Manca v Teys Australia Beenleigh Pty Ltd
[2023] QDC 139
•18 August 2023
DISTRICT COURT OF QUEENSLAND
CITATION:
Manca v Teys Australia Beenleigh Pty Ltd [2023] QDC 139
PARTIES:
REINALDO MANCA
(Plaintiff)v TEYS AUSTRALIA BEENLEIGH PTY LTD
(Defendant)
FILE NO/S:
BD 2724/2021
DIVISION:
Civil
DELIVERED ON:
18 August 2023
DELIVERED AT:
Brisbane
HEARING DATE:
18, 19, 20 July 2023
JUDGE:
Barlow KC, DCJ
ORDERS:
The plaintiff’s claim be dismissed.
CATCHWORDS:
TORTS – NEGLIGENCE – GENERALLY – OTHER MATTERS – the plaintiff, an employee of the defendant, was injured after slipping down stairs –the plaintiff sustained a broken rib and soft tissue injury in the area of his scapulothoracic spine – whether employer had failed to implement proper safety precautions or was otherwise negligent – whether the employee was contributorily negligent – assessment of damages
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305C, s 305D, s 305E, s 305F, s 305G, s 305H, s 305I
Workers Compensation and Rehabilitation Regulation 2004 (Qld)Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, cited
Green v Hanson Constructions Materials Pty Ltd [2007] QCA 260, followed
McLean v Tedman (1984) 155 CLR 306, cited
Hoekstra v Residual Assco Industries Pty Ltd [2004] NSWSC 564, citedCOUNSEL:
W Campbell for the plaintiff
J Hewson for the defendant
SOLICITORS:
Jonathan C Whiting & Associates Lawyers for the plaintiff
BT Lawyers for the defendant
Contents
Summary
Relevant principles
The allegations of negligence
The blooding floor, the surrounding area and the system of work
What caused Mr Manca’s fall?
Was there a foreseeable and not insignificant risk of injury?
The parties’ submissions
Instructions to use handrails
Was there a hose at the washdown cubicle?
Could Mr Manca use the handrail?
There was no foreseeable risk
Alternatively, risk not significant
Conclusions on liability
Contributory negligence
Mr Manca’s injuries and impairment
Medical evidence on pre-trial assessments
Medical assessments on video evidence
Findings on Mr Manca’s impairments
Assessment of loss
Loss of earnings (past)
Loss of future earning capacity
General damages
Special damages (past and future)
Summary of loss
Conclusions and result
Summary
Eduardo Manca was employed by the defendant (Teys) at its meatworks in Beenleigh, where he commenced his employment as a meatworker in June 2019. He was well experienced as a meatworker, having worked in that capacity in Brazil and in Ireland for many years.
On 11 February 2020, having just completed his shift on what is known as the blooding floor, Mr Manca slipped on some steps and fell backwards, hurting his side. He alleges that he broke a rib and suffered a soft tissue injury on his left side and, although the rib has subsequently healed, he continues to be in permanent and considerable pain that causes him to sleep poorly and to be unable to lift his left arm above approximately horizontal without considerable pain. As a consequence, he has been unable to work further in the meat industry or, as he had hoped, in the mining industry. He has been forced to work as a hairdresser (in which he had previously qualified and had experience as a hobby) and, as a consequence, has suffered a loss of income.
Mr Manca alleges that the slip was a result of negligence by Teys and breach of its duties to maintain a safe workplace, in not cleaning the floor adequately and not providing adequate facilities for him to clean his work boots sufficiently before descending the steps, resulting in the floor or his boots (or both) being slippery and the cause of him falling on the steps.
Teys accepts that Mr Manca slipped and fell while descending the steps, admits that he broke his rib and had a soft tissue injury, but denies that he has any ongoing incapacity as a consequence of that fall. It denies that it was negligent or otherwise breached its duties. It also alleges that Mr Manca was himself negligent because he attempted to descend the steps without holding the handrail that was installed and that employees were trained and required to use and therefore he was the cause of the fall and any injury he suffered. It also denies that he has suffered any loss of income as a result of any injury.
The principal issues that arise are:
(a)what caused Mr Manca to slip on the steps;
(b)whether there was a foreseeable and not insignificant risk of injury to a worker descending the steps, against which a reasonable person in Teys’ position in the circumstances would have taken precautions;
(c)if there was such a risk, whether Teys took adequate precautions against it;
(d)if not, whether the failure to take such precautions caused the fall and Mr Manca’s injuries, in the sense that it was a necessary condition of the occurrence of the injuries and it is appropriate for the scope of Teys’ liability to extend to those injuries;
(e)what injuries Mr Manca suffered;
(f)whether any injury has ongoing effects on Mr Manca’s health and his ability to work in his chosen fields;
(g)what, if any, loss Mr Manca has suffered and what, if any, damages he is entitled to; and
(h)whether Mr Manca caused or contributed to his fall by his own negligence.
For the reasons discussed below, I find, in brief, that:
(a)Mr Manca has not proved what caused him to slip and fall, but it is likely that he slipped due to accidentally misplacing one foot incorrectly on a step;
(b)his fall was not caused by any negligence of Teys;
(c)his slip caused him to fall because he did not hold the handrail provided while descending the steps, which was contributory negligence on his part;
(d)Mr Manca suffered a rib fracture and an associated soft tissue injury, as a result of which his left scapulothoracic spinal region has “deconditioned”,[1] causing ongoing physical restrictions in movement and associated pain, or perception of pain, and he also had an adverse psychological reaction involving fear of pain;
(e)Mr Manca’s injuries mean that he cannot work in the meat industry or other physically hard jobs, but he can work as a hairdresser;
(f)he has lost income and future earning capacity as a result of his injuries;
(g)if Teys were negligent, Mr Manca would be entitled to damages totalling $119,276, after accounting for his contributory negligence;
(h)as Teys was not negligent, Mr Manca’s claim must be dismissed.
[1]See [99] and [117] below as to this term.
Relevant principles
The common law principles for determining whether a defendant has been negligent and caused loss to the plaintiff are well known. They are relevantly modified by the Workers’ Compensation and Rehabilitation Act 2003 (the Act), particularly in Part 8, division 2, which provides:
305BGeneral principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) —
(a)the probability that the injury would occur if care were not taken;
(b)the likely seriousness of the injury;
(c)the burden of taking precautions to avoid the risk of injury.
305COther principles
In a proceeding relating to liability for a breach of duty —
(a)the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b)the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
Part 8, division 3 concerns causation of injury. It relevantly provides:
305DGeneral principles
(1) A decision that a breach of duty caused particular injury comprises the following elements —
(a)the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
(b)it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability). …
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
305EOnus of proof
In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
As for contributory negligence, Part 8, division 4 provides:
305FStandard of care in relation to contributory negligence
(1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the worker who sustained an injury has been guilty of contributory negligence in failing to take precautions against the risk of that injury.
(2) For that purpose —
(a)the standard of care required of the person who sustained an injury is that of a reasonable person in the position of that person; and
(b)the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.
305GContributory negligence can defeat claim
In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.
305HContributory negligence
(1) A court may make a finding of contributory negligence if the worker relevantly —
(a)failed to comply, so far as was practicable, with instructions given by the worker’s employer for the health and safety of the worker or other persons; or …
(c)failed at the material time to use, so far as was practicable, anything provided that was designed to reduce the worker’s exposure to risk of injury; or
(f)undertook an activity involving obvious risk or failed, at the material time, so far as was practicable, to take account of obvious risk; …
305I Meaning of obvious risk for s 305H
(1) For section 305H, an obvious risk to a worker who sustains an injury is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the worker.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
General damages must be assessed in accordance with division 3, sub-division 2 of the Act and Part 7 and schedules 8, 9 and 12 of the Regulation.[2]
[2]Workers Compensation and Rehabilitation Regulation 2004.
The allegations of negligence
In the statement of claim, Mr Manca alleges that his injuries, loss and damage were caused by Teys’ negligence in “failing to take reasonable care for the Plaintiff by ensuring that the workplace was safe by:”[3]
[3]Statement of claim, [3]. That paragraph alleges “negligence and/or breach of contract,” but it is unnecessary, in my view, to address the latter. It was not pursued at trial and it is unlikely to produce any different result in any event.
(a)Repairing the damaged and worn edges of the steps;
(b)Providing a non-slip surface and metal edge strips to the steps;
(c)Otherwise ensuring that the steps were kept clean of blood and other fluids/substances from recently slaughtered and bled carcasses by, for example, a system of regular cleaning;
(d)Failing to conduct an adequate assessment of the risks posed to its workers at the workplace associated with the tasks carried our thereat and, in particular, the risk of slipping on blood or other fluids/substances from recently slaughtered carcasses which had found its way onto the steps from the adjacent work floor;
(e)Failing to respond adequately to previous slips and/or falls by other staff members on the steps because of the presence of blood and other fluids/substances thereon, and/or because the surface and edges of the steps were damaged and worn;
(f)Failing to take any or sufficient steps to prevent the hazard created by the damaged and worn and contaminated steps, or to quickly remove the hazard once it had been created;
(g)Failing to repair the damaged and worn steps to ensure they ceased to present a risk to persons walking thereon;
(h)Failing to warn the plaintiff that the steps were damaged, worn and slippery from the presence of blood or other fluids/substances which had found their way onto the steps, and that walking thereon would be likely to cause him to slip and fall;
(i)In breach of s 19(1) of the Workplace Health and Safety Act 2011 (QLD) (WHSA), failing to ensure the health and safety of the Plaintiff while he was at work in the business or undertaking, by eliminating or minimising the risk of him slipping on the steps of the premises; and
(j)In breach of s 19(3) of the WHSA, failing to properly manage the Plaintiff’s exposure to risk from the work environment provided to him be eliminating or minimising the risk of him slipping on the steps of the premises.
The blooding floor, the surrounding area and the system of work
The following description of the method of processing cattle, as it was in early 2020, is brief and does not accurately reflect the skill and specialised nature of the tasks undertaken by the workers, but it suffices for the purpose of determining the issues before me.
The workers on the blooding floor wore specialised clothing supplied by Teys, including a strong rubber apron that reaches from their chest to near the top of their feet and a pair of strong gum boots with deep treaded soles. The workers would have their own knives and sharpening tools, which they kept in a specially designed pouch. They were required to sterilise their knives before starting their work on the floor and from time to time during their shift. The blooding floor was, in essence, a rectangular area lower than the surrounding areas with a large drain in the middle, through which blood is pumped out for processing.
Cattle were brought into the meatworks and each beast was rendered unconscious in the “knocking box”. Its throat was then cut in a Halal manner,[4] which killed it. It was then transported on a conveyor belt to the start of the blooding floor, where it was lifted by a winch called a “hockey stick” onto an overhead conveyor, from which it hung by its rear legs. The first worker on the blooding floor then sliced it open, releasing a substantial amount of blood onto the floor, after which it was conveyed to the second worker on the floor, who undertook additional cutting. Between them in one shift, the two workers would usually deal with about 700 to 800 cattle. Of course, a substantial amount of blood would fall to the floor, often resulting in a pool that could be up to about 20cm deep, in which the workers stood while undertaking their tasks. However, due to their aprons and boots, the blood did not enter their footwear. But over time, a lot of the blood would congeal into a jelly-like substance and Mr Manca’s evidence was that some of that substance would get trapped in the tread of his boots.[5]
[4]Mr Platten, T3-80:18-22.
[5]That evidence was disputed by Teys’ witnesses.
After a certain number of cattle were killed, the two workers would step from the blooding floor into metal washdown cubicles, which had walls to about stomach height on three sides and opened onto the blooding floor. In each cubicle there was a low shower head over a tub, in which they would wash and re-sterilise their tools. While they were doing that, two “floor boys” would go onto the blooding floor and, using squeegees, would push the bulk of the blood into the drain area and activate the pump to extract the blood. The meatworkers would then return to the blooding floor to continue blooding more cattle until the end of their shift.
At the end of a shift, a meatworker would go into a washdown cubicle, wash his tools and rinse off his apron and boots. Teys claims, but Mr Manca denies, that there was also a hose with a trigger head in each washdown cubicle, from which water under pressure could be used to assist in washing aprons and boots, including the soles of the boots, at the end of a shift. However, it was essential that no water enter the blooding floor, as that would contaminate the blood and prevent its further processing.
Having undertaken a preliminary washdown in the cubicle, the worker ending his shift would then proceed, with his tools, down the steps and to a different area, where there were full wash facilities. His apron and boots were taken from there and given a thorough wash by other employees, to be made ready for other employees on subsequent shifts.
The floor of the blooding area, the walkway beside it and the steps were concrete. The walkway and steps were painted red and had a rough surface. In February 2020, there were no non-slip treads on the edges of the steps, although at a later time bright yellow treads were added to each step. A metal handrail or banister descended on the right side of the steps (as one descends), with a tile wall to the left.
What caused Mr Manca’s fall?
Mr Manca gave evidence that, while working on the blooding floor, the tread on the soles of his boots would become filled with congealed blood. He was unable to wash or scrape out the congealed blood from his boots, as nothing was provided to do that in the washdown cubicle.[6] Neither in his evidence in chief nor in his cross-examination did he volunteer that the blood was slippery. Toward the end of cross-examination, he said (apparently referring to photograph 3 in exhibit 2), “if you saw this picture, it has blood in the end of the steps a little bit and always that stair is wet.”[7] A short time later, I asked him if congealed blood on the underside of his boots was slippery. He said that it was.[8] In further cross-examination, he said that he did not notice any slipperiness while he walked along the walkway above the steps.[9]
[6]T1-41:27-45; T1-41:34-37.
[7]T2-19:23-25. He repeated that in re-examination: T2-22:28-29.
[8]T2-18:21-39.
[9]T2-20:4-11.
Mr Manca said that, when he finished his shift, on exiting the washdown cabinet and walking to and down the steps, he was carrying his knife pouch (with knives in it and a hook hanging from it) in one hand, his apron was draped over an arm and he carried his sharpening steels and a sharpening stone in the other hand. As a result, he was not able to use one hand to hold onto the handrail at the side of the steps while he was descending them.[10] On about the second or third step, his right foot slipped and he fell backwards, hitting the left side of his back on the corner of a stair.[11]
[10]T1-33:44 to T1-35:33; T1-40:1-45. In cross-examination, T1-70:11-2. Mr Manca did not say how many steels he carried, but he showed the court three. Photographs of the knives, the pouch, three steels, a pair of mesh gloves and the hook are exhibit 13. The pouch hangs off a belt that goes around the wearer’s waist, presumably outside his apron as shown in exhibit 2, photograph 5. Mr Manca did not say if he was carrying the gloves, but Mr Rodrigues said that, when he saw Mr Manca after the fall, Mr Manca was carrying or wearing a mesh glove: T3-7:12-13; T3-19:17-19.
[11]T1-44:5-41.
Later on the day of his fall, Mr Manca took some photographs of the area, looking back up the steps and along the pathway and showing the outside of one of the washdown cubicles.[12] Someone else later took another photograph of the steps from the top, looking down.[13] In the latter photograph, the steps appear to be in the same general state as in Mr Manca’s photographs, although in photograph 3 there appear to be small droplets or splatters of blood in a few places on or near the steps.
[12]Exhibit 2, photographs 1 and 2.
[13]Exhibit 2, photograph 3. The date on which this was taken is unknown.
The photographs show that the surface of the walkway and the steps was rough and, as I have said above, painted. The edges of some of the steps were a little worn in places, but the worn areas were also painted, so the wearing had obviously been in place for some time. There is no apparent blood on the steps or walkway in photographs 1 and 2. That does not, of course, mean that there was no blood present when Mr Manca fell, as he took the photographs some time later that day. Mr Manca did not remember any blood on the steps.[14]
[14]T1-72:8-9.
Mitchell Fry worked at Teys for about six years until 2022. He worked with Mr Manca, including on the kill floor. He said that he did not see Mr Manca fall, but he saw him getting up from the floor. He said he was familiar with the steps and -
I used to whinge about them all the time because they used to get bloodied. The blood would clot if the blood pit – the blood trays underneath would overflow from being blocked up, and I used to whinge about them being slippery. … what happens is is the blood congeals onto the tray, and especially when the – onto the tray and it would slide down and it would splash up up onto the steps and people are walking up and on the steps from the – from the bleeding area and, you know, blood would get on the steps as well from that.
Right. Are you saying from their boots?‑‑‑Yes, as well, yeah.[15]
[15]T2-92:34-37; T2-92:46 to T2-93:4.
The following exchange then occurred between Mr Fry and counsel for Mr Manca, Mr Campbell:[16]
Now, what was the blood like that got on the steps consistency wise?‑‑‑Oh, it’s like jelly. It congeals.
Yeah. And the volume of blood that got on the steps, what are we talking about?‑‑‑Oh, it varied all the time. Like, you know, if the blood pit where the conveyor belt was running fine that day, you know, it really wasn’t that bad. It wasn’t too bad. You know, there would still be blood there, but yeah.
Okay. Did you ever have any fall on the steps?‑‑‑No.
[16]T2-93:8-16.
He later said that he never saw anyone else fall on the steps.[17] In cross-examination, he could not say whether there was blood on the steps, nor whether they were slippery, on the day of Mr Manca’s fall. He said:
.. if there was no blood on them, no, they weren’t slippery, but with blood on them, yes, they were. …
And were your complaints confined to instances where the tray that you referred to overflowed with blood?‑‑‑Not all the time, no, because if other people were walking up and down them and had blood on their shoes and it got onto the steps, then yes, it was slippery.[18]
[17]T2-94:6-8.
[18]T2-94:35-36, 42-43; T2-95:1-4.
After Mr Manca’s fall, he reported it to the Quality Assurance and Quality Control Supervisor, Mr Rodrigues, who supervised the area in which Mr Manca was working. Mr Rodrigues gave evidence, saying that Mr Manca approached him in the room beside the knocking and blooding room. Mr Manca told him that he had slipped on the steps in the blooding area. Mr Rodrigues told Mr Manca to go to the first aid room and Mr Rodrigues then went directly to the relevant steps. He said that the steps were clean: there was no dirt, no fat, no blood and no water on them that he saw. However, he said that he observed them from the bottom of another set of steps about four metres from the relevant steps.
Mr Rodrigues later wrote an incident report about the fall.[19] His signature and that of a witness to his signature are dated 17 March 2021. Counsel for Mr Manca asked him if that was an error and the report was made on 17 March 2020. Mr Rodrigues did not accept that that was the case. I consider it more likely that it was written and signed on 17 March 2020. Although therefore not a contemporaneous document, it was sufficiently proximate to the date of the incident for Mr Rodrigues to have a reasonable memory at the time of his observations on the day of Mr Manca’s fall.
[19]Exhibit 2, tab “Incident Reports”, pp7-10.
In that report he recorded, relevantly:
Reinaldo Manca came out of the doorway at the knocking box. As I approached the doorway, Reinaldo stated that he fell on the steps. He showed me his forearm and it was scrapped (sic). I then told Reinaldo Manca to go straight to first aid and I radioed first aid saying that a operator was coming up to see first aid. I then notified safety on the radio to come to S/F and see me. I showed safety and told MJ of incident and its location. We both checked stairway and found all clear from any obstructions, I stated to safety officer that the edges of some steps were wasted away and painted over.
He drew a picture of the area, recording, “Stair way clear of obstructions + floor as well no rubbish on floor.”
In his evidence, Mr Rodrigues said that “S/F” meant slaughter floor. He said MJ was the safety officer. He did not know her name. His reference to “no obstructions” was to any object lying on the ground. The area was like photograph 1. He was not asked if what he had written was correct. In the absence of any challenge to its content, I accept it as an accurate record of what Mr Rodrigues observed.
Mr Campbell asked Mr Rodrigues to confirm whether photograph 3 showed blood on the floor. He agreed that it did. He said that sometimes when a beast is bled it will move or kick so that specks of blood may hit the walkway or steps.[20] He did not see any blood on the floor or the steps that day. He also said that blood is not slippery and he had never slipped on blood.[21]
[20]T3-13:33-39; T3-35:16-35.
[21]T3-14:33-37.
Allan Platten was the shift manager at the plant. He has worked for Teys for about 43 years. He said that he was not aware of anyone other than Mr Manca ever slipping on the steps. He had never noticed them to be slippery.[22] In cross-examination, he said that blood would not congeal in the treads of boots and that it is not slippery at all.[23]
[22]T3-48:4-12.
[23]T3-82:12-32.
Mr Platten was asked if there was a cleaning process in the bleeding area. He said there was, but the area and process to which he referred did not include the walkway and steps. He produced a document headed “WI SF46 floor cleaning” (exhibit 16), which he said was the cleaning process at the time. However, that document does not appear to apply directly to areas other than the working areas, although item 14 does say “Do general clean of floor during breaks in chain” and, during major breaks, among other things, it provided for “Hot hosing applied to floors.” He did not expand on the procedures outlined in this document. I consider it unhelpful in determining the issues. However, he said that the steps were not generally cleaned as the walkway and steps were a pretty clean area where only the two people working on the blood floor go to and from their breaks.[24]
[24]T3-52:14-17.
Mr Platten was asked whether blood would occasionally overflow the bleeding floor and flow or splash onto the steps and the walkway. He said that there was a drain under bleed trays below that floor (beside the conveyor that takes the cattle from the knocking box to the bleeding floor) that removes any blood that would overflow from the bleeding trays. He said that overflowing blood would not go onto the steps or the walkway.[25] However, he did accept that it was possible that a small amount of blood may spray (or it may drip from a worker’s washed apron) onto the steps or the walkway, although he said the blood shown in exhibit 2, photograph 3 was “certainly not a spurt from a throat being cut.”[26]
[25]T3-76:1 to T3-78:15.
[26]T3-79:4-10; T3-81:19 to T3-82:8.
Mr Platten was also asked about yellow capping that was installed on the edges of the steps, apparently in December 2020. He agreed that it was installed at some time after Mr Manca’s fall, but he was not involved in the decision to do so. He said it appeared to him to be ordinary maintenance as part of Teys’ policy of continuous improvement of the plant.[27]
[27]T3-66:15 to T3-70:4.
Counsel for Teys, Ms Hewson, pointed out that there was no expert evidence of the slip ratings of the steps, blood on the stair or blood in Mr Manca’s (or other workers’) boots. In the circumstances, the court cannot be satisfied that any particular matter caused Mr Manca’s fall. At most, the evidence gives rise to “inferences of equal degree of probability so that the choice between them is a mere matter of conjecture … [as to which] the law does not authorise a court to choose between guesses … on the ground that one guess seems more likely than another or the others.”[28]
[28]Citing Jones v Dunkel (1959) 101 CLR 298, 304-305.
The nett effect of all this evidence is that it is not clear what caused Mr Manca to slip and fall. I am not satisfied that there was congealed blood in the tracks of his boots nor, if and to the extent that there was, that any such blood was slippery. There was no expert evidence about the slipperiness or otherwise of blood: what evidence there was, was conflicting, with two witnesses saying it is slippery and two saying it is not. I do not find that it was slippery but, even if it was, I consider that the tread on the boots would likely have been adequate to ameliorate its slipperiness. Furthermore, if it was, to Mr Manca’s knowledge, slippery, that would have a substantial effect on any finding about contributory negligence.[29]
[29]Which I consider from [65] below.
I am satisfied that the steps at the time were not wet, as there is no evidence that any water or other fluid was present on them when Mr Manca descended them. I am not satisfied that they had any spilt or sprayed blood on them. If there had been, it is likely that someone would have seen it, but no witness gave evidence of having seen it and Mr Rodgrigues said there was none that he saw.
While the edges of the steps were not fully even, there were no defects that, in my view, would of themselves had caused Mr Manca to slip and fall. Rather, it seems that, for some reason (probably his own inattention), he misplaced his foot onto the edge (rather than the floor) of a step, causing it to slip out from under him, which in turn led him to fall back and land on the edge of a higher step on his rear left back and rib area. It was an unfortunate accident but was not caused by any defect in, or uncleanliness of, the steps, nor by any material, such as blood, built up in the tread of his boots.
These conclusions do not necessarily resolve the proceeding in Teys’ favour. It is still necessary to consider whether there was a foreseeable and not insignificant risk of injury to a worker descending the steps, against which a reasonable person in Teys’ position in the circumstances would have taken precautions.[30]
Was there a foreseeable and not insignificant risk of injury?
[30]Act, s305B.
The parties’ submissions
Mr Campbell submitted that:
The risk of the Plaintiff slipping on the concrete steps and falling back onto them and injuring himself, while walking down the steps carrying in both hands his just rinsed apron, three sharpening steels, a sharpening stone and his plastic pouch of three knives, having just finished work in the bleeding section after which his boots would likely have had jelly-like congealed blood stuck to and built up under their soles, was clearly “foreseeable” and “not insignificant”. The surfaces and edges of most of the concrete steps were damaged, worn and irregular, and the steps likely had blood and/or fluid on them from previous descents by other workers, and/or from the congealed blood buildup in the blood basin which on occasions even overflowed onto the path leading to the steps, and/or from the previously rinsed aprons and boots of those other workers. The washing of those items which had taken place in the sink was at best a rudimentary preliminary wash, particularly in relation to the boots which were not removed and were only rinsed from above from water emanating from a shower head. There was no ability to remove the congealed blood build up on the soles of the boots by way of a boot scraper or, for example, a bath with some form of vertical jets and a mechanical scrubber to remove the blood from underneath the boots, nor was there an ability to remove the boots and to then change into another form of footwear prior to descending the steps.[31]
[31]Plaintiff’s written submissions, pp 1-2.
Mr Campbell relied on Mr Fry’s evidence that he had previously complained about the presence of blood on the floor and on the steps. He also noted that non-slip capping was later placed on the steps. He submitted that the risk of a worker slipping ought reasonably to have been anticipated by Teys, which should have taken precautions to ensure that any blood on the floor, the steps or workers’ boots was removed, or to ensure that workers were not required to carry so many items in both hands, but could use their right hand to grip the handrail. Had those precautions been taken, Mr Manca would not have slipped and fallen.
Ms Hewson submitted that the risk of a worker slipping on the steps as happened to Mr Manca was not foreseeable (that is, known or ought to have been known), nor was it “not insignificant”. There was evidence that nobody had previously reported to Teys that a worker had slipped on the steps. Although Mr Manca said that he had been told by Mr Rodrigues that the latter had previously slipped up the steps,[32] Mr Rodrigues denied saying that and denied that he had ever slipped on the steps. I accept Mr Rodrigues’ evidence in that respect. I expect that Mr Manca misunderstood something that Mr Rodrigues had said to him.
[32]Evidence that, of course, is hearsay and not proof that such a thing had happened to Mr Rodrigues.
Ms Hewson also relied on the evidence of Teys’ witnesses (Mr Rodrigues and Mr Platten) that blood was not slippery and did not congeal in the treads of workers’ boots. Also, she submitted, workers were trained and instructed to use handrails and there were signs in various places around the meatworks that workers should use the handrails provided.
Instructions to use handrails
In the defence, paragraph 3(n), the defendant pleaded that it had “erected signs on the premises to remind workers to use the hand rail provided.” That was admitted in the reply, paragraph 9(a). Ms Hewson relied on that admission. Mr Manca denied that he was trained and instructed to use handrails. Ms Hewson tendered a copy of a 41 page induction document that was given to and signed by Mr Manca (exhibit 4) during the course of what Mr Platten said was a four day induction process that Mr Manca had undergone when he first commenced working at Teys. In that document, at page 11, the following relevant passage appears:
Moving area [sic] your work area
… Employees to ensure to use walkways, steps, platform as provided in a safe manner, …, ensure to use handrails where provided.
However, Mr Manca said he did not read that document, as he has very limited capacity to read and understand English and that passage was not pointed out or read to him. I accept that evidence. But he agreed that, as part of the induction, he was taken around the complex. It was put to him that he was told to use the handrails. His response was:
Well, all the induction they – they give instruction to use the handrails.[33]
[33]T1-74:19-27.
However, when I asked him a clarifying question, he said that nobody at Teys gave him an oral instruction to use handrail, saying:
I have instructions before in different company, they told me, but not Teys, they didn’t tell me.[34]
[34]T1-74:39-40.
I find that Mr Manca did not read and was not informed of the above passage in the induction manual. I accept that his ability to read English was limited and he would not have been able to read that manual. Also, I find that he was not specifically instructed by Teys to use handrails. However, he was aware that it was prudent to do so, particularly having been instructed to do so by a former employer, and he was aware that it was advised by signs in a number of places around the meatworks.
Was there a hose at the washdown cubicle?
Mr Manca said that it was not possible for him to clean the soles of his boots in the washdown cubicle, as the only source of water was the shower head over the sink and there was no way of scraping or otherwise cleaning the soles. Teys contended that there was a hose for each wash cubicle, that had a trigger head that was under normal pressure and could be used to wash the undersides of boots and the front of an apron. The sink was to wash tools.
In one sense, this is relevant only if boots would be slippery from blood congealed in their treads if any such substance was not properly washed out of the treads before a worker descended the steps. I have not been able to conclude whether or not blood congealed in the tread of the boots would make them slippery, but as the question of whether a hose was there for the purpose of washing boots and aprons was a substantial issue in contention, it is necessary to resolve it.
The photographs taken by Mr Manca on the day of his fall do not show any hose near or on the edge of the washdown cubicles. Photograph 1 shows a brush hanging on the outside of the visible cubicle, but no hose. In contrast, photographs 5, 6 and 7 show a red and white hose connected to what appears to be a water inlet on the outer right side of that same cubicle, with the hose draped over the edge. Mr Manca said such a hose was not present when he worked at the meatworks.[35]
[35]T1-38:33-35; T1-72:41 to T1-73:5; T2-17:28 to T2-18:10.
Mr Fry was not asked whether or not a hose was present at the time. Mr Rodrigues said that, in the washdown cubicles, there were a sink, a steriliser, a place to put one’s knife pouch, a hose and a brush. The hose was used to washdown a worker’s apron, from the shoulders down, and boots. The sink and the shower head over it were used to wash hands and arms up to one’s elbows. There was a hook for the hose to be hung from, but often a worker would just hang it over the side, as shown in photograph 7.[36]
[36]T3-9:13 to T3-12:33.
Mr Rodrigues was challenged at length about the presence of a hose in February 2020, particularly by reference to photograph 1, in which no hose could be seen. He maintained that there was a hose for each cubicle at that time, although he speculated that it was not shown because the photograph may have cut off the part where it was. He denied that he was mistaken in his recollection.
Mr Platten’s evidence was also that there was a hose for each cubicle at the relevant time. He said there was a trigger hose that hung on the outside of each cubicle.[37] He too was cross-examined at length about that evidence, by reference to the differences in the photographs. He explained that, at the time, the hoses were on the other side of the cubicles. He pointed out that, in photograph 7, there was a hook (from which a brush was hanging in the photograph) that he said was used to hang the hose by its trigger and there was a water outlet on the side of the cubicle to which the hose was attached in 2020. The position of the hose was changed, after February 2020, as part of continuous improvement of the plant.[38]
[37]T3-49:40 to T3-50:16.
[38]T3-83:8 to T3-90:35.
I accept the evidence of Mr Rodrigues and Mr Platten. I find that, in February 2020, each washdown cubicle had a hose, attached to a water outlet on the left side, with a trigger head enabling the application of pressurised water to equipment. It was available to be used to wash a worker’s apron and boots, including the underside of the boots. There was a brush that could also be used, if necessary, to scrub the soles of the boots.
Could Mr Manca use the handrail?
Another relevant factor is that Mr Manca said that he was carrying his equipment in both hands when he descended the steps. His evidence was to the effect that the only way to carry it all was to use both hands. Thus, he could not use one hand to hold the handrail while descending. He said that was how he always went down the steps.[39]
[39]T1-40:19-35; T1-73:10-21.
I accept that, if he held all his equipment in two hands, Mr Manca could not use one hand to hold the handrail while descending the steps. However, I do not accept that Mr Manca had no choice but to do that. First, it would have been possible for him to wear the apron and the knife pouch, carrying the knives in the pouch, rather than to carry them, and to carry the sharpening tools and stone in one hand. But also, Mr Rodrigues gave evidence to the effect that, when he saw Mr Manca after the fall, Mr Manca was holding one arm bent at the elbow (presumably his sore arm) and was holding his tools in the other hand, with his apron or tunic draped over his arm.[40] While that was not put to Mr Manca in cross-examination, Mr Rodrigues appeared to have a clear memory of seeing Mr Manca holding his injured (scraped) arm up from the elbow and carrying his gear in one hand. I accept that evidence. It is consistent with Mr Manca having hurt one arm, so he did not use it, and having gathered his equipment with the other hand before proceeding to the change area.
[40]T3-7:1-31. At line 29 he said “the other hand, … it was like that”. In answer to my questions, he made it clear, by demonstrating that Mr Manca held one hand up by bending his arm up at the elbow, while holding his gear in the other hand: T3-8:1-22.
There was no foreseeable risk
I find that there was not a foreseeable risk of a worker slipping on the steps, given the precautions that Teys had taken to avoid or minimise a risk that might otherwise have existed. There had been no prior incident of slipping reported to Teys. Although I accept Mr Fry’s evidence that he had previously complained about a substantial amount of blood or water on the floor and the steps, that appears to have been one occasion only and was certainly not the norm, nor expected, even though some droplets of blood might splash or spray on or near the steps from time to time. Furthermore, in the absence of expert evidence about whether blood is slippery, I do not find that it was slippery or contributed to the risk of a person slipping if there was blood on the floor or in the treads of his boots. The boots were also clearly designed to be non-slip. Finally, it is unlikely that blood is slippery or that the tread of the boots did not prevent slipping when, in order to leave a washdown cubicle to go onto the walkway toward the stairs, it was necessary to walk along the sloped edge of the blooding floor basin, on which there would be blood.[41] There was no evidence that that edge was slippery or difficult to walk along.
[41]Rodrigues, T3-41:20 to T-42:27.
Furthermore, I find that the steps that had been taken by Teys to mitigate the risk of anyone slipping on the steps were reasonable and sufficient to mitigate any such risk. Those steps were having a rough non-slip floor apparently designed to be non-slip, having and instructing the use of a handrail and providing facilities for employees to undertake a preliminary rinse of their apron and boots before proceeding along the walkway and down the steps, as well as having regular safety inspections of the entire plant. The fact that, in December 2020, Teys installed metal capping on the edges of the steps does not prove that it was negligent for it not to have done so earlier. To the contrary, it serves to demonstrate that Teys did undertake safety inspections and make ongoing improvements to the plant when it considered it appropriate. As provided in s 305C(b) and (c), the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. In any event, there was no evidence comparing the non-slip status of the steps before and after the installation of the capping.
I also consider that it was not foreseeable that a worker might slip on the steps while carrying equipment in both hands and thus not using the handrail. It was unnecessary for a worker to carry so much equipment that he could not do so with one hand and use the other to grip the handrail. Workers were also instructed – and reminded by signs in various places around the meatworks – to use handrails and they were expected to do so. The floor and the steps were of non-slip material and, according to Mr Platten, along with the rest of the plant were the subject of regular safety inspections and maintenance or improvements where considered appropriate. There was no evidence that Teys was aware that any employee, let alone Mr Manca, had a habit of carrying all his equipment in two hands and not using the handrail. In the circumstances, the risk of injury from slipping on the steps was not a risk of which Teys knew or ought reasonably to have known, given the precautions that Teys had taken against any such risk.
Alternatively, risk not significant
If I were wrong and the risk of a person slipping on the steps and being injured was foreseeable, I consider that the risk was not significant. Teys had never had a report of anyone slipping. It had a non-slip floor. It had provided a handrail at the steps, had instructed its employees to use the handrail and had erected signs reminding them to use handrails where provided. Even though there was no such sign at these particular steps, the presence of the handrail was obvious and the sensible thing for anyone to do was to use it and, for that purpose, to carry as little equipment as possible, in one hand, to enable its use with the other. It was unnecessary for an employee to take off the apron and knife pouch after undertaking the preliminary washdown in a cubicle before walking down the steps to the change room. The washdown was clearly designed to minimise the amount of blood that would be on the person’s apron and boots while moving through the plant. Having taken all these precautions, the risk of a person being injured by slipping on the steps was insignificant.
Conclusions on liability
I have found that Teys had taken reasonable steps to mitigate any risk that a person would slip on the steps and that Mr Manca has not proved that he slipped due to any failure of Teys to take reasonable precautions against a risk of slipping. As Ms Hewson pointed out in her written closing submissions, there was no evidence demonstrating whether any particular alternative stair applications, treads, system of inspection or any other precaution not taken by Teys at the time would or would not have avoided Mr Manca’s fall.
In those circumstances, I find that no failure on Teys’ part caused Mr Manca to slip and fall. I also find that Teys was not negligent in any respect.
Therefore, I shall dismiss Mr Manca’s claim. Nevertheless, it is necessary to consider what, if any, loss he has suffered as a result of his injuries and what damages he would be entitled to if I were wrong in my conclusion on liability. For that purpose, I shall first consider whether there was any contributory negligence on his part, what injuries he suffered from his fall and the ongoing effects of his injuries, if any.
Contributory negligence
Teys pleaded and submitted that Mr Manca was contributorily negligent because he did not use the handrail when descending the steps. In essence, it alleged that Mr Manca (as well as employees generally) was instructed to use handrails, there were signs around the meatworks telling employees to use handrails, and he should have carried his equipment in one hand while using the other hand to hold the handrail. If he had done that, it is unlikely that he would have fallen or, even if he did, it is unlikely that he would have injured himself.
Teys also alleged that, if the cause of the fall was that Mr Manca slipped on blood, either on the floor or on his apron or boots, that too was his own fault, not only because he failed to use the handrail but also because he did not undertake a “full apron wash” before descending the steps. During evidence, this allegation appeared to be relying principally on Mr Manca not using the hose supplied to wash his apron and his boots sufficiently to remove most of the blood on them.
Teys relied on the following passage in the reasons of Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina:[42]
A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.
[42](1986) 160 CLR 301, 310.
Ms Hewson submitted that Mr Manca’s conduct in not using the handrail was negligence on his part that merits a 30% reduction in damages, consistent with Green v Hanson Constructions Materials Pty Ltd [2007] QCA 260.
Mr Campbell submitted that, since McLean v Tedman,[43] except for circumstances of a flagrant breach of an established or enforced safe work instruction or procedure, employees (preoccupied with work tasks or fatigued at the end of an arduous shift) have not readily been found contributorily negligent for failing to exercise reasonable care for their own safety in circumstances which may be regarded as the result of mere inattention, inadvertence or misjudgment. He submitted that Mr Manca’s practice of carrying all his equipment in both hands, so that his right hand was not free to hold the handrail, was a misjudgment that did not amount to contributory negligence.
[43](1984) 155 CLR 306, especially 312, 315.
Mr Campbell sought to distinguish Green v Hanson, which concerned a self-employed contractor who was aware of the risk of slipping on steps but did not use the handrails, submitting that the special nature of the relationship between employer and employee gives rise to the need for greater consideration of the circumstances and conditions in which the employee has to work than those of a contractor when determining whether the employee, injured due to the employer’s failure to provide a safe system of work, was contributorily negligent. He relied also on this passage from the Court of Appeal’s reasons at [35]:
Any failure to exercise care by an employee in such circumstances may be regarded as the result of mere inattention, inadvertence or misjudgement or as the result of negligence to use the distinguishing terms referred to by the High Court in McLean v Tedman:
As Windeyer J. observed in Sungravure[44], when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to “inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions”. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, “excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man”.
[44]Sungravure v Meani (1964) 110 CLR 24, 37.
Mr Campbell submitted that courts will not readily attribute contributory negligence to a worker engaged in, concentrating on the task he or she is required to perform and preoccupied with the task in hand.[45]
[45]Hoekstra v Residual Assco Industries Pty Ltd [2004] NSWSC 564, [72].
In his evidence and submissions, Mr Manca denied that there was a hose in the washdown cubicle when he worked at the meatworks. That denial indicates either that he has forgotten its presence or that he did not use it. If he did not use it to wash his apron and boots, and if blood was slippery and he slipped on blood in the treads of his boots, then his failure to use the equipment supplied would be negligence on his own part. But I do not make such a finding. I do not consider that any failure adequately to washdown his apron and boots contributed to his fall.
However, it is crystal clear to me that his failure to use the handrail contributed to his fall. I agree with the defendant’s counsel that, if he had held the handrail with his right hand while carrying his equipment in his left hand, he is unlikely to have fallen at all, or at least as heavily as he clearly did fall. (Only a fall of some force would have caused his broken rib.)
The real issue that arises here is whether, as Mr Manca claims, it was not realistically possible for him hold all his equipment in one hand while using the handrail and therefore he was not negligent in using two hands to hold his equipment and therefore not using the handrail. If that is the case, then he did not contribute to that fall.
As I have recorded above, Mr Rodrigues said that, when he saw Mr Manca shortly after the fall (when Mr Manca reported it to him), Mr Manca was carrying all his equipment in one hand, with his apron draped over his arm. I accept that evidence, which is clearly inconsistent with Mr Manca’s evidence that he could not carry all his equipment in one hand.
Mr Manca demonstrated in court how he held the equipment that he had on the day.[46] His demonstration did not include holding a sharpening stone or his apron and gloves. I was not convinced, by that demonstration, that he could not have held all the equipment that he had with him in court in one hand, or by strapping the knife pouch around his waist. He could also have worn his apron while leaving the blooding floor, or he could have draped it over the same arm as the hand in which he carried his tools.
[46]Photographs of the equipment that he brought into court are exhibit 13.
At the time, Mr Manca was not engaged in work tasks that were repetitive and may breed familiarity and inadvertence. He was not in a hurry, nor distracted. He said that he was looking ahead when walking and then, when he went down the steps, he looked at the steps (which I take to mean he looked down as he stepped down).[47] Although I accept that he did not read and was not told about the passage in the induction manual set out at [45] above and he denied receiving an instruction from Teys to use handrails, he said that he had been instructed before, in a different company, to do so.[48] I have also found that he was aware that there were signs around warning employees to use the handrails.
[47]T1-71:38-44.
[48]T1-74:26-40.
I do not accept that it was not possible for Mr Manca to carry his equipment in one hand and to hold the handrail with the other. It was his choice and was not reasonable or prudent. His choice not to use the handrail was a significant factor as a cause of his fall and particularly in the extent of his injuries. It was particularly imprudent if, as he maintained, he had found from prior experience that there could be blood on the floor or in the tread of his boots and that it was slippery. Any such slipperiness should have alerted him to the clear need to use the handrail when descending the steps.
This is not a case such as Green v Hanson, where there was expert evidence that the use of a handrail in that case was not necessarily a significant factor in preventing a fall. There was no such evidence in this case. But even in that case, the Court concluded that, as that evidence showed, although holding onto the handrail would not have stopped the plaintiff’s fall from commencing, it may have been likely to have prevented it from continuing and so lessened the plaintiff’s injury.[49] Even if I were wrong in my conclusion that Mr Manca could have prevented his fall if he had held the handrail, it is certainly likely to have prevented or considerably lessened his injuries. Furthermore, if Mr Manca was aware of the slipperiness of blood, he must have been aware of the risk of slipping, particularly on the steps. But, as in Green, he “did not take advantage of the obvious reduction in risk given by the handrails. Not holding on to the railing in those circumstances was more than mere inadvertence.”[50] He was not acting with the standard of care for his own safety that a reasonable person in his position would adopt.[51]
[49][2007] QCA 260, [41].
[50][2007] QCA 260, [42].
[51]Act, s 305F(2)(a). His actions fall within each of the paragraphs of s 305H(1)(a) (in disregarding signs warning personnel to use handrails), (c) and (f).
I find that Mr Manca was negligent in not using the handrail and that that negligence was a considerable factor that led to his fall and his injuries.
Frankly, if I were independently to assess the level of Mr Manca’s contributory negligence,[52] I would assess it at 50%. However, although in its defence Teys pleaded that Mr Manca’s negligence was wholly responsible for his fall, in her final submissions Ms Hewson only contended for a reduction in damages of 30%. I shall therefore reduce the damages that I assess by that percentage, for Mr Manca’s contributory negligence.
Mr Manca’s injuries and impairment
[52]Assuming, as I must in this part of my consideration, that Teys was negligent in a manner that contributed to Mr Manca’s fall.
Medical evidence on pre-trial assessments
Mr Manca first went to see a doctor (a general practitioner) on 13 February 2020. He underwent a CT scan of his chest on 20 February 2020, the result of which was that the radiologist reported, “No acute interthoracic findings with the limitations of a non-contrast study. In particular there are no rib fractures.”[53]
[53]This and the following radiologist’s report are not themselves in evidence. They were apparently produced by different radiologists. However, they have been quoted in several of the doctors’ reports and there was no dispute as to their contents, although Dr Licina disputed that there had been a rib fracture.
After reporting ongoing pain to his general practitioner, Mr Manca underwent a low dose CT scan of his chest on 11 March 2020. On that occasion, the radiologist reported, “Undisplaced subacute healing left 6th rib fracture laterally. No consolidation or pneumothorax.”
The parties tendered a total of four doctors’ reports and the doctors gave evidence. The plaintiff called Dr Peter Steadman (orthopaedic surgeon, examination date 30 November 2020) and Dr Csongor Oltvolgyi (occupational and environmental physician, examination date 18 February 2023). The defendant called Dr Paul Licina (orthopaedic surgeon specialising in the spine, examination date 21 July 2021) and Dr Angus Forbes (occupational physician, examination date 4 October 2022).
In my view, if it were not for the injuries that Mr Manca suffered from the fall, he would have continued to work for Teys until he chose to work elsewhere. Under his visa, he was required to work for Teys for four years (subject to permitted changes of employment). I am satisfied that he would have done so if he had not been injured and subsequently sacked.
Therefore I do not accept Ms Hewson’s submission that Teys would have terminated Mr Manca’s employment in any event. I find that Mr Manca lost nett earnings of $55,728 to 30 June 2023. The loss since then equates to about two months at the same rate: a total of $2,043. Thus, his lost earnings to the date of judgment are $57,771.
The other part of the past loss claimed by Mr Manca is lost superannuation on his lost earnings. Mr Campbell submitted it should be allowed at 10% of nett lost earnings. I did not understand Ms Hewson to dispute that rate. Taking into account the workers’ compensation payments of $1,003.77, I shall allow $5,877 under that head of loss.
Mr Campbell submitted that I should allow interest on Mr Manca’s past economic loss (other than liability to refund worker’s compensation payments) at 4.2%pa for 3.22 years since the worker’s compensation payments ceased on 1 May 2020. Ms Hewson made no submission about the interest rate or component. I accept the rate as appropriate, but the period should be only from the date on which Mr Manca lost his employment on 13 November 2020: a period to judgment of about 2.75 years. I shall allow interest of $7,351.
Loss of future earning capacity
Mr Campbell submitted that Mr Manca should be awarded a global sum, pursuant to s 360J of the WCR Act, of $163,412 for lost earning capacity of 25%, calculated as no less than a weekly nett loss of $250 over 26 years’ working life to age 67, discounted by 15% for contingencies.
The basis for this submission was that, although Mr Manca now works as a hairdresser (he is engaged as a contractor and paid an hourly rate) and he sometimes earns more than he would have at Teys, he has to work longer hours in a job that he prefers not to do (as it was a hobby, not an employment option) and in which he continues to suffer pain, which may restrict his future ability to continue to earn from that job or any other for which he might be qualified or otherwise suited.
Mr Campbell submitted that, even though Mr Manca sometimes earns more as a hairdresser than he did as a meatworker, he does not have to give credit for any such increased earnings against any lost earnings.[117]
[117]Citing GMH Ltd v Whetstone (1988) 50 SASR 199, 201; Snell v BP Refinery (Bulwer Island) Pty Ltd [2013] QSC 284, [82].
Ms Hewson submitted that Mr Manca has not proved that he has lost any earning capacity. He earns more as a hairdresser than he might otherwise have earned, he is well regarded by his employer and there is no reason why he could not continue in this employment in the future, even though he may not enjoy it.
I doubt that Mr Manca will be able to continue as a hairdresser indefinitely while he suffers the present levels of pain. However, as I have said above, I agree with Dr Forbes and Dr Licina that this injury may well resolve if Mr Manca were to undertake multi-disciplinary treatment, such as pain management associated with targeted physiotherapy and psychological assistance. If he were to undergo such therapy, there is a good prospect that it would be successful and he will recover fully and be able to achieve his full earning capacity in the future. On the other hand, there is also a real prospect that any such therapy would be unsuccessful. I must take into account both these possibilities in considering whether and to what extent Mr Manca has suffered a loss of earning capacity.
I assume that any such therapy would take some time to be complete and to have a real prospect of success. I must allow for the possibility that it would not be successful. Unfortunately, neither doctor said how long it would take. I expect that Mr Manca will continue to work as a hairdresser for the time being, but he may not continue to work the long hours that he now does. I also take into account that one reason for his earnings in that capacity is that he works longer hours than he would have at Teys. It is necessary to take into account what he would earn as a hairdresser if he were to work the same hours as he would at Teys. As a hairdresser working on weekdays, he is currently paid $39 an hour,[118] which equates to $1,560 a week or about $75,000 a year, before tax and expenses, based on an 8 hour day. His 2023 income tax assessment shows that his taxable income was $71,038 and his nett earnings were $59,905. To achieve those figures, he earned $96,870 gross and incurred business expenses of $23,454.[119] I expect he would have similar expenses (although perhaps slightly lower) even if he earned a gross figure of $75,000, thus reducing his taxable income to about $55,000. If he were at Teys, his nett earnings would be about $1,025 per week, or $53,320 in that year.[120]
[118]Exhibit 7.
[119]Exhibit 2, “Financial”, p46: income tax return for 2023.
[120]Exhibit 2, “Financial”, p69.
These figures demonstrate that Mr Manca has so far been able to earn more than he would have as a slaughterman at Teys and that, if he had worked similar hours to those at Teys, he could now earn a similar nett income. That suggests that he has not in fact suffered any loss of earning capacity. While it is possible that, had he not been injured, he would have found a better paying position (noting that he has some mechanical experience and qualifications), I consider that to be speculative.
However, it is clear that Mr Manca’s employment options have been, and remain, limited by his ongoing pain. For example, he mentioned that he had a dream of working in the mines, which he can no longer fulfil due to his medical condition.[121]
[121]Although the first mention of that dream that I have seen was that he told Dr Oltvolgyi in February 2023: exhibit 2, “medical”, p 60. By contrast, Dr Licina records that, when he saw Mr Manca in July 2021, Mr Manca said that he had planned to continue working in the meatworks, having been a meatworker for over 10 years: exhibit 2, “medical”, p 15.
In my view, while the pain persists, he will continue to have reduced employment options[122] and, even in his current occupation, it is likely that he will reach a limit to his ability to continue to work, especially full time. Taking into account all the possible contingencies, I consider that Mr Manca has suffered a loss of earning capacity and he will continue to do so, even though there is a prospect that it would resolve with appropriate treatment.
[122]See, for example, Dr Forbes’ comment that the duties he can perform would be limited by his reported symptoms: exhibit 2, “medical”, p 52.
Taking into account all these matters, I assess that Mr Manca will suffer an overall loss of earning capacity for the balance of his working life. For that I will allow a global sum of $65,000. This equates approximately to a loss of $100 per week for the remainder of his working life, discounted on the 5% tables and further discounted by 15% for contingencies. I will increase this by $5,000 to allow for loss of future superannuation.[123]
[123]Although he is not paid superannuation while he is self-employed, he may become an employee again in the future, so some allowance for this loss is appropriate.
General damages
I have found that Mr Manca suffered a scapulothoracic soft tissue injury, from which he has suffered a 6% degree of permanent impairment. He also suffered a minor chest injury: the rib fracture.
Ms Hewson submitted that general damages should be assessed as a minor thoracic spine injury with an injury scale value (ISV) of 2, resulting in general damages of $1490.[124] Even if I were to accept the submission about the item and ISV, the result would be $1,490 x 2: $2,980.
[124]Regulation, schedule 9, item 93; schedule 12, table 9, item 1.
Mr Campbell submitted that the dominant injury is the soft tissue injury, which is a moderate spine injury under item 92. The appropriate ISV is at the top of the range (10), but it should be increased by 25% (to ISV 13) for multiple injuries that include a minor chest injury under item 39, with an ISV of 0 to 4. The result would be general damages of $22,830.
In my view, Ms Hewson’s submission results in too low an ISV for the extent of Mr Manca’s injuries. The soft tissue injury has not substantially reached maximum medical improvement within 18 months, nor are there only minor symptoms remaining. Item 93 is not the appropriate item. Also, she does not take into account that he suffered two injuries, nor the extent of his ongoing pain and his psychological reaction to the injury.
On the other hand, Mr Campbell is too generous, particularly in starting with an ISV of 10 and then in proposing to increase it by the ordinary maximum of 25% for the rib injury. The degree of permanent impairment is only 6%, which indicates that a lower ISV than 10 is appropriate. The rib injury was a minor fracture, constituting a minor chest injury under item 39.2. Alone, it might have rated an ISV of 4, but it does not merit a 25% increase on the ISV of the dominant injury.
I consider that item 92 is the appropriate item. Given the degree of permanent impairment, the psychological effects of the injury and the possibility that, with further treatment (if undertaken) it will substantially or wholly resolve, I consider that an ISV of 8 for the soft tissue injury is appropriate. That should be increased to 9 to account for the rib injury.
I would therefore award general damages of $14,690.
Special damages (past and future)
Mr Manca claims special damages of $11,018.57, comprising medical expenses of $6,681.82 paid by Teys and refundable to it, $2,286.75 refundable to Medicare and $2,050 for medication expenses, at a rate of $50 per month for 41 months up to the trial.
Ms Hewson accepted the refunds to Teys and Medicare, but submitted that I should allow only a global amount of $500 for out of pocket medical expenses.
Mr Manca’s evidence was that he takes paracetamol and ibuprofen most days, spending about $50 or $60 a month.[125] Mrs Manca confirmed this and said that she also applies “hot cream” such as Deep Heat or Voltaren to the area of Mr Manca’s pain most nights.[126]
[125]T1-52:43 to T1-54:19.
[126]T2-99:8-28.
Although not in evidence, I take judicial notice of the approximate cost of these medicines. 100 tablets of Panadol costs in the vicinity of $11 and the same number of Nurofen costs about $20. Cheaper alternatives of each are available. If Mr Manca took maximum dosages every day, the cost would be up to about $67 a month (not including Voltaren or a similar cream). I accept Mr Manca’s evidence as to his consumption and approximate expenditure. I shall therefore allow $50 a month for his past medication expenses, allowing for about 42 months to judgment: a total of $2,100.
Interest on medicinal expenses over 3.6 years at 4.2%pa, claimed by Mr Manca and not directly opposed by Teys, amounts to $318.
As with the refundable worker’s compensation payments, given that Teys is self-insured I propose to set off Mr Manca’s liability to refund past medical expenses against damages to cover that refund.
Mr Manca claims $20,000 for future pain management, as suggested by Dr Licina and Dr Forbes, and $37,700 for future physiotherapy and general practitioner visits and medication (calculated at $50 a week for 25 years).
Ms Hewson submitted that I should make a global allowance for all future expenses of $2,000.
It is clear that Mr Manca will continue to take the same medicines for the foreseeable future. It is not clear, however, whether he will undergo physiotherapy or pain management therapy. His evidence was that he saw a physiotherapist “inside the company”, but never paid for treatment on his own.[127] He said that he has never undergone a supported exercise program, although he attended an exercise physiologist once, but he did not return, it seems at least partly because it is expensive.[128]
[127]T1-58:28-42; T2-16
[128]T2-16:21-30.
Certainly, Dr Licina and Dr Forbes consider that Mr Manca should undertake multi-disciplinary treatment that may reduce or resolve his ongoing pain over time. Unfortunately, there is no evidence of the cost of any such treatment.
I consider Mr Manca’s claim to be excessive, but Ms Hewson’s submission to be too low. I propose to allow a global sum of $10,000 to cover future medication and treatment under a multidisciplinary approach for pain management.
Summary of loss
In summary, if Teys were liable to Mr Manca, I would award the following sums in damages (setting off the workers’ compensation and medical payments made by Teys, which need not be refunded to it from damages):
(a)Past lost earnings $57,771
(b)Past lost superannuation $5,877
(c)Interest on past lost income $7,351
(d)
Lost future earning capacity
(including superannuation) $70,000
(e)General damages $14,690
(f)Past special damages $2,100
(g)Interest on special damages $318
(h)Medicare refund $2287
(i)Future expenses $10,000
(j)Sub-total $170,394
(k)less contributory negligence (30%) $51,118
(l)Total $119,276
Conclusions and result
I have concluded that Teys was not negligent. If I were wrong in that conclusion, I would award damages, after a 30% reduction for contributory negligence, of $119,276.
Therefore Mr Manca’s claim should be dismissed.
8
2