McGreevy v Cannon Hill Services Pty Ltd - [2016] QSC 29

SUPREME COURT OF QUEENSLAND

CITATION:

McGreevy v Cannon Hill Services Pty Ltd [2016] QSC 29

PARTIES:

PAUL KEVIN McGREEVY

(plaintiff)

v
CANNON HILL SERVICES PTY LTD
ACN 095 396 866

(defendant)

FILE NO/S:

SC No 9229 of 2013

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8 and 9 December 2015

JUDGE:

Boddice J

ORDER:

Judgment for the plaintiff against the defendant in the sum of $112,485

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – where the defendant company's supervisor refused to slow down the process line – where the plaintiff was given faulty safety equipment – where the plaintiff could not signal supervisor for replacement safety equipment – where there were no supervisors observing the plaintiff – whether defendant company breached their duty of care

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – where it was the defendant company's policy to reprimand certain action – where that certain action was undertaken by the plainitff – where the circumstances of the work environment forced the plaintiff to undertake that certain action – whether the plaintiff was contributorily negligent

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff was injured at work – where the plaintiff voluntarily terminated his employment with the defendant – where the plaintiff suffered physical injury to his shoulder during work – where the plaintiff suffered psychological injury as a result of circumstances stemming from unemployment – where the plaintiff’s psychological and physical injuries largely resolved – whether the plaintiff was entitled to damages

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305H, s 306F
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), sch 9 item 93

Fox v Wood (1981) 148 CLR 438; [1981] HCA 41, applied
Kennedy v Queensland Alumina Limited[2015] QSC 317, cited
Woolworths Ltd v Perrins [2015] QCA 207, cited

COUNSEL:

K N Wilson QC for the plaintiff

G O’Driscoll for the defendant

SOLICITORS:

McCowan's Specialist Lawyers for the plaintiff

BT Lawyers for the defendant

The defendant operates a meat-processing facility in Cannon Hill (‘the facility’). The facility’s capabilities include meat slaughtering, boning, slicing, processing and packing. The defendant employed the plaintiff as a labourer and meat boner in the facility.
The plaintiff alleges he suffered a spinal injury while at work at the facility on 19 March 2012, due to the defendant’s negligence or breach of duty. The defendant does not dispute an incident occurred on 19 March 2012 that resulted in the plaintiff seeking medical attention. However, it denies any negligence or breach of duty, and that the plaintiff suffered any long-term injury.
Background
The plaintiff was born on 28 October 1987. He completed Year Twelve and left school with aspirations of undertaking tertiary education and eventually practising as an architect. He started a diploma of business design and architecture at the Queensland Institute of TAFE. Due to changes in his personal circumstances, he left…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QSC 29
Decision Date: 1 March 2016

CaseChat Overview and Summary

The plaintiff alleged that he suffered a back injury at work on 19 March 2012, due to the defendant's negligence. The defendant denied any negligence or breach of duty, and that the plaintiff suffered any long-term injury. The defendant also argued that the plaintiff was contributorily negligent in undertaking certain actions. The court was required to decide whether the defendant breached its duty of care, whether the plaintiff was contributorily negligent, and whether the plaintiff was entitled to damages.

The court found that the plaintiff did develop significant pain and disability in the months following the incident, and that he developed significant psychological sequelae as a result of the pain and financial difficulties. However, the court did not accept that the plaintiff had a significant ongoing permanent back injury as a consequence of that incident. The court found that the plaintiff's complaints of significant ongoing pain and disability were not supported by the objective evidence. The court found that the plaintiff was not contributorily negligent, as the circumstances of the work environment forced him to undertake the certain actions. The court found that the plaintiff was entitled to damages for the psychological injury he suffered, but not for the physical injury.

The court ordered judgment for the plaintiff against the defendant in the sum of $112,485.

Orders

Orders of the court

Judgment for the plaintiff against the defendant in the sum of $112,485

Background

Background to the litigation

The plaintiff alleges he suffered a spinal injury while at work at the facility on 19 March 2012, due to the defendant’s negligence or breach of duty. The defendant does not dispute an incident occurred on 19 March 2012 that resulted in the plaintiff seeking medical attention. However, it denies any negligence or breach of duty, and that the plaintiff suffered any long-term injury.Background The plaintiff was born on 28 October 1987. He completed Year Twelve and left school with aspirations of undertaking tertiary education and eventually practising as an architect. He started a diploma of business design and architecture at the Queensland Institute of TAFE. Due to changes in his personal circumstances, he left that course after six months and joined the Australian Army Reserves. After approximately eighteen months, the plaintiff left the Army Reserves and commenced employment with Nolan Meats at Gympie as a meat packer. Over time, he worked through the ranks as a slicer, and as a boner, before eventually becoming a team leader. On 16 October 2009, approximately two and a half to three years after commencing employment with Nolan Meats, the plaintiff struck a black horse in the middle of the road whilst travelling in his motor vehicle to work at around 4:00 am. The plaintiff suffered shock and headache-like symptoms. He also felt pain in his back, although he did not seek specific treatment for that pain. The plaintiff had time off work. Upon his return, he says Nolan Meats gave him a warning for not attending work. This was despite having medical certificates to excuse his absence. He was unhappy he was treated in this way when he had “done so much” for the company.[1] He resigned his employment at Nolan Meats. [1] T.1-16/35. The plaintiff soon commenced employment at Toner on Demand, undertaking warehouse duties. He did not experience any ongoing problems with his back in undertaking that employment. He also continued to enjoy his previous recreational pursuits, such as rugby union and BMX competition, with no difficulties with his back. He left that employment in 2010, when he and his partner relocated to Brisbane. The plaintiff then obtained employment at the facility. Initially, he was employed by a labour hire company. After approximately eight to twelve months, the plaintiff was employed directly by the defendant. Whilst working at the facility, the plaintiff was employed as a boner. As a boner, the plaintiff was required to take certain types of cuts from a carcass of meat and place those cuts onto a conveyer belt so that they could travel through to the slicing area of the premises. The plaintiff undertook those duties without any back pain. The plaintiff enjoyed his work at the facility. He aspired to become a team leader. Throughout the plaintiff’s employment with the defendant, the defendant had a disciplinary system for its employees. This involved verbal warnings, written warnings and termination of employment. Discipline was issued for conduct such as working slowly, dropping cuts of meat on the facility’s floor or for throwing cuts of meat. The defendant had issued verbal warnings to the plaintiff for working slowly and for throwing cuts of meat onto the conveyor belt.Pleadings

Evidence

Evidence Before The Court

In addition to those particulars, the plaintiff pleaded particulars of negligence and/or breach of contract specific to the alleged circumstances of the incident:“(c) Failing to identify the risk of injury the plaintiff was being exposed to when undertaking the work and handling T-bones and other heavy cuts of meat when:(i)wearing the mesh gloves which could become loose fitting and not properly fitted to plaintiff’s hand and had a tendency to hang down from the fingertips whilst undertaking the boning work, thereby creating a catching hazard;(ii)working on a process line that was moving at an excessive and unsafe speed in the circumstances of the work being performed;(iii)throwing large and heavy meat cuts onto the conveyor belt;(iv)being required to bone the larger and/or hard meat carcasses on the process line;(v)the workplace was set up in such a manner that impeded the plaintiff’s capacity to drop or place meat cuts onto the conveyor belt and to avoid throwing meat cuts, in particular, the plaintiff was required to work in close proximity to a number of other boners, working on a fast paced process line and at an unsafe distance from the conveyor.…(g) Failing to warn the plaintiff of the risk of injury to which he was being exposed in the course of performing the work, in particular:(i)when handling large cuts of bony meat with the mesh gloves, particularly when the gloves were or could become loose fitting and tendered to hang down at the fingertips whilst undertaking boning work, thereby creating a catching hazard when undertaking the work;(ii)working on a process line that was moving at an excessive and unsafe speed in the circumstances of the work being performed;(iii)being required to work away from his normal station and which then involved or required throwing large and heavy meat cuts onto the conveyor belt;(iv)undertaking the work in a rushed manner to keep up with the process line;(v)boning the larger and/or hard meat carcasses on the process line; and/or(vi)working on a fast paced process line in very close proximity to other boners;(h) Failing to provide the plaintiff with safe and proper plant and equipment, and/or adequate and proper resources (including product and co-worker assistance) for the safe performance of his work duties, in particular:(i)to avoid him, by reason of the position in which he was required to work, having to throw large and bony meat cuts onto the conveyor belt;(ii)where he was at reduced risk of having large bony meat cuts caught in his protective mesh glove;(iii)where he was not required to work on the process line at such a pace that it placed him at risk of sustaining injury;(iv)where he was not required to bone very large and/or hard carcasses of meat on a process line that was set at an inappropriate speed for such work to be done in a safe manner;(v)where he was not required to wear an ill-fitting or loose mesh glove that tended to hand down at the fingertips whilst undertaking boning work, creating a catching hazard when undertaking the work;(vi)where he was not required to work in close proximity to other boners on a fast paced process line;(vii)where glove tightening devices were readily and promptly available.(i) Failing to implement and maintain a safe system of work where its workers and supervisors, including the plaintiff, were instructed and trained that:(i)large cuts of meat and bony meats were not to be thrown onto the conveyor belt;(ii)bone or meat may get caught in the mesh gloves provided for the boning work, when handling same, particularly given the mesh gloves were prone to be loose fitting and had a tendency to hang down at the fingertips when undertaking the work, creating a catching hazard, and care should be taken when handling large and heavy meat cuts as a consequence;(iii)workers on the process line should not be exposed to working at such a place that placed them at risk of sustaining injury in having to keep up with the process line;(iv)the speed of the process line should be commensurate with a pace by which the work to be performed could be carried out in a safe manner;(v)where the meat carcasses to be boned on the process line were the larger carcasses normally processed were hard, making boning more time-consuming and/or difficult, then the usual speed of the process line should be reduced to accommodate those circumstances;(vi)workers should not be working with an ill-fitting or loose mesh glove that tended to hang down at the fingertips whilst undertaking the work, as this created a catching hazard when undertaking the work; and/or(vii)boners working in too close a proximity on a fast paced process line impeded the capacity of bonders to undertake the work in a safe manner;And, such instruction and training was reasserted, monitored and enforced;…(k) Instructing, allowing and/or encouraging the plaintiff to wear the mesh gloves:(i)when it was aware or ought to have been aware that the mesh gloves tended to be or become loose fitting and to hand down at the fingertips, creating a catching hazard, which could catch onto meat cuts or other objects whilst undertaking the work, and particularly in circumstances the defendant was aware or ought to have been aware that:(A)meat cuts were being thrown by its boners onto the conveyor belt; and/or(B)the boning work was being undertaken at a fast pace; and/or(ii)when there was more appropriate hand protection for the task at hand, with less risk of catching onto meat cuts and other objects;thereby placing the plaintiff at a higher risk of sustaining injury from bony meat cuts becoming caught in same;(l) Instructing, allowing and/or encouraging the plaintiff to work away from his normal work station and as a result be required to throw large cuts of meat onto the conveyor belt in the course of undertaking his work, thereby placing him at risk of sustaining injury;…(n) Requiring the plaintiff to work on a process line that was set at such a speed:(i)the plaintiff was required to rush his work duties to keep up with same;(ii)the plaintiff was required to move from his normal position with the result that he was required to throw meat cuts onto the conveyor belt;(iii)it was excessive and unsafe in the circumstances of the work to be performed;(iv)it was unsafe for the plaintiff and his co-workers to bone the larger and hard meat carcasses on the process line; and/or(v)the plaintiff did not have time to drop or place meat cuts onto the conveyor belt or to identify and/or check that his mesh glove had become attached to the bone in the meat cut;(vi)it required, encouraged and/or pressured the plaintiff to work in an unsafe manner;(vii)the plaintiff did not have time to readjust the loose fitting mesh glove so that it was not hanging down at the finger tips whilst undertaking the work;thereby placing the plaintiff at risk of sustaining injury;(o) Failing to reduce the speed of the process line when requested by the plaintiff and other boners working on the process line with the plaintiff, because they were having great difficulty keeping up with the same and/or to provide any adequate or proper response to the plaintiff’s reporting of the difficulties he was experiencing in undertaking the work;…(q) Failing to reduce the speed of the process line to accommodate the difficulties and time delays the plaintiff and his co-workers were experiencing with boning the larger hard carcasses of meat of which the defendant was aware or ought to have been aware.…(t) Requiring the plaintiff to undertake the boning work in a work environment and/or under a system of work, which:(i)impeded the plaintiff’s capacity to drop or place boned meat cuts onto the conveyor belt;(ii)required and/or encouraged the plaintiff and his co-workers to throw meat cuts onto the conveyor belt;(iii)was unsafe.(u) Failing to heed complaints of the plaintiff and his co-workers as to the unsafe nature of the workplace and/or system of work.…(y) Failing to slow down the process line when there was a backlog of carcasses.…(bb) Failing to provide the plaintiff with a glove tightening device promptly after his request for one.(cc) Failing to have in place a clear protocol for slowing or stopping the powered chain feeding hindquarters onto the unpowered hindquarter rail when circumstances required for that to occur.”Evidence

Decision

Reasons for decision

A work colleague during the plaintiff’s period with Foxtel confirmed the plaintiff had ongoing difficulties with pain. A current work colleague also confirmed the plaintiff was not participating in various work activities, apparently due to pain. The plaintiff also frequently left his desk to walk around, apparently due to back pain.ConclusionsGenerally There is no doubt the plaintiff, as a consequence of a back injury sustained on the morning of 19 March 2012, developed significant pain and disability in the months following that incident. I accept that as a consequence of that ongoing pain and financial difficulties resulting from his inability to obtain other employment, the plaintiff developed significant psychological sequelae. However, I do not accept the plaintiff has a significant ongoing permanent back injury as a consequence of that incident. The plaintiff withstood the rigors of giving evidence without obvious difficulty. This evidence as to his ongoing difficulties impressed me as arising more from a concern to avoid activities in case they caused pain. Subject to one aspect, I accept Associate Professor Williams’ opinion that the plaintiff has no ongoing restriction due to a physical injury to his back. The tests undertaken by Associate Professor Williams revealed objective results inconsistent with ongoing restriction of the magnitude identified by the plaintiff. The explanation as to the significance of those objective findings was highly persuasive. I did not find Dr Campbell’s evidence persuasive. His findings at the time of his examination, many months after the incident and Associate Professor Williams’ examination, likely reflected the impact of the psychological condition that the plaintiff developed in the months after the incident, which was still operative at the time of Dr Campbell’s examination. Dr Campbell accepted the mechanism of injury would not have caused any long-term disability for many individuals. Whilst he gave evidence that it is not unusual for an individual to suffer long-term injury from such a mechanism, I do not accept the plaintiff is such an individual. In coming to this conclusion, I have had regard to Dr Campbell’s evidence as to his findings at the examination shortly prior to the hearing. That examination does not appear to have been as thorough as the examination undertaken by Associate Professor Williams. Dr Campbell largely accepted as accurate the history of ongoing symptoms provided by the plaintiff, whereas I do not accept the plaintiff has ongoing pain and restriction of that magnitude. I have also had regard to Mr Scalia’s evidence. Again, his evidence was largely premised on an acceptance of the plaintiff’s complaints of significant ongoing pain and disability. That said, there is no doubt the plaintiff developed significant psychological sequelae as a consequence of the pain he suffered following the incident and ensuing financial difficulties. Whilst it is the considered opinion of the experts that that psychological sequelae has now resolved, the plaintiff obviously continues to harbour significant concerns as to his ability to undertake various forms of activities on a day-to-day basis. Those concerns manifest in a reticence to undertake activities which may cause pain.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McGreevy v Cannon Hill Services Pty Ltd [2016] QSC 29
PARTIES:	PAUL KEVIN McGREEVY (plaintiff) v CANNON HILL SERVICES PTY LTD ACN 095 396 866 (defendant)
FILE NO/S:	SC No 9229 of 2013
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	7, 8 and 9 December 2015
JUDGE:	Boddice J
ORDER:	Judgment for the plaintiff against the defendant in the sum of $112,485
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE – where the defendant company's supervisor refused to slow down the process line – where the plaintiff was given faulty safety equipment – where the plaintiff could not signal supervisor for replacement safety equipment – where there were no supervisors observing the plaintiff – whether defendant company breached their duty of care TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – where it was the defendant company's policy to reprimand certain action – where that certain action was undertaken by the plainitff – where the circumstances of the work environment forced the plaintiff to undertake that certain action – whether the plaintiff was contributorily negligent DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff was injured at work – where the plaintiff voluntarily terminated his employment with the defendant – where the plaintiff suffered physical injury to his shoulder during work – where the plaintiff suffered psychological injury as a result of circumstances stemming from unemployment – where the plaintiff’s psychological and physical injuries largely resolved – whether the plaintiff was entitled to damages Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305H, s 306F Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), sch 9 item 93 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41, applied Kennedy v Queensland Alumina Limited[2015] QSC 317, cited Woolworths Ltd v Perrins [2015] QCA 207, cited
COUNSEL:	K N Wilson QC for the plaintiff G O’Driscoll for the defendant
SOLICITORS:	McCowan's Specialist Lawyers for the plaintiff BT Lawyers for the defendant