the plaintiff received the following document from the Secretary of the Tasmanian Islamic Council:

"NOTICE OF EXPULSION UNDER SECTION 13 OF THE CONSTITUTION"

Br L'Arbi Abbaci

6 Jabez Crescent

LENAH VALLEY TAS 7008

Dear Brother L'Arbi

It has been noticed that your behaviour and actions as a member of Tasmanian Muslim Association Inc for last one year has proved that you are guilty of conduct detrimental to the interests of the Association, the Muslim Community and Islam. The Council has evidence and documents to prove that guilty conduct.

Unless you give written apology about your behaviour, and stop your violent attitude in future, you will be expelled from the membership of the Association. Expulsion from the membership of the Association will automatically result in your deregistration as Muslim Slaughterman, registered by AFIC.

Your written apology and unqualified assurance about your future good behaviour should come before the Council Meeting to be held on Friday 14 October 1983 at 6 pm at the Islamic Centre.

Wassalam

Yours Brother in Islam

TASMANIAN MUSLIM ASSOCIATION INC

(sgd)    Fazluddin Parkar

           

Hon SecretaryPublic Officer"

1. The plaintiff did not apologise. He made it quite clear he did not consider there was any occasion for him to apologise, that he and his family had suffered a grave injustice at the hands of the Tasmanian Council and that he would never apologise to its members.

1. By a letter dated the 11 November 1983 the Federal Council wrote to the plaintiff and advised him that a report about his "unacceptable behaviour" had been received from the Tasmanian Council. The letter went on to say:

"You have shown no repentance and have not apologised to the Association. We have no choice but to suspend your registration for a period of 3 months."

1. The only effect of this notification was to further inflame the plaintiff's belief that he had suffered an injustice. He steadfastly maintained his decision not to apologise. Meanwhile, presumably because his licence had only been suspended and not revoked, the plaintiff continued at work in the manner I have described. I have little doubt that the psychological stressor of the escalating feud with the Islamic Council of Tasmania served to exacerbate the symptoms of pain the plaintiff was experiencing from time to time whilst at work.

1. On the 1 January 1984 the Department of Primary Industry introduced a new requirement. Muslim slaughtermen were required to be registered by both AFIC and the Australian Meat and Livestock Corporation. Further, they were required to carry an appropriate identification card at all times. No such card had been issued to the plaintiff because he was, at the end of 1983, under suspension by AFIC

1. I accept the evidence given by Mr Roberts, the then production manager of the defendant company. He said that the plaintiff came to work as usual on the first working day in January 1984. Mr Roberts told him he could not work as a Muslim slaughterman because he was not registered and did not have the identification card. Mr Roberts, who valued the plaintiff's services, asked him if he would settle his dispute with the local Muslim community so he could get the appropriate registration and resume work. The plaintiff still refused to apologise.

1. Over the next few weeks Mr Roberts asked the plaintiff on several occasions to resolve the dispute. At one stage Mr Roberts telephoned a member of AFIC in Sydney in an attempt to settle the matter. Mr Roberts offered the plaintiff other work in the abattoir until the dispute was settled. The offer included maintenance of the plaintiff's same rate of pay even though the work he was offered was ordinarily paid at a lesser rate. The plaintiff refused this offer. He made no complaint to Mr Roberts of pain in his back and I find that his refusal was based upon the belief that acceptance would injure his pride and smack of defeat at the hands of the Tasmanian Council. He believed that this Council had "taken his livelihood away". He said to Mr Roberts, "someone will pay; I will cut their arms off."

1. By the 17 February all the efforts on the part of Mr Roberts to settle the dispute had failed and the plaintiff was reluctantly discharged by Mr Roberts from the employ of the defendant. Since then the plaintiff has not worked at any employment and claims he cannot do so because of back pain.

1. Had there been no dispute and no suspension of licence I am satisfied that the plaintiff would have resumed work with the defendant in January 1984 and earned his ordinary income. Although suffering from a partial incapacity he would not have been entitled to receive any amount by weekly compensation as the weekly amount he was able to earn would have been the same as the "relevant rate".

1. Nothing has occurred between January 1984 and the date of trial to alter that situation. There is no evidence to suggest that his partial incapacity by reason of the accident or accidents at work in 1983 has increased. His failure to work since January 1984 is due to the dispute with the Tasmanian Islamic Council, the consequential loss of registration as a Muslim slaughterman and the persistent sense of grievance. Accordingly, the plaintiff's claim for payment of weekly compensation fails.