Ly v Australian Pharmaceutical Industries Limited
[2022] VCC 1772
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-21-01123
| VAN TAI LY | Plaintiff |
| v | |
| AUSTRALIAN PHARMACEUTICAL INDUSTRIES LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 16, 17, 20, 21, 22, 27, 28, 29 and 30 June 2022; 1, 4 and 21 July 2022 | |
DATE OF JUDGMENT: | 28 November 2022 | |
CASE MAY BE CITED AS: | Ly v Australian Pharmaceutical Industries Limited | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1772 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Workplace injury – negligence – whether system of work was safe – hazardous manual handling – whether system of work caused injury –credibility of plaintiff – pain and suffering – pecuniary loss
Legislation Cited: Civil Procedure Act 2008; Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2007; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Kondis v State Transport Authority (1984) 154 CLR 672; Czatyrko v Edith Cowan University (2005) 214 ALR 349; McLean v Tedman (1984) 155 CLR 306; Govic v Boral Australian Gypsum Ltd [2015] VSCA 130; Swain v Waverley Municipal Council (2005) 220 CLR 517; Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292; Tressider v Austral Stevedoring & Lighterage Co Pty Ltd [1968] 1 NSWR 566; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Chapman v Hearse [1961] HCA 46; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Wyong Shire Council v Shirt [1980] HCA 12; Deal v Father Pius Kodakkathanath [2016] 258 CLR 281; Kulczycki v Metalex Pty Ltd [1995] 2 VR 337; Richter v Driscoll [2016] 51 VR 95; Fox v Wood (1981) 148 CLR 438
Judgment: Judgment for the plaintiff. No finding of contributory negligence. General damages assessed at $200,000. Pecuniary loss assessed at $600,289
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley with Ms C Willshire | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms R Annesley KC with Mr S Martin | Wisewould Mahony |
HER HONOUR:
1The plaintiff, Mr Van Tai Ly, makes a claim for injuries he sustained while working at Australian Pharmaceutical Industries Limited (“API”) where he worked for about fourteen years. He had various roles there. In 2011, he started working as a “replenisher” in an area of the warehouse called the “A-Frame”.
2Mr Ly says the system of work was unsafe, in particular because it involved heavy lifting over shoulder height, and the unsafe system of work caused him a shoulder injury which persists and renders him unable to work.
3API says the system of work was safe and that no heavy lifting over shoulder height was required. His injuries did not result from any negligence on its part.
4It is necessary to say something about the role of a replenisher and the A-Frame to understand the case.
5API distributes products sold in pharmacies across Australia. The warehouse where the plaintiff worked is a very large building, comprising a number of areas.
6The A-Frame is a set of six shelving systems, three on each side. Each shelving system, or bay, is positioned at an angle so that, together, the shelving systems form an A shape. In the middle of the A-Frame runs a conveyor belt. On the external sides of each bay of the A-Frame are hundreds of columns in which individual packets of product is stacked. The A-Frame itself consists of shelving units with exterior columns, an internal conveyor, and a ledge running along the bottom of the A-Frame, which can be used as a step or to balance boxes on.
7On either side of the A-Frame are shelving units where the product is stored in boxes. In front of the shelving units, is a roller conveyer, down which boxes called “totes” are pushed.
8Behind the shelving units, shelves can be replenished by forklifts unloading boxes of product. The A-Frame area consists of the A-Frame and the shelving units on either side of the A-Frame. Between the shelving units and the A-Frame is an area for the workers to stand and work. This area is covered with rubber matting.
9The system is partly automated. Orders are entered into the system via computer. Open cardboard boxes – totes – are barcoded and sent down a series of conveyer belts. The A-Frame dispenses items according to the computerised orders. The product dispensed onto the conveyer belt inside the A-Frame makes its way up toward one end of the A-Frame, where it is tipped into a waiting tote. The tote then travels on through the rest of the system. There may be additional products that are required to complete the order that are not dispensed through the A-Frame.
10As the A-Frame dispenses its products onto the internal conveyer belt, the columns of product on the A-Frame become depleted.
11The job of a replenisher is to refill each column as it becomes depleted.
12To do this a replenisher takes product from the shelving units either side of the A‑frame, and inserts that product into the appropriate A-Frame column.
13When the A-Frame is in operation, an orange light indicates a column is low on product, and a red light indicates a column is empty of product. If an order cannot be completed because the column is empty, the tote will be sent to “Quality Assurance” (“QA”) and the order will be completed by hand.
14In addition to replenishing the A-Frame, most people who worked in the A-Frame would also do some work as “pickers”. This involves handpicking items required for an order. The orders are relayed via a headset. As the plaintiff has some hearing loss and English is not his first language, he did not work as a picker.
15At issue in this case is:
(a) whether the system of work in operation was a safe system of work;
(b) whether the system of work involved hazardous manual handling; and
(c) whether the work caused the plaintiff’s injuries.
16The parties dispute aspects of the system of work, in particular the pace of work, the weight of boxes, and the heights at which boxes of different weights were stored.
17The parties also dispute the training and supervision provided, and whether footstools were available for workers to use.
18For the reasons set out below, I am satisfied the plaintiff has established there was an unsafe system of work that caused his injury and that no defences are applicable. Judgment is entered for the plaintiff for pain and suffering in the amount of $200,000 and for pecuniary loss in the amount of $600,288 less any amounts required to be deducted pursuant to s343 of the Workplace Injury Rehabilitation and Compensation Act 2013.
Background
19The plaintiff was born in Vietnam in March 1956. He came to Australia in 1985. At that time, he described himself as being “healthy and strong”.[1] He worked in a series of heavy manual jobs: first, at a brick company for twelve years; then at a company that made sound barriers for nine months, and as a cold-storage warehouse worker between 1994 and 2004.
[1] Transcript (“T”) 180, Line/s (“L”) 8
20He started at API, initially as a picker and packer, and then as a forklift driver. He had a minor accident on the forklift, and it became clear that his hearing impairment meant it was no longer safe for him to work as a forklift driver. He moved to the A-Frame as a replenisher, working nine-and-a-half-hour days, four days a week.
21On 6 August 2015, the plaintiff says he sustained an injury to his right shoulder.
(a) The Defendant’s Incident Report dated 6 August 2015, [2] records:
“Description of Injury
Injury involving the bodily location shoulder (right)”
and
“MechanismMuscular stress while lifting, carrying, or putting down objects.”[3]
[3]Plaintiff’s Second Further Amended Court Book (“PSFACB”) 262
22The Valewood Medical Clinic notes dated 6 August 2015[4] record the plaintiff’s attendance at the work doctor as follows:
“packer at api
r shoulder pain 2 weeks was reaching for small packages on high shelf – not heavy init pain in trap and deltoid region but incr down arm, last 3d into r thumb and has numbness also saw lmo given pills.”[5]
(sic)
[4]Exhibit P8
[5]Exhibit P8
23The plaintiff’s WorkCover Claim Form dated 13 August 2015[6] notes:
“Right shoulder down to the thumb [caused by] [r]epeat action [when] replen in A-frame.”[7]
[6]Exhibit P1; PSFACB 58 and 316
[7]PSFACB 58 and 316
24On 10 August 2015 and again on 30 October 2015, the plaintiff underwent MRI scanning of his cervical spine[8] which revealed broad-based disc bulging with compromise to the left C3-4 neural foramen.
[8]Exhibit P13; PSFACB 167 and 170
25On 15 August 2015 and 30 October 2015, the plaintiff underwent imaging of his right shoulder[9] which revealed abnormalities of the rotator cuff and tearing of the supraspinatus tendon.
[9]PSFACB 169, 170 and 171
26On 13 November 2015, the plaintiff saw Mr John McMahon, neurosurgeon.[10] Mr McMahon notes:
“… He has severe right sided suprascapular and upper limb pain consistent with cervical nerve root compression.”[11]
[10]Exhibit P11; PSFACB 84
[11]PSFACB 84
27Mr McMahon referred the plaintiff to Mr Steve Csongvay.
28On 1 December 2015, the plaintiff saw Mr Csongvay. In his report,[12] Mr Csongvay noted:
“… [The plaintiff] is a 59-year-old right-handed storeman who presents here with right shoulder and arm pain. It is quite clear that he has a significant right-sided radiculopathy but in addition to this he also has associated shoulder pathology. He describes generalised aching in the shoulder with activity and also at night with inability to sleep on his right side.
On examination, he had reduced elevation in the right shoulder and demonstrated a painful arc syndrome with positive subacromial impingement and weakness in the supraspinatus. He also had moderate tenderness and irritability around the right acromioclavicular joint.”[13]
[12]PSFACB 115
[13]PSFACB 115
29On 9 February 2017, the plaintiff underwent right shoulder surgery with Mr Csongvay. In a report dated 18 May 2017, Mr Csongvay noted that at the three-month mark following the right shoulder surgery, the plaintiff was making “very good and steady progress with his recovery and he is responding very well to the physiotherapy and hydrotherapy”.[14] He noted that the plaintiff’s active mobility had improved and that “his post shoulder pain has now completely resolved but he is still experiencing some pain in the upper arm and in the neck”.[15]
[14]PSFACB 118
[15]PSFACB 118
30The plaintiff’s final consultation with Mr Csongvay was on 15 May 2018. At that consultation, Mr Csongvay recorded that the plaintiff had regained active shoulder elevation to 160 degrees with passive elevation to 180 degrees, abduction of 80 degrees, external rotation of 70 degrees and internal rotation to the level of the L1 vertebra.[16]
[16] PSFACB 124
31On 24 October 2018, the plaintiff was reviewed by Mr McMahon. Mr McMahon notes repeat MRI imaging showed the cervical stenosis was ongoing with compression of right C4 and C6 nerve roots.[17]
[17]PSFACB 93
32The plaintiff underwent four steroid injections, two into the shoulder and two into his neck. Mr McMahon noted that nerve root injections on 14 November 2018 and 5 December 2018 improved the plaintiff’s symptoms.[18]
[18]PSFACB 94
33Mr McMahon recommended he undergo a “two level anterior cervical discectomy and fusion”.[19] The plaintiff did not undertake this surgery. In his evidence, the plaintiff said he was concerned about the possible complications,[20] noted to be paraparesis, bowel and bladder disturbance, worsened radicular symptoms, and recurrent laryngeal nerve palsy.[21]
[19]PSFACB 86
[20]T222, L26
[21]PSFACB 94
34The plaintiff has had no further surgical treatment.
Credit
35The plaintiff’s credit was in issue in this case. There is some background to the way the trial unfolded that needs to be explained.
36On the first day of trial, the plaintiff made an application for specific discovery. The documents he sought included hazard reports, documents relating to the specific weight of items in the A-Frame and documents relating to the pace of work in the A-Frame. The plaintiff noted the apparent dearth of documents, in particular, the lack of documents going to risk assessment, and was concerned he would be prejudiced if such documents suddenly appeared mid-trial. I granted the application and the defendant commenced searches for relevant documents. The defendant located some additional documents. The trial commenced, and the defendant continued to search for discoverable documents.
37A jury was empanelled, and the plaintiff opened his case. The jury was taken on a view of the API warehouse to see the A-Frame and the A-Frame area.
38On the fifth hearing day, the plaintiff informed the Court that the defendant had just discovered a document that appeared to be “of utmost importance” to the case.[22] The document was identified as a “Task Analysis” (“the task analysis document”) and appeared to be a 2013 assessment of the role of a replenisher in the A-Frame. The document broke down each task required to be performed and noted the weights required to be lifted, the frequency of tasks, the distances required to be walked, and so on.
[22]T267, L18-19
39The plaintiff submitted that this document was likely to be relevant to the expert opinion he had obtained from ergonomist, Mr Mark Hennessy. The plaintiff sought an opportunity to provide the document to Mr Hennessy to see whether it altered his evidence, and to provide it to doctors who had prepared reports about the plaintiff, to see whether it had any impact on their opinions.
40The late production of this document raised a question as to why it had only just been located, as it appeared to relate to the very job undertaken by the plaintiff.
41The defendant says it was always its position that it had undertaken “risk assessments” for each of the jobs required to be performed at API. At this point, both the plaintiff and defendant’s counsel appeared to consider the task analysis document was a risk assessment. The defendant had not previously provided the task analysis document because it had not been able to locate it. Defendant’s counsel said there could be “risk assessment of a job without it being documented”,[23] and the fact that the defendant had standard operating procedures “compliments ” the fact that “we had in fact risk assessed those jobs because of the fact you can’t do a standard operating procedure unless you’ve done the risk assessment”.[24]
[23]T275, L22-23
[24]T276, L4-6
42The defendant said it relied on the task analysis document but only as “evidence of what it has always maintained which is that it risk assessed those jobs”.[25]
[25]T276, L9-11
43The plaintiff made an application to discharge the jury on the basis that there would be unreasonable delay occasioned by the late production of the task analysis document. That application was opposed by the defendant.
44I dismissed that application, as it was not known at that stage whether the delay would be unreasonable. I said I would hear further from the plaintiff, after he had an opportunity to confer with his expert witnesses.
45On day six of the trial, the plaintiff’s counsel renewed his application to discharge the jury on the basis that the task analysis document had substantially changed the case in the following way:
(a) the defendant had submitted that there had been no significant change in the system of work in the A-Frame since the plaintiff’s departure from the workforce;
(b) the jury had been taken on a view and had seen the A-Frame area as it existed in 2022;
(c) the shelving units on either side of the A-Frame that the jury saw showed two shelves above the height of the rolling conveyer;
(d) the task analysis document showed photographs which, when expanded, clearly showed three shelves above the height of the rolling conveyor;
(e) also shown in the photographs was a hook used to bring forward boxes on the shelving units;
(f) counsel had conferred with the plaintiff and had obtained instructions from the plaintiff that, after referencing the photographs, he now recalled there had been a three-shelf system which had changed, at some point during his employment, to a two-shelf system. Counsel said:
“I asked him whether he recalled a change to the system, and he was equivocal, but believed there was a change to the two shelf system towards the latter part of his employment.”[26]
(g) Counsel further said:
“I’m not suggesting that he’s not certain on his instructions with respect to the three shelves – he is. I’m suggesting there’s a bit of lack of clarity about the change and when it occurred. Indeed – and we have sought instructions from a co-worker who worked in the similar period - and she too has confirmed that a third shelf was in play.”[27]
[26]T299, L15-18
[27]T299, L23-29
(h) the plaintiff submitted the system of work the jury had seen was not the system of work that was in place during the entirety of the plaintiff’s employment, and that there was a change to the system at some unknown point;
(i) the expert opinion, including from the defendant’s medical experts, was predicated on a system of work that was not the system of work in place;
(j) the video the experts had been shown of the A-Frame in operation was of a two-shelf system;
(k) the trial would need to be adjourned to give all parties an opportunity to obtain expert evidence about the actual system of work in place;
(l) to avoid the waste of Court resources to date, the matter should proceed before a judge alone.
46The defendant submitted the plaintiff’s evidence had never been that the system of work had changed, and he had given specific evidence in answer to interrogatories about the number of shelves, and had also had the opportunity to see the A-Frame area on a view with his expert, as well as with the jury. The defendant maintained the system of work had not changed. Counsel for the defendant agreed that the photograph did show an additional shelf, but she would need to get further instructions about it, as her clear instructions were that the system of work itself had not changed during the plaintiff’s employment, nor since his employment.
47On the basis of the photographs in the task analysis document, and plaintiff’s counsel submissions as to both the plaintiff’s instructions, and the instructions from another worker who was being called as a witness, I considered there was at least a significant question as to whether the system of work changed during the period of the plaintiff’s employment. I considered that, in the circumstances, it was appropriate to adjourn the hearing to enable all parties to clarify instructions and seek further expert opinion. I did not consider it appropriate to hold a jury for days on end, and consequently discharged the jury. As the case had already taken five days of Court time, and substantial aspects of the plaintiff’s evidence had been heard, I considered it in keeping with my obligations pursuant to the Civil Procedure Act 2008 to proceed as a cause.
48Two days after this application and ruling, the defendant provided a series of affidavits from API employees in both the Dandenong warehouse, where the plaintiff had worked, and API’s Brisbane distribution centre. The upshot of those affidavits was the photographs that had been attached to the task analysis document showed the Brisbane warehouse, not the Dandenong warehouse. The affidavits confirmed that the Dandenong warehouse shelving arrangement in the A-Frame area had not changed during, or since, the plaintiff’s employment.
Defendant’s submissions on credit
49The defendant says the plaintiff is an admitted liar,[28] and a critical and cautious approach to his evidence is warranted.
[28]T351 and T366
50The defendant says the plaintiff is so unreliable as a witness of fact that the task of the Court in determining relevant issues is made almost impossible.
51The submissions put forward on behalf of the plaintiff in his application to discharge the jury were not matters upon which the plaintiff had given evidence-in-chief. Rather, his evidence-in-chief until that point in time had been that there had not been a change in the racking system.
52After the discharge of the jury, the plaintiff was cross-examined about the change in instructions he had provided to his counsel on this issue. Initially, he stated he had told the Court the truth in the case about the shelving,[29] and he had made a mistake because of the photos. He then tried to assert that there had been a time that there were changes to the racking.[30]
[29]T334
[30]T354, L4-6
53He then said he was confused by the photographs and had a poor memory. He admitted that, when he told his counsel the photograph from the Brisbane warehouse showed a hook he had made, he knew it to be a lie and that he lied.[31] The plaintiff was then unable to provide any satisfactory explanation as to why he had lied to his own counsel and permitted an application for a discharge of the jury to be made on a false basis.
[31]T366, L27
54The Court ought not entertain any submission that the plaintiff is confused because of language difficulties and is not a sophisticated man. He had available a diligent and careful interpreter, he has lived in Australia for many decades and has a reasonable grasp of the language, the matters about which he lied were not complex, he worked in the A-Frame area for four years and could be expected to remember the system of work, without the need for photographs to refresh his memory.
55The plaintiff has demonstrated a preparedness to lie to advance his interests and accordingly the Court should have significant reservations in accepting any of his evidence, particularly on contentious matters. Much of the case is based on factors such as the weight of the alleged boxes the plaintiff manoeuvred, the pace at which he had to work and how far, and how regularly he had to reach to manoeuvre boxes. The plaintiff ought not be believed, particularly when there is credible and objective evidence to the contrary.
56The defendant further submitted the plaintiff was an evasive witness. He refused to answer questions that were put to him in cross-examination and regularly provided non-responsive answers.
Plaintiff submissions on credit
57The plaintiff says he is a witness of truth and gave evidence as best he could. He notes the “uncanny” similarities between the Dandenong and Brisbane distribution centres,[32] and says his mistaken confusion between the two is “entirely understandable”.[33]
[32] T1018, L26
[33] T1018, L8
Findings on credit
58Mr Ly does have some understanding of English and would often start to answer a question before his interpreter had translated it. This caused confusion, as he also has significant hearing loss, so it was apparent that, on occasion, he was answering a question he thought had been asked, rather than the question he had been asked. On occasion he answered in English, but his responses were not always intelligible, and he had to be repeatedly reminded to answer in Vietnamese, and make full use of the services of his excellent interpreter.
59The plaintiff’s submissions do not satisfactorily explain why, after seeing the task analysis document, he had formed an apparent memory there were three shelves above the rolling conveyer and the system of work had changed.
60The obvious conclusion to draw is that he simply lied in order to try to advance his case. However, I am not satisfied this is the correct answer.
61A photograph is a very powerful piece of evidence. Both counsel and I assumed the photographs were of the Dandenong distribution centre, because they did appear so similar to the warehouse we had all seen. It was subsequently pointed out there were differences, but these were not immediately apparent.
62In the presence of a photograph that appears to show something different from what one’s own memory recollects, it is understandable one might conclude one’s memory was faulty and the photograph records the truth. It does cause me to pause when regarding the plaintiff’s evidence. It causes me to consider he might be a suggestible person, more ready to agree with things that are put to him than he perhaps should be.
63The defendant points to his evidence about the hook which is shown in the photographs. He told his counsel it was the hook he himself had fashioned at the workplace but, the defendant submits, he admitted he lied.
64The following exchange took place which is illustrative of the way much of the plaintiff’s evidence was given:
MS ANNESLEY:
Q:“You wanted this photo – this hook to be yours because it helped your case because it had a third shelf in it?---
A:That’s the hook, yes.
Q: You accept, don’t you, that hook has got two bends in it?---
A:As you could see the demonstrations that it’s bent like this in order for you to get the boxes.
Q:My question to you, do you agree that hook had two bends in it?---
A:Yes, two.
Q:And yet you’ve given evidence that when you made your hooks you only had one bend in it?---
A:That’s right, I only bend it once because I’m quite tall, I could use the hook to get the boxes.
Q:And yet, so you knew when you saw this photograph it was not one of your hooks because your hooks had one bend, not two? ---
A:(Direct) Yep. Yeah.
Q:Yes. So when you told Mr Stanley that this a hook you’d made, you knew that to be a lie?
A:(Direct) Yep.
Q: Is it yes? ---
A: (Through Interpreter) I lied.
Q:And do you lie because you just want to win?---
A:Because of my height the hook that I use was different, whereas this person here I had to make a different hook.”
HER HONOUR:
Q:“Mr Ly, just carefully focus on the question that is asked. Ms Annesley didn’t ask about how you used the hook, she asked a very specific question and I am going to get her to ask it again?---
A: I’m getting confused, I’m having a headache.”
MS ANNESLEY:
Q:“Do you lie because you want to win?---
A: No.
Q:Why lie then? ---
A:Sorry, I needed to clarify because I don’t understand. It’s very simple. This hook here was bent differently to the one that I bend, that’s all.”
MS ANNESLEY:
Q:“Why lie? ---
A:I’m not lying. It’s the bend here is a bit different to the one that I make.
Q:You lied when you told Mr Stanley this was the hook you made, didn’t you? Mr Interpreter could you - - - ?---
A:Correct.
Q:Why lie to Mr Stanley?---
A:Because this one here show a hook and the one that I made was also a hook.
Q:But why lie to Mr Stanley?
…
A:Because when I looked at the photo, I looked at it through and I told him that it’s very similar to the one that I made.
Q:When did you find out it was not the hook you made?---
A:Now when I’m asked to look at the hook I could see the end up here.”
INTERPRETER:
“Mr Ly is pointing up the top here, he realised that it wasn’t.”
MS ANNESLEY:
Q:“Have you only realised that this morning in court now? Is that what you’re saying?---
A:Yes, today when I looked at it closely I realised it wasn’t the one that I made.
…”
MS ANNESLEY:
Q:“Prior to me showing you this photograph and asking you questions about it, did you still think that was your hook?---
A:No, no, it’s not the one that I made. The one that I made which is bendable.
Q:In your answers to Her Honour you said, ‘This is a similar hook.’ That’s been your evidence?---
A:Correct.
Q:When did you realise this was a similar hook rather than your hook?---
A:Now looking at the photos closely I realise it’s not the one that I made. As I mentioned before the two are very similar but the one that I made was quite different.
Q:Prior to answering my questions, you did not know that was not your hook. Is that what you’re saying?---
A:Yep.
Q:You didn’t realise on Friday at about 2 o’clock when you saw your solicitors?--- ”
INTERPRETER:
A:“He realised at 2 pm at the solicitor’s office that it’s not the hook that he made.”
MS ANNESLEY:
Q: “So, it’s not just this morning in answer to my questions?---
A: Yes. I knew then that it wasn’t the hook that I made.
Q:And when you knew then, sorry, I withdraw that. Prior to finding out at two o’clock on Friday that that was not the hook that you intended to tell the court that it was indeed the hook that you made?---
A:It’s for the same purpose. The two look very similar. The one that I made, as Mr Ly demonstrated, it looks like that.
Q:That wasn’t my question. My question to you was prior to Friday at two o’clock when you found out this was not your hook, had you intended to tell the court that it was your hook?--- ”
INTERPRETER
“Do I need to repeat the questions because he’s not answering the questions.”
MS ANNESLEY
Q:“Can you repeat what he actually said and then I’ll repeat the question?---
A:The two hooks looks (sic) very similar as I said. I said it before, they look very similar. That’s the previous answer.
Q:Don’t worry about how the hooks look at the moment, I’m asking you on Friday at two o’clock you found out that this was not your hook, correct?--- ”
PLANITIFF
A:“Yes.
Q:And prior to finding that out, did you intend to tell the court that it was your hook, yes or no?---
A:No.
Q:No? Why not?---
A:It’s different to the one that I made.
Q:Yet you told Mr Stanley it was your hook that you made?---
A:Because the one that I made looked very similar to this.”[34]
[34]T366, L10 ꟷ T369, L16
(sic)
65This passage causes me to question to what extent, despite the diligent service of his interpreter, there was a degree to which propositions put to the plaintiff were “lost in translation”. It is not clear whether the plaintiff thought the hook he saw in the photograph was his hook, or was similar to his hook, whether he assumed it was his hook because he believed the photograph was taken in Melbourne and he was the person who had fashioned the hooks for the Dandenong warehouse around the time the task analysis document was produced in 2013. It is clear he was mistaken, and he acknowledged he “lied” about it, but it is not clear he is admitting to lying with the sort of deliberate intent one would usually afford that term, as opposed to admitting he was mistaken, and told a lie as a result of his mistake or confusion.
66I am not persuaded this was a dishonest, evasive or manipulative witness. He tried to assist the Court. For example he gestured freely, demonstrating the tasks he was required to undertake at API, even when this showed, as the defendant subsequently submitted, a greater range of movement than he had attested to. He gave the impression of someone who was very keen to ensure the Court had a good understanding of the task he was required to perform.
67I did form the view during his evidence that he was prone to exaggeration in order to emphasise what he was saying. For example his evidence about how much more work he did than others, and how hard and fast he worked, suggested a degree of exaggeration. He was a person who was clearly proud of his work ethic and work history, and his desire to impart the extent of his work capacity likely caused him to exaggerate. I did not attribute this exaggeration to an intention to mislead the Court but, rather, a desire to explain to the Court exactly how hard a worker he was.
68When he said he worked “five times faster” than a worker seen on video replenishing the A-Frame,[35] I do not take it in a literal way, but as an expression that his pace of work was significantly faster than that seen in the video.
[35] T211, L12-13
69The plaintiff struck me as an unsophisticated witness. I am not persuaded he would appreciate what would or would not be “good” for his case, so as to be able to tailor his evidence in the way suggested by the defendant.
70Because of the impression I had otherwise formed about him, being keen to try to assist, prone to a degree of exaggeration, and possibly a bit confused in his evidence, I do not find that his credit is significantly impugned.
71It was most unfortunate the task analysis document was only produced so late in the piece. This caused delay and confusion and resulted in the discharge of the jury. However, given that is how the events unfolded, I consider the plaintiff’s evidence must be carefully examined, but does not need to be disregarded.
System of work
72The plaintiff pleads he sustained injuries in the course of his employment which were caused by the negligence of the defendant, alternatively by the defendant’s breach of statutory regulations in relation to manual handling.
73The negligence alleged against the defendant boils down to an allegation that the system of work was unsafe. This is not a case that turns on a particular incident, or a particular occasion where negligent conduct is alleged.
74Rather, the allegation is that the system of work itself was negligent. The following particulars of negligence are pleaded:
(a) requiring the plaintiff to perform work which was too repetitive and at a quick pace;
(b) failing to have the boxes of medication at an appropriate height that did not require the plaintiff to reach above shoulder height;
(c) failing to have conducted any, or any adequate, risk assessment of the work duties in the A-Frame area;
(d) failing to have the plaintiff participate in any, or any adequate, risk assessment prior to moving him into the A-Frame area;
(e) failing to have at least six workers present in the A-Frame area on each working day;
(f) failing to provide the plaintiff with any, or any adequate, manual handling training;
(g) failing to provide a safe place of work;
(h) failing to provide the plaintiff with a system of work which prevented him from sustaining injury in the course of his employment;
(i) failing to maintain a safe system of work;
(j) permitting and/or requiring the plaintiff to work in a dangerous manner;
(k) failing to properly instruct the plaintiff;
(l) failing to properly supervise the plaintiff;
(m) failing to provide the plaintiff with safe equipment;
(n) failing to provide the plaintiff with any, or any adequate, assistance;
(o) failing to take reasonable care for the safety of the plaintiff in the circumstances;
(p) exposing the plaintiff to risk of danger or injury of which the defendant knew, or ought to have known;
(q) exposing the plaintiff to risk of injury which could have been avoided with reasonable care on the part of the defendant;
(r) failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the Regulations made thereunder;
(s) requiring the plaintiff to lift and/or carry loads at or above shoulder height in an outstretched manner.
75However, the evidence in the plaintiff’s case really went to the following propositions:
(a) the work was unreasonably fast paced;
(b) the work was repetitive and the plaintiff was not rotated through other duties;
(c) the work required frequent lifting of heavy boxes from shelving, with his arms outstretched and above shoulder height;
(d) the work required frequent awkward single hand lifting of columns of product.
76I have briefly described above the way the A-Frame operates. The product dispensed by the A-Frame is for small amounts of an individual item. A pharmacy that wants less than ten boxes of a particular product will have those products dispensed by the A-Frame. If, for example a pharmacy wanted twenty-three boxes of a particular product, three boxes would be dispensed from the A-Frame, and twenty boxes would be hand-picked by a picker. Typically, product is packaged into bundles of ten individual items, wrapped in plastic. These bundles are known as “inners”.[36] Each box would contain many inners.
[36]T826
77If the replenishers do not replenish the A-Frame columns quickly enough, they are depleted and cannot dispense the orders required. When the order cannot be filled by the A-Frame, the tote is sent to the QA team for completion.
78When the A-Frame is not in operation, workers either undertake picking work, or continue to replenish the A-Frame in preparation for the next time it is in operation.
79The A-Frame itself contains hundreds of different products. Popular products may take up multiple columns. Heavier products may not be filled to the full height of the column, lest the product lower on the shelf be squashed.
Work duties
80The plaintiff worked exclusively as a replenisher of the A-Frame area from November 2011 until 6 August 2015.
81His work duties required him to take boxes of pharmaceutical product from the shelving at the side of the A-Frame, carry the boxes to the A-Frame and unpack the box into columns on the A-Frame. The plastic wrapping around inners would be cut open and discarded. After a box was unpacked into the A-Frame, the box would be dismantled and discarded into bins located at the end of each bay.
82At times, the plaintiff was required to load boxes of “long stand stock”,[37] onto the rear of the shelving.[38]
[37]T834, L26-27
[38]Exhibit D4
83The task analysis document identifies the tasks performed for the role of “A Frame Picking and Replenishing”.
84Weights involved are identified as:
“Minimum single items – 25gm − Multiple items – 2 kg − Bulk packaging – 5kg – 7 kg.”[39]
[39]Exhibit D13
85The task analysis describes the frequency of tasks performed in a table format, with headings “Never – Rarely 0-2%, Occasional 3-33%, Frequent 34-66%, Constant 67-100%”.[40]
[40]Exhibit D13
86Tasks identified as “frequent 34-66%” are:
· Forward reaching with arms at shoulder height and above.
· Bending spine forwards.
· Reaching forwards or sideways greater than 30 centimetres from the body.
· Lifting at waist height boxes of product 3 kilograms to 7 kilograms.
· Carrying boxes from shelving next to A-Frame when replenishing only 5 kilograms to 7 kilograms.
87Tasks identified as “Occasional 3-33%” are:
· Holding and pushing upwards with single hand – while loading items below.
· Lifting at chest height and above.
· Twisting spine to side.
· Working with one or both hands above shoulder level.
· Lifting waist to shoulder – boxes of product 3 kilograms to 7 kilograms
· Exerting force with one hand or one side of body – when replenishing only.
88The Plaintiff worked nine-and-a-half hour shifts from 2.30pm until midnight, and also worked overtime from time to time. He worked four days a week, with Wednesdays off, and was typically stationed in Bay 6 or 7 of the A-Frame when it operated. When the A-Frame was not in operation, he was required to replenish the whole of the A-Frame.[41]
[41]T861, L7-9
Weights and heights
89There were two aspects of the replenishing job that require an assessment of the weights lifted by the plaintiff.
Weights in the A-Frame columns
90One aspect of the plaintiff’s work that involved weights was the replenishing itself. This involved opening up the plastic wrapping around the inners and placing the product into the designated column in the A-Frame.
91The columns are very high, and product must be restocked, preferably before a column is completely depleted. Therefore, the system of work is not to restock from the top of the column, but, instead, to lift up the product that is already in the column and restock from a convenient height, generally chest height, perhaps halfway up the column. This requires a replenisher to use one hand to lift the stock in the column and then either insert a metal “spacer” to hold the product at that level while filling the now vacated slots, or refill with one hand while holding the column with the other.
92In terms of the weights involved when slotting the products into the columns on the A-Frame, the plaintiff described the lift of the column of products as heavy at times when it was full. He estimated the weight that must be lifted as two to four kilograms.[42]
[42]T432, L19-25
93The plaintiff estimated that some of the products in the A-Frame, such as the hot gel tube, had a significant individual weight, some 200 grams, some as much as 400 grams[43]
[43]T433, L6-9
94Ms Jennifer Harding, a co-worker, gave evidence that the task of replenishing and lifting the A-Frame was heavy on the hand.[44]
[44]T463, L31 ꟷ T464, L2
Findings on weights in A-Frame
95The task analysis document identifies that up to a third of a worker’s time is spent “exerting force with one hand or one side of body – when replenishing only”.[45]
[45]Exhibit D13
96Although spacers or locks could be used to hold the weight of the column while replenishing occurred, the worker would still be required to lift the product with one hand in order to insert the spacer.
97The columns on the A-Frame which occupied most of Bay 7, and all of Bay 6, are 2.5 metres tall. A partially-depleted column could require a metre or more of product to be lifted. Although the product height and weight varies, even light products weighing just 25 grams could result in a weight of around 3 kilograms if around one hundred items were lifted at a time. This would be significantly higher for heavier items, though fewer items would likely be lifted at a time.
98I am satisfied that lifting the columns would involve single hand lifting of weights of around 3 kilograms from time to time. Many lifts would be lighter than this, some would be heavier.
Weights of the boxes on the shelves
99I now turn to the weight of the boxes that were stored on the shelving in the A-Frame area. The shelving to the side of the A-Frame had three levels in total: one level below the roller conveyer belt at about 80 millimetre height from the floor, a level above the roller conveyer belt at about 1240 millimetre height, and a second level above the roller conveyer belt at about 1690 millimetre height.[46]
[46]Report of Mark Hennessy, PSFACB 192
100Boxes of product were stored on each level of shelving. Product location was determined by a number of factors, including how fast moving the stock was, whether the box it came in could fit on the shelf, and the weight of the box.
101Each box might contain ten or more inners, depending on the size of the individual products and the size of the inners.
102The boxes varied significantly in their dimensions, as well as their overall weight. Boxes would be lifted by workers from the shelves, taken over to the A-Frame, and perched on the edge of the A-Frame for replenishing. Sometimes inners would be removed from boxes and taken to the A-Frame for replenishing without removing the box from the shelves.
103The plaintiff’s evidence was that the boxes on the top shelf were “quite heavy” and estimated they could be around 10 kilograms, while the boxes on the second shelf might weigh 10 kilograms, 8 kilograms and 5 kilograms.[47]
[47]T235
104Ms Harding gave evidence that boxes on the highest shelf could weigh “anything from 3 to about 8 kilos thereabouts, between”.[48] Ms Harding also gave evidence that she would ask the plaintiff to lift boxes because of the weights and height involved:
“Quite a few of us used to ask him to lift the boxes down for us because they used to be quite heavy or they’d tip over. Sometimes they’d actually tip off onto the belt and products have come out and hit you on the head and so we’d get him to lift them out for us.”[49]
[48] T463, L15-16
[49]T465, L5-10
105Mr Brent Scerri, production manager at API, gave evidence that, in the period 2011 to 2015, the weight of boxes stored on the upper shelf in the A-Frame area did not exceed 2 kilograms.[50] He rejected the suggestion the boxes on the top shelf were “quite heavy”, or there were boxes in the upper shelf of around 10 kilograms, or even between 3 kilograms to 8 kilograms.[51]
[50] T851, L19
[51] T851, L23-24
106He said the maximum weight of boxes on the middle shelf was 7 kilograms.[52] Mr Scerri said the slotting team determined the location of the product based on weight, height and frequency of the product moved.[53] The heavier boxes were put in the middle shelf, the heaviest boxes were put on the lowest shelf and the fastest-moving stock was also placed on the middle shelf.[54] Slower-moving stock and smaller lightweight stock was placed on the top shelf.[55]
[52] T851, L19
[53] T835, L26-27
[54] T835, L28 – T836, L2
[55] T836, L3-4
107The defendant says Mr Scerri’s evidence should be preferred on the question of weights or boxes on the top shelf, as the plaintiff’s evidence is unreliable, and Ms Harding showed herself to be hostile to the defendant, admitting to a previous “falling out”, and was plainly disgruntled.
Findings on weights of boxes
108I reject the evidence of Mr Scerri when it comes to the weights of boxes for the following reasons:
(a) It is inconsistent with the task analysis document, which identified the task of lifting up to 7 kilograms from waist to shoulder height, which suggests a height above the middle shelf;
(b) It is inconsistent with the Standard/Safe Operating Procedure,[56] which included the following advice: “If boxes are located on the top shelf and are to (sic) heavy this information must be reported to a Zone Leader/Manager”.[57] This suggests that weights of boxes on the top shelf are not consistent and may, on occasion, be too heavy. If weights never exceeded 2 kilograms, it is not clear why this caution would be included;
(c) It is inconsistent with his own answers to interrogatories, in which he stated that the maximum weight of boxes on “the shelves” was 7 kilograms.[58] The answer did not specify a weight for each shelf. If the defendant had a system of particular weights for particular shelves, I would expect that answer to have been given;
(d) There is a surprising dearth of documentation setting out the maximum weight of boxes to be placed on the top shelf, or on any shelf. I would expect that, if there was a policy to ensure no boxes on the top shelf exceeded 2 kilograms, that would be in writing to ensure the forklift drivers who brought the product to the rear of the A-Frame area and the slotting team who determined the location of product and the people unpacking loads, would consistently apply the policy and ensure boxes in excess of 2 kilograms were not placed on that shelf;
(e) There was no evidence from any person who worked in the “slotting team”, the people responsible for deciding on the location of product on the shelving and in the A-Frame, that the maximum weight of a box on the top shelf could not exceed 2 kilograms;
(f) The only evidence from people who worked in the A-Frame during the period of the plaintiff’s employment was from the plaintiff, Ms Harding and Mr Scerri. Mr Scerri worked there for only about six weeks. The absence of any supporting evidence for the proposition that the maximum weight was 2 kilograms weighs against Mr Scerri’s evidence on this point;
(g) Mr Scerri’s evidence that the maximum weight for items on the top shelf was not put to any other witness.
[56]Exhibit D6; Defendant’s Amended Court Book (“DACB”) 70-77
[57]DACB 74
[58] DACB 53
109The defendant runs a very large warehouse with a partly-automated system. The location of product is vital to the smooth functioning of the system. Mr Scerri gave evidence that the “replenishment team”, a separate team from the A-Frame replenishers, would replenish the shelving units via forklifts.[59] Boxes of product are placed in locations selected by the slotting team, and barcoded accordingly, to ensure that the correct product is in the correct location. The replenishment team use an “RF gun” to read the barcode and ensure the correct product is put in the correct location.[60]
[59] T825, L21-24
[60] T832, L19-23
110It is very surprising that no definitive evidence was provided about exactly what is in each location at any given moment. Instead, the evidence was that the location of product varied from time to time, and that the boxes on the shelves varied, as manufacturers might change the size and weight of the boxes they packaged product in. Boxes that were too large or unwieldy for the shelving unit might be decanted into more appropriately-sized boxes.
111The defendant criticised the plaintiff’s expert, Mr Hennessy, for not weighing a single box. The defendant also submitted it was implausible that the plaintiff would consider the boxes were “heavy”, given his previous work lifting far heavier 25-kilogram boxes of butter.
112The defendant notes the plaintiff did not initially report that the boxes were heavy. The Valewood Clinic, which the plaintiff attended on 6 August 2015, records that the plaintiff “was reaching for small packages on high shelf - not heavy”.[61]
[61]Exhibit P8
113Nor did the plaintiff comment on the weight of the boxes on his API injury intake form completed on 6 August 2015,[62] or in his Workcover Claim Form which was completed on 13 August 2015.[63]
[62]Exhibit P6
[63]PSFACB 58 and 316
114However, the issue is not whether the plaintiff subjectively considered the boxes heavy, nor whether Mr Hennessy weighed any of the boxes, but what the evidence discloses about the actual weight of the boxes. The fact the box the plaintiff lifted at the time of his injury may not have been heavy does not prove that no heavy boxes were on the top shelf.
115Given the evidence and the lack of documentation about what boxes were placed where, I am not satisfied that there was any system in place to ensure boxes on the top shelf did not exceed any particular weight. The location of product was determined by a number of factors, one of which was the weight and dimensions of the box in which it came.
116While it may have been the general practice to put lighter boxes on the top shelf, I am not satisfied that heavier boxes were not also placed on the top shelf.
117If a decision had been made that boxes on the top shelf were not to exceed 2 kilograms, it would need to have been communicated to everyone involved in the process of replenishing the shelves, from the forklift drivers, to the slotting team, to the A-Frame replenishers, who also unpacked boxes in the forklift area from time to time. There was no evidence that such a decision had been made, nor how it had been made, by whom, where it was recorded, or how it was communicated. This leads me to conclude that no such decision was made and no such practice was implemented.
118Having regard to the defendant’s answers to interrogatories, and the evidence of Ms Harding and the plaintiff, I am satisfied that, on the balance of probabilities, boxes of around 7 kilograms were placed on the top shelf. I am also satisfied that, having regard to the system of barcodes and the fact that any change of location would be required to go through the slotting team and would have consequences throughout the system, boxes of around 7 kilograms would have been placed on the top shelf consistently, not in an ad hoc fashion.
119The defendant submits that, regardless of the weight of boxes on the top shelf, the defendant had a perfectly reasonable system of work in place, which was for replenishers to take an inner from the box, which weighs a fraction of the weight of a whole box.
120The plaintiff agreed that he could take inners from the box, and agreed that, on occasion, he did so. However, when considering whether taking inners from the box was an alternative and reasonable system of work to lifting a box of product above shoulder height, one must also consider at least two other matters, the pace of work and the availability of footstools.
Pace of work
121The pace of work in the A-Frame area was dictated by the pace at which the A-Frame operated.
122The Court was shown two videos which showed workers in the A-Frame area. The first video dated 4 May 2021 showed a man who appeared to be working as a picker in the A-Frame area. He is also shown doing a small amount of replenishing of the A-Frame itself.
123The second video dated 20 May 2022, shows a number of workers replenishing the A-Frame.
124The defendant, in its answers to interrogatories sworn by Mr Scerri, said the video dated 4 May 2021 showed the “busiest time of a day”.[64]
[64] PSFACB 56
125The reliability of the video as demonstrating the pace of work was hotly contested. The plaintiff said the video did not show the actual pace of work, and the pace of work during his time in the A-Frame was “five times” faster.[65]
[65] T211, L13
126He also said, “sometimes I had to run and I also had to walk and walk fast”.[66]
[66]T424, L4-5
127Ms Harding gave evidence the pace of work was fast. She agreed the seventeen-minute mark of the second video showed workers working at a medium pace and the forty-minute mark showed a worker working at a steady pace.[67] She said the plaintiff probably worked “a bit quicker than that”.[68] She did not accept the first video was representative of the pace of work in the A-Frame.[69]
[67] T452, L12-21
[68]T542, L31
[69] T474, L15 – T475, L25
128Mr Scerri gave evidence that the start of the month is a busier time for the A-Frame because customers have a sixty-day trading term and order larger quantities at the start of the month.[70] At the start of the month, additional staff would be rostered on to work in the A-Frame.[71]
[70]T827, L19-22
[71]T828, L21
129Mr Scerri gave evidence the A-Frame operated for thirty minutes at 4.00pm, for sixty minutes at 6.00pm and for two hours at 8.00pm.[72]
[72] T831, L15-21
130He then said that was the way the machine used to run prior to 2015, but over the last several years “we now run pharmacy on am shift as well”.[73]
[73]T887, L20-21
131Mr Scerri said that the workers “work at [their] own pace in there”.[74] He described the pace of work in the A-Frame as “a good working pace”.[75] He said the plaintiff did not work faster than other workers “to [his] knowledge” and did not work faster than Mr Scerri,[76] himself, who had worked in the A-Frame for a six-week period prior to being a production supervisor.[77]
[74]T841, L22
[75] T841, L30
[76] T841, L31 – T842, L1-3
[77]T860, L25-27
132Mr Scerri said it was possible to stop the A-Frame machine and there were a couple of reasons the machine might stop – when too much work was going through the “induct” for the machine to keep up, or when the QA team could not keep up.[78] Mr Scerri said, typically, the machine would be stopped “a couple of times” a night “to give the opportunity for work to go to other areas”.[79]
[78] T843, L22-26
[79]T843, L19 ꟷ T844, L1
133If the work was moving at too fast a pace for the replenishers or pickers to keep up with demand, the totes into which product was dispensed would start to back up on the conveyor belt. They might also go to the QA team for completion.[80]
[80]T844
134In relation to the video dated 4 May 2021, Mr Scerri stuck by his sworn answers to interrogatories that they showed the “busiest part of a day”.[81] He considered the pace shown in the second video was good for two of the people seen, but the third person, “John”, “looked a bit slower than everyone else”.[82] He described the pace as typical of workers in the A-Frame in the period 2011-2015. He said he had never seen anyone run in the A-Frame, but agreed they walked quickly.[83]
[81] T886, L4-5
[82]T845, L1-2
[83] T845, L18-21
135Mr Scerri said, to his knowledge, workers did not get into trouble if the light system on the A-Frame came on, indicating that the stock was low or depleted.[84] His evidence was that, if a light came on, workers from other sections of the A-Frame, or from the QA section, would come over to assist and “support” the A-frame replenishers.[85]
[84]T848, L5-7
[85] T849
136Mr Scerri said the A-Frame would only be fully replenished at the start of the month.[86] Otherwise there was “very minimal” change to the condition of the replenishment of the A-Frame between the end of the night shift and the start of the next afternoon shift. However, he agreed with the general proposition that what went out from the A-Frame had to be put back in.[87]
[86] T861, L23-25
[87] T869, L17
Findings on pace of work
137In examination-in-chief, I formed the view that Mr Scerri was doing his best to answer questions honestly and carefully. However, the limits of his knowledge were apparent. Many of his responses to questions were “not to my knowledge” which, when the limits of his knowledge were exposed under cross-examination, meant I could not be satisfied that particular things had not happened, as first seemed to be the case. For example, he said Ms Harding had not used the kill switch on the A-Frame on more than one occasion, made complaints about the pace of work in the A-Frame, or called pin notices in relation to the A-Frame “to his knowledge”. However, it became apparent that, for at least most of the period during which the plaintiff worked in the A-Frame, there is no reason why Mr Scerri would have had knowledge of any of those matters. He was not in a supervisory or management position during that period.
138Mr Scerri conceded he was only aware of what was going on in the A-Frame “to a degree”.[88] He did not know the minutiae of what was going on in the A-Frame. He was not a zone leader. He was not on the slotting team, was not a safety manager, and was never the plaintiff’s supervisor. He says “to a degree I interacted with the - the team working in there” when he worked as a storeperson.[89]
[88] T859, L15-16
[89]T876, L25-26
139He did not know whether data relating to the online customer portal system existed during the period of the plaintiff’s employment.[90] He did not know when the system of A-Frame data was introduced to the defendant, and he was not aware of whether computerised information about pick rates and input rates existed.[91] His knowledge of what systems existed for capturing data about product at each step along the way from receipt into the warehouse until dispatch, was incomplete and, consequently, not entirely reliable.[92]
[90]T900, L17-20
[91]T901, L10-22
[92]T902 ꟷ T908
140In cross-examination, his evidence became somewhat evasive. The following is an example:
MR STANLEY:
Q:“The A-frame machine is a very sophisticated piece of equipment, isn’t it?---
A:Yes, it is.
Q:And I think you told us it’s owned and in part operated by Schaefer, an international company to your knowledge? ---
A:That’s correct.
Q:It’s in essence built for efficiency, it’s far more efficient than the old pink slips that you used to have out at Rowville. Isn’t that so?---
A:I’d agree.
Q:And I suggest to you that beyond being built for efficiency, it’s built for speed. Do you accept that?---
A:Yes.
Q:And it’s built to achieve some significant increases in the picking rates that can be performed in a distribution centre as per manual picking?---
A:Yes, that’s correct.
Q:And indeed we can just see by its makeup, 2.5 metre columns shows to us the volumes to which that machine is intended to conduct. Do you understand? We don’t build the machine with just 50 centimetre columns, with the idea that it drops out 15 products on a shift. We build it with 2.5 metre columns so that it can house a number of items so that they may be picked quickly and efficiently. Do you accept that?---
A:Yes.
Q:And indeed I think you’ve told us that some of the products in the columns even have two or three columns to themselves. Is that so?---
A:More than two or three.
Q:You have more than one because the number of that product is going to be leaving that machine at a rapid rate, do you not?---
A:Please rephrase?
Q:You need more than one column of those really busy products, because that’s the sort of number that the machine will pick through a shift. That’s got to be so, doesn’t it? ---
A:To a degree, yes.
Q:Well, why do you have more than one column dedicated to the same product?---
A:To pick the stock.
Q:To pick the stock, because you know it’s going to go through at least one column in a shift?---
A:Not necessarily.
Q:Let’s just look at the mathematics if we can. You’ve told us that the machine can pick 50,000 at the start of the month. Is there a more approximate average to which a regular shift outputs from that A-frame machine?---
A:For the volume?
Q:For the shift, yes?---
A:Approximately 30,000.”
HER HONOUR:
Q:“When you say 30,000 on average, is that for what?---
A:In the shift.
Q:What’s the shift?---
A:From 2.30 till midnight.
Q:From 2.30 to midnight?---
A:Yes.
Q:And is that now?---
A:No.
Q:So we’re talking about 2011 to 2015?---
A:Yes.”
MR STANLEY:
Q:“How do you know that figure, Mr Scerri? How do you know what it was outputting back then?---
A:It’s approximate.
Q:But you’ve got to have some source and understanding of giving an approximate in court. How do you know that?---
A:The pharmacy volumes.
Q:Where do you find the pharmacy volumes? Are they a computer record?---
A:No.
Q:Well, what does that mean then?---
A:It’s an approximate.”
[HER HONOUR:]
Q:“The pharmacy volumes. What are pharmacy volumes?---
A:The units picked for the night, or ordered by the customer.”
MR STANLEY:
Q:“Right. So, you’ve given evidence in this case that the approximate average output in an evening shift in 2011 through to 2015 is 30,000?---
A:I’m referencing 2015.
Q:Right. And how seven years later are you able to recall those matters?---
A:It’s an approximate.”
HER HONOUR:
Q:“Yes, but is it just something that you have in your head or is there some document or some program? I’m not holding you to the specifics of the number?---
A:Yeah.
Q:I want to just know how you know that it was roughly 30,000?---
A:The slotting team.
Q:The slotting team?---
A:Yeah, the slotting team who - - -
Q:What does that mean?---
A:Who look after and maintain the machine.
Q:So they’ve told you, or - - - ?---
A:Yes.”
MR STANLEY:
Q:“Have you made enquiries of the slotting team as to the rates that were being outputted in those days?---
A:Can you please ask the question again?
Q:Have you made enquiries of that slotting team in order to familiarise yourself with the sorts of numbers that that machine was outputting in those days?---
A:Per hour, no.
Q:Per shift?---
A:Yes.
Q:And does the slotting team to your knowledge have documents to which they could research and then provide you with the approximates?---
A:No.
Q:Well, let’s work then on the basis that there’s 30,000 units racing down that conveyor in the middle of the A-frame each shift. You’ve told us that the A-frame picks in that afternoon shift for 3.5 hours. If one does the quick arithmetic you see the machine pushing out 8570 products per hour. If we divide that by six to see what’s coming out of each bay on an approximate we get to 1428. 1428 products on average out of a bay every hour, tickle, tickle, tickle. Is that so?---
A:Yes, that’s correct.
Q:In that video did we see products tickling down from the A-frame?
…
Q:Did you see product tickling down on the products on the A-frame?---
A:Not as such.
Q:You wouldn’t expect it to because it’s in the morning, would you?---
A:I would.
Q:You would. How many products are ticked out per hour in the morning?---
A:Can I give further clarification?”
HER HONOUR:
Q:“Can you give?---
A:Give - just to the - to the question of - so, pharmacy is processed in the morning.
Q:Now?---
A:Half - yes, half on morning shift, half on afternoon shift.
Q:All right. So, what are the hours of operation for the A-frame now?---
A:Approximately five to seven.
Q:Can you just tell me the entire day, the hours of operation of the A-frame, and give me am’s and pm’s?---
A:Okay.
Q:On a general day?---
A:Okay. So, 5 am.
Q:5 am?---
A:To 7 am.
Q:Yes?---
A:Afternoon shift would be four to the 4.30.
Q:Yes?---
A:And then a couple of hours - what would that be, seven - seven to nine.
Q:All right. So, it’s now operating on average, is this correct, four and a half hours a day, the A-frame?---
A:Approximately, yes.
Q:And in 2011 and 2015 it was operating three and a half hours in the afternoon. What was - what else was it operating, at all or not?---
A:Just those minimal units.
Q:Just minimal units?---
A:500 to 1000 units for the day.
Q:So, not even - just a few minutes maybe?---
A:Yes. Yeah.
Q:Yes, all right, so really it was three and a half hours and now it’s four and a half hours?---
A:Yes.
Q:And why is that, have orders picked up substantially or what’s happened?---
A:We pay a 15 per cent shift loading on afternoon shift, so by moving half the work to am shift we’re still able to fulfil that work on morning shift and still meet customer expectations.
Q:And has the number of items dispatched generally from the warehouse changed substantially between 2015 and now?---
A:No.
Q:You mentioned before that Victoria is dispatching or that distribution centre is dispatching to Queensland, South Australia and Western Australia as well as Victoria, is that the same as it was in 2011 to 2015?---
A:That’s only on the retail.
Q:That’s only on the retail. Pharmacy only to Victoria?---
A:Yes, that’s correct. That’s correct.
Q:And that’s what it was in 2011 to 2015?---
A:Yes. Sorry, there’s a couple of orders that go to Tasmania but only 100 to 200 units.
Q:All right. So, nothing that’s very substantial in terms of the overall operation?---
A:That’s correct.”[93]
[93]T890, L20 ꟷ T895, L13
141It is apparent from this evidence, extracted from Mr Scerri with some difficulty, that in fact the A-Frame is currently operating for approximately 30 per cent longer each day than it was during the period of the plaintiff’s employment. However, based on Mr Scerri’s evidence about product dispensed per shift, the amount of product has remained the same in the time since the plaintiff’s employment.
142This must mean that, if the A-Frame is dispensing the same amount of product, but operating 30 per cent longer, the rate at which the A-Frame is operating is slower now than it was during the period of the plaintiff’s employment.
143While the overall amount of stock being replenished may not have changed over the course of the shift, the pace of work during the operation of the A-Frame must have been faster than shown in the video, and must have been faster than it is now.
144I note that the entirety of the A-Frame operation fell within the plaintiff’s shift, while now the A-Frame operation is split over two shifts. So, not only must the A-Frame have been operating at a faster pace, but the period of that faster operation fell entirely within the plaintiff’s shift.
145This leads me to treat Mr Scerri’s evidence with caution. He maintained that the video showed the busiest part of the day, but even when it became clear that the A-Frame was operating for an additional hour currently, he did not concede that the pace of work while the A-Frame was in operation, would have been faster during the plaintiff’s employment.
146It is also difficult to accept that workers could work entirely at their own pace. This just does not make sense in the context of a partially-automated system which requires manual input of product into the A-Frame to keep pace with orders. The notion that workers choose their own pace cannot be correct. They must keep pace with the machine. When the machine is not in operation, it is simply not believable that workers can, themselves, decide how fast they wish to work. The A-Frame has to be replenished, if not totally, at least sufficiently to ensure that it can operate again on the next shift. A worker has a fixed shift. It would be an extraordinary employer who was content to continually pay overtime to a worker who elects to work at “their own pace” and does not replenish the A-Frame sufficiently within their allotted shift to meet the orders that need to be filled in the next shift. Alternatively, it would be extraordinary if a worker who “chose” a slow pace to work and failed to replenish the A-Frame sufficiently within a shift was not sanctioned in any way by the employer. This is implausible.
147In fact Mr, Scerri did accept that, in general, whatever was dispensed from the A-Frame had to be replenished into the A-Frame.
148The fact that the A-Frame is regularly stopped twice a shift, suggests the pace of work is faster than demonstrated in the video. The video did not demonstrate a pace of work that would come close to requiring the A-Frame to stop so that workers could catch up. In fact, Mr Scerri agreed that he did not see product ticking down from the columns “as such”.[94] Certainly one did not observe product rapidly dropping in the columns as one would expect for the machine to have to be stopped, or for multiple red lights to be tripped.
[94] T893, L27-28
149Because of this I do not accept that the video represented the busiest part of the day, nor was it representative of the pace of work during the plaintiff’s period of employment.
150Given Mr Scerri’s lack of knowledge about the operation of the A-Frame between at least 2011 and 2013, I am not satisfied that his evidence that the A-Frame would currently regularly stop twice a night, accurately reflects what happened during that period. If that is what is happening now, when the A-Frame is operating at a slower pace, then one can extrapolate that more frequent stoppages occurred during the plaintiff’s employment. This is consistent with the evidence of Ms Harding.
151I also do not accept the plaintiff’s evidence about the pace of work. He gave evidence that the A-Frame was in operation throughout his shift, which was not correct. However, I do accept that, during those three-and-a-half hours when the A-Frame was in operation during his shift, the pace of work was faster than that shown in the video, and at times significantly faster, as the machine had to be stopped in order for the replenishers to catch up with the orders.
152Ms Harding’s evidence corroborated the plaintiff’s evidence that the work could be fast paced:
Q: “And what would that mean to the pace of your work?---
A:We would have to run. We would be running on our feet, and Ly would have to be helping me, and I would be helping Ly, and someone down end - we’d be all helping together to try and get those filled up as quick as we could.”[95]
[95]T468, L2-6
153This finding is consistent with the observations of both Dr George Wilson and Associate Professor Umberto Boffa, who attended the workplace for the purposes of a worksite assessment.
154In his report dated 15 November 2015,[96] Dr Wilson advised he conducted a worksite assessment on behalf of the defendant on 11 November 2015 in the presence of the defendant’s HR Manager, Mr Michael Eagles. Dr Wilson reported as follows:
“… I was shown through his normal area, which is the A frame product sorting. This section is where product is placed into vertical shelving. The shelving height above the workbench would be a couple of metres. Consequently the work involves significant above shoulder reaching and although there is a step provided, it does not significantly do away with the above shoulder work. Even though the products themselves are quite small and lightweight, it is the repetitive above shoulder activity … .”[97]
[96]Exhibit P15; PSFACB 268-270
[97]PSFACB 268
155Associate Professor Boffa also undertook a worksite assessment, and in his report dated 17 May 2017,[98] made the following observations:
“Work is fast paced and involves repetitive decanting of shelves to pack orders with continuous overhead reaching.”[99]
[98]PSFACB 290-294
[99]PSFACB 291
156I am satisfied on the evidence that the work in the A-Frame area was fast paced and was too fast for workers to always be able to keep up with the speed of the A-Frame.
Use and availability of footstools
157There were footstools available for use in the A-Frame area.
158It is not clear how many footstools were available for use in the period from 2011 to 2015. The plaintiff gave evidence there were two footstools available. Ms Harding said she often had difficulty finding the stools.[100] Mr Scerri said there were four stools, two each side.[101] There was no explanation as to why a footstool was not provided for each bay, given that there were six bays.[102]
[100]T465, L1-3
[101]T835, L16-20
[102]T829, L29-30, L
159The evidence was inconsistent about the type of stool available. Ms Harding described “small steel stools”, stating “we didn’t use them very much because they were dangerous”.[103]
[103]T464, L14-16
160Mr Scerri described a “foldable ladder”, different to the current offering, stating it was “a white smaller step” made of plastic and “[s]mall, approximately 20 to 25 centimetres in height”.[104]
[104]T855, L1-9
161The plaintiff’s expert witness, Mr Hennessy, said the availability of a footstool could itself create a hazard.[105] On the one hand it raises a worker’s height, but necessarily increases the horizontal distance over which a lift must be performed.[106] He said:
“So the stool is not a panacea. It’s also a little bit impractical because that’s quite a large workstation when you’re walking up and down all the time and you would have to carry it with you wherever you sent to or come back and retrieve it, and it could be a tripping hazard if you just put it down where you last moved it. So the step stool is - it’s not an ideal solution.”[107]
[105]Exhibit P14; PSFACB 229
[106]T697, L28-30
[107]T698, L7-14
162The defendant says workers were directed to use a footstool to retrieve boxes from the upper shelf of the shelving area:
“When taking items off the top shelf of the racking area ensure you are using a safety step where required. (don’t pick from this shelf if you have to reach by using your tippy toes).”[108]
[108]DACB 72
163The plaintiff said that, if he could not reach a box on the upper shelf, he would use a footstool, but that he did not regularly need a footstool as he was quite tall.[109] He said his colleagues regularly asked him to retrieve boxes from the top shelf for them, as he was the tallest worker. Ms Harding concurred with this evidence.
[109]T366, L20; T420, L8-15
Findings on footstools
164The Court saw footstools at the workplace when taken out for a view. These were large, quite cumbersome items. It is not clear whether they were on wheels, but they would not be able to be wheeled along the rubber matting in any event.
165It seems unlikely that these were the same footstools that were in use during the plaintiff’s employment. I am unable to be satisfied what footstools were in use then, as the evidence of the witnesses differs, and there does not appear to be any document confirming what variety of footstool was available.
166The lengthy videos showed workers very rarely using the footstool to reach items.
167The reality is that, when work is fast paced, as I have found, most of the time workers will not go looking for a footstool, pick it up, move it to the position required, and then use it to reach an item, if, in fact, they can reach the item using a hook, or by stretching.
168Indeed, the video showed workers stretching on tippy toes, despite being told not to do so in the Standard/Safe Operating Procedure.
169A footstool was not available for each bay, which would have required six footstools. At best, there were two footstools per side, at worst, one footstool per side.
170Given the lack of familiarity Mr Scerri had with the A-Frame operations during the plaintiff’s employment, I cannot be satisfied that his evidence about the availability of footstools was correct during the period of the plaintiff’s employment. I do not know how many footstools were available, but am satisfied that there were insufficient footstools for each worker, they were not invariably used, with workers preferring alternative methods to reach higher, such as standing on tippy toes, using a hook, or asking the plaintiff to lift boxes from the highest shelf.
Rotation of work
171The plaintiff submitted that a lack of rotation of duties also contributed to his injuries and represented an unreasonable system of work. He said he was performing “this repetitive task nine and a-half hours a day, no rotation, not going through the factory to do another area”.[110] Mr Hennessy gave evidence that the different tasks associated with the plaintiff’s role involved “job enlargement” rather than job rotation”.[111]
[110]T129, 21-23
[111]T759, L27 – T760, L10
172The defendant says the work process associated with replenishing the A-Frame has a variety of tasks, and the variety within that role provides more than adequate rotation.
[176](Supra) at paragraph [168]
259The central purpose of the Regulations is to minimise the risk. The majority in Deal v Father Pius Kodakkathanath,[177] said of the statutory duty to control risk:
“… An employer cannot escape responsibility by identifying that there is one or even a number of ways of carrying out the task which do not attract such risks and assuming, without ensuring so far as is reasonably practicable, that the task will be carried out in those ways. Unless and until the employer has done what is reasonably practicable to prevent the employee performing the task other than in the safest way, the employer will be potentially liable for breach of regs 3.1.1 and 3.1.2.”[178]
[177][2016] 258 CLR 281
[178](Supra) at paragraph [53]
260In this case, the employer has not identified ways of carrying out the task that do not attract the risks. Even if it were practicable to always use a footstool, this would not eliminate the risks of hazardous manual handling, due to the additional distance the worker is required to reach when using a footstool.
261The defendant has breached Regulation 3.1.1 by failing to identify the manual handling risk and Regulation 3.1.2 by failing to control the risk.
262Had the defendant identified and controlled the risks, by reducing the height and/or weight the plaintiff had to lift, on the balance of probabilities, the plaintiff would not have sustained the injury.
Contributory negligence
263The defendant says the plaintiff’s own negligence contributed to his injury in two ways; firstly by his failure to use the footstool and, secondly, by his failure to ask for assistance.
264The question of whether an employee’s conduct amounts to a failure to take reasonable care is a question of fact.[179]
[179]Kulczycki v Metalex Pty Ltd [1995] 2 VR 337 at paragraph [8]
265The defendant says it devised, implemented, maintained and enforced a safe system of work and the plaintiff could, and should, have sought assistance.
Findings on contributory negligence
266Dealing with the second part first, the unsafe system of work was caused by the requirement to lift boxes of up to 7 kilograms from a shelf above shoulder height. It was contributed to by the fast pace of the work, which meant using a footstool was not practical, as well as the lack of availability of footstools for every worker.
267The plaintiff’s evidence was not that he could not do the work, or required assistance in doing the work. He was proud that he could do the work, that he did not need assistance, and that he provided assistance to others, being the tallest worker and one of the few men to work in the A-Frame area.
268Until the point at which he suffered an injury, the plaintiff was able to carry out the work and there was no apparent need for him to call for assistance. As the defendant pointed out, the plaintiff had engaged in heavy manual labour throughout his working life and had lifted far heavier boxes, weighing up to 25 kilograms, in his previous employment. There was no reason for the plaintiff to think he required assistance.
269It is not clear what assistance the plaintiff could have been provided with which would have altered the system of work.
270Dealing with the use of the footstools, the evidence, including the video evidence, is that the footstools were used intermittently at best. As set out already in these reasons, the pace of work and the availability of the footstools, means it was not reasonable to expect the plaintiff to use a footstool every time he had to lift a box from the top shelf. Further, the use of a footstool would have reduced the load, but not necessarily enough to eliminate the risk, because the use of the footstool would also have increased the distance of the plaintiff from the product.
271I am not persuaded the plaintiff was negligent in failing to take reasonable care for his own safety.
Assessment of damages
General damages
272The plaintiff presently suffers from an aggravation of cervical spondylosis and an aggravation of degenerative change in the right AC joint.
273He has had four cortisone injections into the shoulder and underwent shoulder surgery on 9 February 2017. He has had further surgery recommended, but has declined this option due to concern about possible side effects and his relatively poor outcome from the shoulder surgery.[180]
[180] T26, L26-31
274At the time of his injury, and despite an extensive working history involving heavy manual labour, the plaintiff was an active man and had no back pain. He had occasions of back pain over a thirty-year clinical history, which had resolved.
275The plaintiff rode his bike to and from work every day and had a particular interest in converting standard bicycles to electric bicycles.[181]
[181] T224, L18 – T225, L22
276He described his current situation thus:
“Always have pain around my shoulder and my neck. I can’t sleep at night. I feel numb around the hand. I can’t hold things.”[182]
[182]T223, L23-25
277He uses pain medication and heat patches.[183]
[183]T224, L5
278His son gave evidence that the plaintiff continues to attend family social events and see his children, but had become more irritable and short tempered, and kept to himself a bit more.[184]
[184] T613, L31 – T615, L1
279The defendant submits the impact of the plaintiff’s injuries is negligible. He takes a modest amount of medication, and remains active. His pre- and post-activities are largely unchanged. He demonstrated a good range of movement in the witness box. The defendant submits the lack of evidence from his wife and other potential lay witnesses as to the impact of his injury on his life is significant, and the Court ought to infer such evidence would not have been of assistance to the plaintiff.
280The medical evidence suggests the pain is not constant and varies from 2/10 to 7/10.[185] I accept the plaintiff has pain which requires medication and worsens from time to time. While he did demonstrate a range of movement in the witness box perhaps beyond what his oral evidence suggested, I am not persuaded this means he has no limitation, or such movement is not accompanied by pain. Being able to demonstrate a particular motion does not mean one can undertake that motion on a repetitive basis throughout a working day.
[185] PSFACB 145
281The plaintiff has worked full time for all his working life, in physically-demanding jobs. I have no difficulty accepting his evidence he would continue to be working today, if he did not have an injury, and was not in pain.
282The loss of his working life is a considerable loss to him. It was apparent from his evidence that working hard, and providing a better life for his children, was a source of immense pride. The fact he was able to educate both his children privately through his and his wife’s hard work, and both children attended university and are now in professional careers, was clearly something of which he was justifiably proud.
283The submission that his injury has not greatly changed his non-work life fails to take into account the fact that, to a large extent, the plaintiff’s work was his life. Although he still attends social engagements and sees his children regularly, I am satisfied the loss of his ability to work has had a significant detrimental impact on his life.
284He has had surgery, four courses of cortisone injection, and remains in pain. His prognosis is poor and further improvement is unlikely. He will likely remain with his current pain and level of restriction for the rest of his life.
285The injury occurred in 2015. He has already lived with the consequences for seven years, a substantial period of time.
286Having regard to all the circumstances, I consider an appropriate award of damages for the plaintiff’s pain and suffering is $200,000.
Economic loss
Past loss of earnings
287The plaintiff gave evidence that after sustaining his injury in August 2015 he was off work until December 2015.[186]
[186] T223, L23-25
288He then returned working 3 hours, twice a week. At this time he was scanning barcodes and putting labels on boxes.[187]
[187] T233, L27-30
289He describes being in pain, being unable to twist or turn. He was having physiotherapy and getting injections with Mr McMahon during this period.[188]
[188] T220, 221
290He continued working in this fashion throughout 2016.
291In February 2017, he had surgery with Mr Csongvay on his shoulder.
292On 18 May 2017, Mr Csongvay considered he had no current capacity for work but would review him in six weeks.[189]
[189] PSFACB 118
293At review on 29 June 2017, Mr Csongvay considered the plaintiff should start back at work on light duties, three hours per day, two days per week, and increase in a month to three hours a day, three days per week.[190]
[190] PSFACB 124
294On 17 October 2017, Mr Csongvay noted that the plaintiff was ‘coping’ with an increase in hours but still had shoulder pain and was tired after work. He recommended increasing his hours to three hours a day three days per week and work “towards 15 hours per week by January 2018”.[191] This suggests that by October 2017 the plaintiff was still only working three hours a day, two days a week.
[191] PSFACB 120
295The plaintiff’s evidence was that on returning to work after surgery he started working just two hours a week and gradually increased his hours to eight per week.[192] He said he was still in pain but his doctors recommended he increase his hours if he wanted to keep working.[193] However at some point in 2018 the defendant terminated his employment. Given the plaintiff’s recollection that he increased his hours to eight per week, and Mr Csongvay’s record that he recommended the plaintiff increase his hours to nine hours a week in October, I accept that up to October 2017 the plaintiff was working six hours a week and thereafter increased his hours to nine hours a week, until the termination of his employment in 2018.
[192] T221, L28-31
[193] T222, L3-12
296He has not worked since.
297The plaintiff retained a work capacity for light duties prior to the termination of his employment.
298I am satisfied on the basis of the plaintiff’s evidence he was working to the extent of his capacity during the period between his injury and the termination of his employment. This is supported by the medical evidence from Mr Csongvay.
299The plaintiff’s treating general practitioner Dr Vu expressed an opinion on 15 September 2019 that the plaintiff had a work capacity at that time for light duties up to three hours a day, four days a week.[194] He noted restrictions as follows:
“No pushing or pulling in excess of 3kg on a repetitive basis, no lifting of 3kg on a repetitive basis, no reaching with arms outstretched on a repetitive basis, cannot work in a cold room.”[195]
[194] PSFACB 105
[195] PSFACB 106
300On 2 May 2022 Dr Vu said the plaintiff was unable to return to pre-injury duties but ”may be able to work on light duties under the supervision of an occupational therapist. He still has restriction on his duties.”[196]
[196] PSFACB 108
301Mr Csongvay expressed his opinion in July 2018 that the plaintiff had the capacity to work up to fifteen hours a week on modified duties.[197] He does not set out what appropriate modifications would be.
[197] PSFACB 124
302The defendant relies on the opinion of Dr Vu and Mr Csongvay to demonstrate the plaintiff had and continues to have an ongoing work capacity.
303Further the defendant submits the plaintiff demonstrated a good range of movement while giving evidence and his right shoulder and cervical spine injuries would not prevent him from performing some light work on a part time basis.
304The defendant’s expert, Mr Chehata, opined in his report dated 20 August 2020 that “he was only able to barely perform scanning and I cannot imagine, in fact, that he would be able to cope with any formal duties based on his overall consultation style”.[198] Although this is a rather opaque statement, I take it to mean the plaintiff’s presentation during the consultation led Mr Chehata to form the view that by August 2020 the plaintiff had no capacity to cope with formal work duties. He went on to say the plaintiff has no capacity to perform overhead activity, lift weights more than 5kg or undertake repetitive and reliable lifting, pushing or pulling due to the severity of his symptoms.[199]
[198] DACB 9
[199] DACB 12
305In his subsequent reports Mr Chehata did not revisit his assessment of the plaintiff’s capacity for work.
306The plaintiff’s treating neurosurgeon, Mr John McMahon, considered the plaintiff to be totally incapacitated for pre-injury duties in August 2016,[200] and believed it was “very likely that he will remain totally and permanently incapacitated from performing his pre-injury duties”.[201]
[200] PSFACB 85
[201]PSFACB 100
307In a subsequent report on 2 September 2019,[202] Mr McMahon commented:
“Mr Ly has ongoing symptoms which significantly impact on his ability to return to the workforce. I do not feel that he should be involved in physical work activities in the future, such as repetitive lifting, bending, twisting and reaching upwards above head height. He is therefore totally and permanently incapacitated from performing his previous work activities as a storeperson and any other physical work activities. Mr Ly could be re-trained into light work activities such as desk and office-type work. However on the basis of his age, training and employment history, this may prove extremely difficult to obtain appropriate work.”[203]
[202] PSFACB 95-97
[203] PSFACB 96
308Orthopaedic Surgeon, Mr Ash Moaveni, in his report dated 15 February 2022 noted the plaintiff’s “considerable difficulty in carrying, lifting, pushing, pulling, reaching and/or repetitive activity and marked difficulty in grasping and holding”.[204] He opined:
“Mr Ly does not have realistic capacity to work on a permanent, sustained, reliable and consistent basis without the risk of injury, aggravation and deterioration of his right shoulder with regards to the employment options; including store person, process worker, machine operator, product assembler and packer.”[205]
[204] PSFACB 139
[205] PSFACB 141
309Mr Kilner Brasier, occupational and environmental specialist physician, in his report dated 11 March 2022,[206] considered the plaintiff had no work capacity for roles as a store person, process worker, machine operator, product assembler or picker/packer.[207]
[206] PSFACB 143-150
[207] PSFACB 148
310Mr D’Urso, neurosurgeon, provided a report dated 4 December 2019,[208] noting that the plaintiff would have capacity for part time light employment if his cervical injury on its own were considered. He put the following restrictions on Mr Ly’s employment – no repetitive movements of the upper limbs, no lifting of weight above the level of the shoulder, he would need ergonomic facilities in the workplace, and should avoid steps, ladders, climbing at height and working in confined spaces.[209]
[208] PSFACB 157-161
[209] PSFACB 160
311However, by 14 February 2022, Mr D’Urso considered the plaintiff had no capacity to return to employment as a store person, process working, machine operator, product assembler or pick packer.[210] He considered further restrictions on the plaintiff’s physical capacity were appropriate, including no awkward repetitive movements of the cervical spine, no lifting of weights in excess of 5kg and no operation of machine with his right upper limb, or any repetitive movements of the right upper limb.[211]
[210] PSFACB 165
[211] PSFACB 165
312The common theme of all the experts, whether they are treaters or medico-legal, is that the plaintiff’s injuries have significantly impaired his ability to work. There is consensus that he cannot perform his pre-injury role and according to Mr Chehata was just barely managing the light duties he was performing prior to the termination of his employment.
313The defendant submits the plaintiff’s treating practitioners are better placed than medico-legal practitioners to opine on his work capacity. I am not persuaded that follows as a matter of logic. Dr Vu is a general practitioner. I am not persuaded his training and experience make him better placed to understand the physical demands of various work roles on the plaintiff than an occupational physician. Nor am I persuaded he has a better understanding of the impact of certain tasks on the plaintiff’s injuries than, for example, a neurosurgeon or orthopaedic surgeon. Mr Csongvay is the treating surgeon and is likely to have the treating surgeon’s sanguine view about the success of the operation he performed.
314At the time of ceasing employment with the defendant in 2018 the plaintiff was aged sixty-two. He has a profound hearing loss. He has limited English. His work experience is entirely as a manual labourer.
315A theoretical capacity to physically perform some limited range of work does not necessarily mean that the plaintiff retains a work capacity. The plaintiff’s work capacity must be considered in all the circumstances of the case, including his age, skill and education.[212]
[212] Richter v Driscoll [2016] 51 VR 95
316Mr McMahon notes that, in theory, he could be retrained into light office or desk work.[213] However given the plaintiff has substantial hearing loss, limited English, basic education and a history of working entirely in manual labour, there is no prospect he could be retrained into such work, or that such work would represent suitable employment.
[213] PSFACB 97
317Having regard to the medical evidence about the restrictions on the plaintiff’s physical ability, together with the plaintiff’s evidence as to his pain and restriction, and taking into account the plaintiff’s background and training, I am satisfied that Mr Ly has no capacity for suitable employment.
318The parties agreed the plaintiff’s gross annual income for the year ending 30 June 2015 was $63,438,[214] which gives a net figure of $982 per week. In addition the plaintiff received $116 a week in superannuation.
[214] T809, L8
319The parties agreed the plaintiff’s hourly rate was $27.03.[215] The plaintiff gave evidence that he did regular overtime.[216] Had he not done any overtime, his annual salary would have been $53,411.28 in 2015. It is therefore clear that he did undertake substantial overtime, amounting to about $10,000 in additional gross salary per year.
[215] T808, L7-9
[216] T183, L19 – T184, L6
320The defendant provided evidence of a range of salaries of comparable workers, for the period between 2018 and 2021. These salaries were $56,046 and $64,235 respectively.[217] The defendant submitted that a “fair sum” for assessing past loss would be to use an annual rate of $62,000, or $963 net per week plus superannuation of $114 per week.[218]
[217] Exhibit D18
[218] T1011, L7-11
321It is not clear why the plaintiff’s past loss should be assessed by reference to a comparable worker, rather than against his own actual earnings, including overtime, plus any hourly rate increase since 2015.
322It is appropriate to use the plaintiff’s income in the financial year he was injured, including overtime, as the basis for assessing his past loss of earnings together with his superannuation. I accept an amount of 9.5 per cent of gross earnings across the period is a reasonable estimate of the plaintiff’s lost superannuation entitlement.
323The current hourly rate for a worker in the plaintiff’s role is $32.29, an increase of 19.45 per cent on the 2015 hourly rate.[219] This equates to an annual increase of 2.78 per cent.
[219] T1052, L24-26
324During the period between his injury and the termination of his employment, the plaintiff earned income from personal exertion, but he was only able to work part time, and for periods was off work entirely.
325The parties agree that during the period between injury and termination of employment the plaintiff earned $52,327 made up of $47,451 in wages and $4,876 in superannuation.
326But for his injury, the plaintiff would have earned the following:
6 August 2015 – 30 June 2016
Wages: 47 weeks x $982 $46,154
Superannuation: 47 weeks x $116 $5,452
1 July 2016 - 30 June 2017
Wages: 52 weeks x $1,009.30 $52,483.58
Superannuation: 52 x $119.22 $6,199.69
1 July 2017 – 30 June 2018
Wages: 52 weeks x $1,037.35 $53,942.20
Superannuation: 52 weeks x $122.54 $6,371.04
1 July 2018 – 30 June 2019
Wages: 52 weeks x $1066.20 $55,442.23
Superannuation: 52 weeks x $125.95 $6,549.18
1 July 2019 – 30 June 2020
Wages: 52 weeks x $1095.83 $56,984.40
Superannuation: 52 weeks x $129.45 $6,731.23
1 July 2020 – 30 June 2021
Wages: 52 weeks x $1,126.30 $58,567.66
Superannuation: 52 weeks x $133.05 $6,918.38
1 July 2021 – 30 June 2022
Wages: 52 weeks x $1,157.61 $60,195.84
Superannuation: 52 weeks x $136.74 $7,110.71
1 July 2021 – 21 July 2022
Wages: 3 weeks x $1,172.99 $3518.99
Superannuation: 3 weeks x $138.56 $415.69
SUBTOTAL:
Wages: $387,288.90
Superannuation: $45,747.92
__________
TOTAL: $433,036.82
==========
327During the period between injury and termination of employment, the plaintiff earned $47,451 in wages and $4,876 in superannuation which must be deducted from the amount he would have earned, but for his injury. The plaintiff is entitled to $380,710 for past loss of earnings.
Future loss of earning capacity
328The plaintiff is currently aged sixty-six. He gave evidence he would work until he died, or until he was asked to retire.[220] Before his injury he was working full time, riding his bicycle 6km each way to and from work, and was physically active.
[220] T227, L14
329The plaintiff’s wife is aged sixty-seven and continues to work full time.[221] Throughout his life, the plaintiff has demonstrated a strong work ethic. He worked in heavy manual labour jobs and has a pattern of staying with an employer until the employer goes out of business.
[221] T227, L15-16
330Although he has a significant hearing impairment, it is not apparent this was restricting him in his pre-injury employment, though it did impact on the roles he could perform, for example he was moved away from forklift driving because of his hearing impairment and could not do pick packer work as this required use of a headset.
331The defendant says the Court should conclude the plaintiff would have retired at sixty-seven years of age, and that any other age is “pure speculation”.[222] The plaintiff’s evidence is that he would have kept working. The plaintiff says the defendant is speculating that he would have retired at sixty-seven.
[222] T1014, L13-15
332However, based on his work history, his evidence and the significant role work played in his life, I consider it likely he would have continued working until the age of seventy.
333Given his significant history of manual labour and his industrial hearing loss, 15 per cent is an appropriate reduction for future vicissitudes, though the defendant submitted a reduction of only 5 per cent was appropriate, presumably taking into account the relatively short period until the plaintiff reaches seventy.
334The parties have agreed the appropriate multiplier is 186.2.
335This gives a total future pecuniary loss of $207,579
336The parties agreed a component of Fox v Wood[223] damages in the amount of $12,000.[224]
[223] (1981) 148 CLR 438
[224] T1055, L5-7
337The plaintiff is entitled to pecuniary loss in the amount of:
Past loss: $380,710
Future loss: $207,579
Fox v Wood damages: $12,000
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TOTAL: $600,289
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less any amounts required to be deducted pursuant to s343 of the Workplace Injury Rehabilitation and Compensation Act 2013.
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