Rasmussen v Australia Meat Holdings Pty Ltd
[2000] QSC 475
•19 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: Rasmussen v Australia Meat Holdings Pty Ltd [2000] QSC
475PARTIES: LEONARD THOMAS RASMUSSEN
(plaintiff)
v
AUSTRALIA MEAT HOLDINGS PTY LTD
ACN 011 062 338
(defendant)FILE NO: Toowoomba S 74 of 1998 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: 19 December 2000 DELIVERED AT: Brisbane HEARING DATE: 22, 23, 24 August, 14 September 2000 JUDGE: Wilson J ORDER: Judgment for the plaintiff against the defendant for
$125,266-37CATCHWORDS: TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – SUFFICIENCY OF EVIDENCE – WEIGHT AND CREDIBILITY OF EVIDENCE EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK – SUPERVISION AND INSTRUCTION INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – QUEENSLAND – Plaintiff meat worker sustained injuries to his right shoulder and left hand during his employment at defendant’s meatworks – conflicting evidence as to work systems in place at the meatworks – sufficient evidence proving breach of defendant’s duty of care to plaintiff Fox v Wood (1982) 148 CLR 438
Griffiths v Kerkemeyer (1977) 139 CLR 161COUNSEL: IR Molloy for the plaintiff GJ Cross for the defendant SOLICITORS: Shine Roche McGowan for the plaintiff
Thompson Hannan Lawyers for the defendant
WILSON J: The plaintiff claims damages for injury to his right shoulder and injury to his left hand sustained during the course of his employment by the defendant as a meatworker. Both liability and quantum are in issue.
The shoulder injury is alleged to have been sustained while pushing beef in or about December 1995, and to have been aggravated while slicing meat on or about 9 July 1996. The injury to his left hand is alleged to have been sustained while boning on or about 19 January 1996.
The plaintiff commenced work with the defendant at its Beef City meatworks outside Toowoomba on 3 July 1992. He was then aged 22. At first he was employed as a labourer in a casual pool, where his work included pushing beef. After about six months he progressed to slicing and permanent full-time employment. Over the next couple of years his jobs varied: they included slicing, boning, pushing beef and other tasks. By December 1995 he was employed as a “boner rate 1” - that is, he was on the top rate of pay for a boner.
Each day 600 beasts were slaughtered and their carcasses cut length wise into full sides. These were left in five chillers overnight. They were hung, tightly packed side by side, from hooks and rollers attached to overhead rails. Each day pushers had to move all of these sides out of the chillers and into the preselection room. The sides of beef ranged in weight from 160 to 200 kgs, the average being 190 kgs. They had to be pushed over distances ranging from three to 75 metres. There were various “gates” or points on the rail system, which allowed connection between different sections of the rail system rather like points in railway tracks. On a 75 metre push, the sides would pass through four or five gates.
To start the sides moving, the plaintiff used to drive with his shoulder: he would put his shoulder against a side and push as hard as he physically could. Once the sides were started, he used his shoulder to keep them moving. It was very hard to push over the gates, and sometimes defective rollers made the pushing difficult.
In the first incident the plaintiff was pushing three sides of beef out of one of the chillers into the preselection room when the load jammed on a gate. He drove his right shoulder into one of the sides and pushed as hard as he could. As he did so, he experienced a severe, sharp pain in his right shoulder. Eventually he moved the three sides through the jammed section and continued with his work, albeit with pain. He reported the shoulder pain to the nurses’ station, but did not attend his general practitioner until 19 January 1996.
For the defendant to have required the plaintiff to push more than two sides at a time, for it to have condoned such conduct, would have been to expose him to unnecessary risks of injury, and would have amounted to a breach of the duty of care which the defendant owed the plaintiff. This was accepted by counsel for the defendant in his written submissions (para 5.1). The defendant disputed whether there were signs and instructions in place that no more than two sides should be pushed, and whether the incident occurred on the date and at the time the plaintiff said it did (12 December 1995 at about 8.30 pm).
In July 1997 the plaintiff told doctors who examined him for medico-legal purposes that the incident had happened three and a half years previously. However, I regard that as an innocent mistake on his part. Overall he impressed me as an honest young man who gave his evidence to the best of his recollection. A report of an incident of this nature on 12 December 1995 appears in the defendant’s records.
The defendant relied on its various records to persuade me that the incident could not have occurred at 8.30 pm because there was no night shift working on that day, and that the plaintiff was not pushing beef on the morning of 12 December 1995. However, there were inconsistencies in those records, and their conclusiveness was undermined in cross-examination of the witness Holmes. Further, each morning the supervisor in the boning room would set up his team of workers for the day, and although there might be only two designated pusher positions on a shift, there might be up to six to eight pushers working at any one time, as some of the workers would in practice, although not officially, be assigned to work as rovers.
I find that the pushing incident did occur on 12 December 1995 as alleged. I do not consider the time at which it occurred to be of significance in all the circumstances, but if it were, I would be prepared to accept the plaintiff’s evidence on the point.
I accept the plaintiff’s evidence that most pushers moved four sides at a time. Two co-workers (Dimmick and Birch) gave similar evidence. Halter, a supervisor at the relevant time, said that there were times when four sides were pushed and that he sometimes pushed four sides himself. Wilcox, the defendant’s occupational health and safety officer, was aware that pushers occasionally pushed more than two sides at a time. The plaintiff, Dimmick and Birch all said that there were no signs or warnings against the practice. Wilcox said that signs (300 mm x 250 mm) had been placed on the chiller doors in 1992-93, but he conceded that one had been removed because it was badly defaced and the others were replaced in 1996 because people said they could not see them. When an employee started to work for the defendant he was given instructions in pushing only if it was known from the beginning that he would be undertaking that task. Otherwise pushers were expected to learn from others on the job. I find that there was no effective system of instruction or warning to ensure that pushers did not push more than two sides at a time.
The consensus of medical opinion was that the plaintiff sustained a rotator cuff tendonitis of the right shoulder in the pushing incident in December 1995, and that he has some permanent impairment as a result. Ultimately he left the defendant’s employ, and took up other work. He was cross-examined at length in relation to previous problems with his right shoulder. The defendant bore an evidentiary onus of showing that the plaintiff’s incapacity is wholly or partly the result of some pre-
existing condition or incapacity, or that his incapacity would in any event have resulted from a pre-existing condition. In 1987, while he was slicing meat at KR Darling Downs, he complained of having pulled a muscle in his right shoulder, and had two weeks off work. In 1993 he injured his right shoulder while playing football, and attended the Toowoomba Hospital where it was Xrayed. He reported to the nurses’ station at the defendant’s premises in March, April and September 1995 complaining of problems with his shoulder. That evidence was vague and imprecise as to the nature of the injuries on the earlier occasions. Only one of the doctors (Dr Ivers) was prepared to express the view that the earlier episodes of shoulder discomfort were, on the balance of probabilities, indicative of tendonitis. The others all declined to express an opinion on the limited material available. I am not satisfied that the plaintiff’s current shoulder disability, which was assessed at between 3% and 7.5% impairment of the arm, is attributable to a pre-existing condition.
The plaintiff sustained an injury to his dominant left hand on or about 19 January 1996 when he was boning butts. He was wearing a mesh apron, and protective clothing on his right hand and his right arm, but no protective clothing on his left hand with which he held the boning knife. The knife jammed in a little groove in the bone, and slipped lacerating his little finger. He has been left with a fixed flexion deformity with associated weakness of grip strength and clumsiness. Estimates of the degree of permanent disability range from 1% to 2.5% of the left arm as a whole.
The plaintiff alleges that he ought to have been supplied with a protective glove for his knife hand. Some time after he injured his hand, the defendant introduced “Polar Bear” gloves for slicers and boners to wear on their knife hands. These gloves were very successful in reducing the incidence of knife injuries. They were brought into this country by the defendant from the United States and were the subject of extensive trials before being made generally available to workers. There was no suggestion that they ought to have been introduced any earlier than they were. However, the plaintiff contended, and the defendant disputed, that at an earlier time there were other gloves available which, while not as good as the “Polar Bear” gloves proved to be, could have been used by slicers and boners and which would have had a substantial impact in reducing the risk of such injuries.
The defendant’s Group Occupational Co-ordinator, Jones, claimed that prior to the introduction of the “Polar Bear” glove there was no glove available that was suitable for use by boners and slicers. He considered that the “Whizard” glove was suitable only for use by slaughterers. On the other hand, the plaintiff’s expert, O’Sullivan, said there were gloves of cut-resistant synthetic fibre available for use in Australia in 1995. He gave evidence of successful trials in the early 1990’s using “Whizard” gloves, and he disputed the claims that those gloves were limited to use with Whizard knives or that the trials did not involve using a Victorinox knife (the type used by the plaintiff) or a boning or slicing knife. Jones’ assertions were not based on any adequate trials of other gloves, but rather on his “gut feeling” that none of the earlier gloves would have been suitable. I prefer the evidence of O’Sullivan. I find that the defendant breached its duty to the plaintiff by failing to supply a cut resistant glove for use on his knife hand.
In July 1996 the plaintiff exacerbated his shoulder injury when he was working as a slicer. He was assigned to the particular task about 20 minutes after the shift commenced, by which time a pile of boned meat had built up and was sitting next to his cutting board. It included loins and flanks weighing up to 30 - 35 kgs. He reached with his right hand across the front of his body to grasp a full flank/strip loin which he estimated as weighing 25 - 30 kgs; having grasped it, he lifted and pulled it up and over from the stack on to his cutting board. As he did so, he felt a sharp pain in his right shoulder. There was no conflict between the plaintiff’s expert O’Sullivan and the defendant’s expert Jenkins as to the forces involved, the mechanics of the accident or the appropriate counter measures available to avoid it. The defendant’s counsel seized upon earlier statements by the plaintiff to Dr Lockwood and the Workers’ Compensation Board to the effect that the piece of meat weighed between five and ten kgs. If that was all it weighed, then handling it “should not cause great difficulty to the plaintiff”. I accept the plaintiff’s explanation that the five to ten kgs was only an estimate, and that he did not know the true weight until he saw similar pieces of meat weighed. I note that the defendant supplied O’Sullivan with the weights of three such pieces, all in the vicinity of 30 - 31 kgs (exhibit 24).
The plaintiff had four weeks off work before returning to work. In that time he had a cortisone injection and a course of physiotherapy. By then the pain had subsided to a level similar to the pre-July 1996 level. I regard the July 1996 incident as causing an exacerbation of the earlier injury.
When the plaintiff returned to work after the July 1996 incident, there were no light duties available, and he went back to slicing. He experienced pain in the thumb on his left hand. Discomfort in his right shoulder interfered with his slicing and boning activities. In January 1997 he slipped and fell in the preselection room, aggravating his shoulder injury again. In February 1997 he was put on light duties, but they included pushing beef. When his doctor certified that he should not push beef, he was put on labouring tasks for four or five weeks, with a substantial drop in pay.
On 3 March 1997 he took up the position of tally clerk at a higher wage than a labourer (but still less than that of a top boner). This involved not only clerical work (keeping records of the amount of beef going through on to the boning floor), but also pushing for up to three or four hours per day. His shoulder got worse, and towards the end of 1997 he was having to put ice on it at night three or four times a week. After the Christmas break, he went back to work for one week, and then resigned.
The plaintiff moved to the Gold Coast, where he looked for work unsuccessfully for six months. Then he enrolled in a TAFE course in childcare education which he undertook for six months before moving back to Toowoomba at the end of 1998 or beginning of 1999. He did a course in diversional therapy and community services, and has been working as a lifestyle assistant with intellectually disabled persons. The work is not physically demanding. His shoulder still aches on various recreational activities. He cannot straighten his left little finger which stands apart from the other fingers.
I allow $40,000-00 damages for pain and suffering and loss of the amenities of life. Of this I apportion $25,000-00 to pretrial loss on which I allow interest at 2% per annum over five years ($2,500-00).
Because of his shoulder injury, the plaintiff lost the benefit of the full remuneration of a boner rate 1 at various times between December 1995 and January 1998. That diminution in earnings can be summarised as follows -
19 - 28 January 1996 following finger injury $551-00 nett 10 July - 13 August 1996 following exacerbation of shoulder injury - loss of $551 net per week $2755-00 nett
February 1997 - drop to labouring rates for about 5 weeks - loss of $160
nett per week $ 800-00 nett 3 March 1997 to January 1998 - worked as tally clerk - reduced income - loss of $80-00 nett per week. $4,000-00 nett
Thereafter he was unemployed for six months. Since completing the course in diversional therapy and community service he has had part-time work with two organisations - Ultimate Assistance and CASSI. He is still building up the number of hours he works for CASSI. At present he is working about 45 - 48 hours per fortnight, but he hopes to reach an average of 30 - 35 hours per week. He is paid $17-00 per hour. He earns about $60-00 per week from Ultimate Assistance; which he does not expect this to increase. If he can build up his hours with CASSI as he wishes, his income will exceed his average income from the defendant.
The pla int i f f’s actual nett income from January 1998 to 30 June 2000 was $11,361-00. Had he remained in his preaccident employment, he could have expected to earn $551-00 nett per week, a total of about $42,000-00 over 76 weeks. Thus his prima facie loss over that period is $30,639-00. Loss of the same magnitude ($140-00 nett per week) between 1 July 2000 and judgment (24 weeks) amounts to $3,360-00.
The total amount claimed for past loss of earning capacity is $42,105-00. This needs to be discounted for contingencies. Counsel for the defendant drew attention to the reason the plaintiff gave for leaving the defendant’s employ in forms completed at about that time - namely, to escape the monotony of work in a factory, and to the fact that he always intended undertaking some further education. (He had left school after Year 12 without obtaining his Senior Certificate.) However, I accept that continuing problems with his shoulder were the real reason why he left the defendant’s employ, and that he gave the other explanation so as not to jeopardise his future job prospects. In all the circumstances, I allow $35,000-00 for pre-trial loss of earning capacity.
The plaintiff has received worker’s compensation benefits of $2,698-33 and social security payments of $14,325-21. I allow interest on $20,000-00 of the past loss of earning capacity at 5% per annum over five years ($5,000-00).
The plaintiff claims for the loss of employer contributions to superannuation. These should be calculated at 5% of gross earnings for the period 1 July 1995 to 30 June 1996, 6% for the period 1 July 1996 to 30 June 1998, 7% for the period 1 July 1998 to 30 June 2000, and 8% for the period from 1 July 2000 to trial. Then there must be provision for income tax of 30%. Counsel concurred in submitting that in the circumstances of this case it would be sufficient to take a flat percentage of the nett loss - counsel for the plaintiff contending for 7% and counsel for the defendant 6%. I allow $2,450-00 under this head (7% of $35,000-00).
Although the plaintiff is hopeful of securing enough work with CASSI to raise his income level above that of a top rate boner, his physical impairments are such that he would be at a disadvantage on the open labour market. It is appropriate to make some global allowance for this. His counsel contended for $80,000-00 and the defendant’s counsel contended for $20,000-00. I allow $40,000-00 for future loss of earning capacity, which includes future loss of employer contributions to superannuation.
I allow $315-00 under the principle in Griffiths v Kerkemeyer for the pretrial period. Interest on that amount over five years at 5% per annum comes to $78-75. I allow a total of $395-00 for past gratuitous services and interest.
I allow the following special damages -
Expenses paid by WorkCover $ 1,792-01 Health Insurance Commission $ 244-10 Other $ 1,290-90 Total $ 3,327-01
| [31] | There is some chance that the plaintiff will require surgery on his shoulder at a cost of $2,450-00. I allow $500-00 under this head. |
The Fox v Wood component is $584-70.
The amount of the WorkCover “refund” is $4,490-34.
In summary, my assessment of damages is as follows -
Pain and suffering $ 40,000-00 Interest on past pain and suffering $ 2,500-00 Past loss of earning capacity $ 35,000-00 Interest on past loss of earning capacity $ 5,000-00 Past loss of superannuation contributions $ 2,450-00 Future loss of earning capacity (including superannuation) $ 40,000-00 Past Griffiths v Kerkemeyer (including interest) $ 395-00 Special damages $ 3,327-01 Future surgery $ 500-00 Fox v Wood $ 584-70
$ 129,756-71
less WorkCover refund $ 4,490-34
$ 125,266-37
I give judgment for the plaintiff against the defendant for $125,266-37.
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