Reiersen v Homestead Shearing Contractors Pty Ltd
[2020] VCC 1255
•27 August 2020
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-04598
| ADRIAN REIERSEN | Plaintiff |
| v | |
| HOMESTEAD SHEARING CONTRACTORS PTY LTD | First Defendant |
| and | |
| JUDITH ANNE PRASSER | Second Defendant |
| and | |
| PETER WILLIAM PRASSER | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Warrnambool (via Zoom technology) | |
DATE OF HEARING: | 29 and 30 June and 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15 and 16 July 2020 | |
DATE OF JUDGMENT: | 27 August 2020 | |
CASE MAY BE CITED AS: | Reiersen v Homestead Shearing Contractors Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1255 | |
REASONS FOR JUDGMENT
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Subject: INDUSTRIAL INJURY – CAUSE
Catchwords: The plaintiff, a shearer, claimed to have injured his lower back in the course of his employment with the first defendant, a shearing contractor, whilst shearing at a shearing shed on a property owned and operated by the second and third defendants – whether the first defendant failed in its duty of care to inspect the shed and ensure the plaintiff had a safe place and system of work – whether second and third defendants were in breach of their general duty of care and the duty owed pursuant to s14B of the Wrongs Act 1958 – plaintiff claims he had to lift a sheep over wool on the ground as he twisted to position the sheep for shearing, suffering an injury to his lower back – whether shearing “board” too narrow – whether “drag path”, along which the sheep was pulled, required him to twist or turn in an acute arc – whether the drag path should have been smooth and more gentle – whether breach of the Occupational Health and Safety Regulations 2007 – whether risk assessment conducted – whether plaintiff contributorily negligent in lifting the sheep when it was not necessary to do so – whether plaintiff failed to look where he was going - pre-existing lower back degenerative condition – plaintiff underwent microdiscectomy after incident – ongoing pain and restriction – loss of employment as a shearer – nature and extent of pain and suffering and economic loss damages
Legislation Cited: Wrongs Act 1958; Occupational Health and Safety Regulations 2007
Cases Cited:Liftronic Pty Ltd v Unver [2001] HCA 24; McLean v Tedman & Anor (1984) 155 CLR 306; Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
Judgment: Judgment for the plaintiff against both defendants. No contributory negligence on the part of the plaintiff. Contribution apportioned equally between defendants. Damages assessed for pain and suffering, and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Stringer Clark |
| For the First Defendant | Mr A D Clements QC with Ms F Ryan | Thomson Geer |
| For the Second and Third Defendants | Mr D Myers | Meridian Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Adrian Reiersen, started shearing at a young age. He became a skilled shearer. At one point in his lengthy career, he sheared over six hundred sheep in a nine-hour day. He moved to Australia from New Zealand and sheared here mainly around the Western District.
2 In 2015, Mr Reiersen was employed as a shearer by the first defendant, Homestead Shearing Contractors Pty Ltd (“Homestead”), a shearing contractor, and was directed to work at a sheep property owned by the second and third defendants, Mr and Mrs Prasser, known as “Wiltshire Farm”, near Hamilton in Western Victoria.
3 Mr Reiersen said the shearing shed at Wiltshire Farm was a “hard” shed; that is, the layout and set up in the shearing area was such that it made shearing physically difficult. The shearing process is repetitive and demanding and it is the shearer’s art to shear the sheep quickly and efficiently while placing the least stress upon their lower back.
4 Mr Reiersen was paid on a per head basis. The sheep being shorn at Wiltshire Farm at the time were crossbreed sheep, some weighing 60 to 70 kilograms.
5 Mr Reiersen suffered from backache over many years, including in the weeks before the subject incident, although the situation was never such as to cause him to take time off work. He used chiropractors and like practitioners to treat his back on a reasonably regular basis.
6 On Thursday, 26 November 2015, about four days into a shearing contract at Wiltshire Farm, Mr Reiersen claims he was twisting as he lifted a sheep, and suffered an injury to his lower spine. He says he lifted the sheep to get it over some wool or fleece lying on the shearing shed floor. He felt an immediate “crunching” or “squelching” sensation in his lower spine. He was able to keep working, although saw a chiropractor within a day or so.
7 Mr Reiersen kept working until around 7 December 2015, when he says he was forced to stop due to his lower back symptoms. He has not worked as a shearer, or in any other capacity, since. Eventually, he was referred by his general practitioner to a neurosurgeon, Dr Caroline Tan. On 28 July 2017, she performed a microdiscectomy at the L5-S1 lumbar level. The surgery helped the leg pain and altered sensation but did little to improve his lower back pain.
8 Mr Reiersen currently manages his lower back condition conservatively. There is the prospect of further surgery in the nature of a fusion at the L5-S1 level. He has applied for various jobs but has not been able to obtain a one. He thinks his future is bleak.
9 The plaintiff alleges his injury was caused or contributed to by the negligence of the first defendant and that of the second and third defendants. He further alleges a breach of the Occupational Health and Safety Regulations 2007 (“the Regulations”) by each defendant which was a cause of his injury.
10 There was a large volume of evidence, both lay and expert, about the layout of the shearing shed and the system of work employed. At the end of the day, not all of it is relevant to the issues to be determined.
11 It was not until final submissions that Mr Brett, counsel for the plaintiff, gave real precision to the way the case was put.[1] He said the plaintiff suffered injury when he was dragging a sheep from one of the catching pens to the “stand” where he was to shear the sheep (“the drag path”). As he came through the catching pen gates, he encountered some wool or fleece on the shearing area floor (or “board”). He lifted the sheep to get it over the wool. As he lifted the sheep, he was twisting, as the drag path required him to turn in an arc to properly place the sheep at the shearing stand. It was the combination of the lifting of the sheep while his body was twisting through the arc of the drag path which caused injury.
[1]Transcript (“T”) 1099 Line (“L”) 27 – T1101, L3
12 The reason he had to lift the sheep was because sheep do not like being pulled through wool on the ground and are liable to kick. The reason he had to twist was because of the acute angle of the drag path. That angle was a result of the narrowness of the board and the lack of a smooth alignment between the catching pen gates and the shearing stand.
13 Mr Brett went on[2] to confine the particulars of negligence alleged against Homestead as:
[2]T1108, L31
(a) failing to inspect the shed so as to ensure its fitness for purpose;
…
(c) failing to advise the second and third defendants of the problems with the shed, including:
(i) the poor layout of the shed;
…
(iv) the insufficient width of the shearing board;
(d) failing to comply with section 21 of the Occupational Health and Safety Act 2004;
(e) failing to comply with Regulations 3.1.1, 3.1.2 and 3.1.3 of the Regulations.[3]
[3]As set out in the plaintiff’s Amended Statement of Claim filed 29 June 2020
14 As against the Prassers, the particulars of negligence were confined to:[4]
[4]T1102, L19
(a) failing to provide a shearing shed for the use of the plaintiff and other shearers which was maintained and laid out in accordance with modern shearing practices;
…
(c) failing to provide a shearing board of sufficient width to enable sheep to be dragged to the shearing stand and turned with a minimal amount of rotation;
…
(h) failing to ensure that each shearing stand was sufficiently offset from the gate to the catching pen as to minimise the rotation performed in manoeuvring a sheep into position for shearing;
(i) failing to comply with the guidelines set out in the material entitled “Health and Safety in Shearing” and in particular, Guideline 6.3 and 8.2;
(j) failing to comply with s26 of the Occupational Health and Safety Act 2004;
(k) failing to comply with Regulations 3.1.1, 3.1.2 and 3.1.3 of the Regulations.
15 As against the Prassers, the plaintiff also alleges a breach of the Occupiers Liability provisions of the Wrongs Act 1958. However, save for some brief reference in final submissions, no real difference was drawn between the nature of the duty owed at common law and that of an occupier under the Act. For the purpose of my determination, I shall consider the position of the Prassers under their general common law duty. There is no issue such a duty was owed.
16 In essence, the plaintiff alleges that Homestead ought to have inspected the shed and, in the light of publications and information about good shearing practice available at the time, identified the risk of injury if a shearer was twisting on the drag path and requested Mr and Mrs Prasser take steps to align the path to a smoother arc to reduce the twisting required.
17 He alleges the Prassers ought also to have inspected the shed and to have taken steps to align that path and change the width of the shearing board, which he says was a relatively straightforward and inexpensive thing to do.
18 He also alleges each defendant breached the Regulations.
Did Mr Reiersen suffer an injury on 26 November 2015 and, if so, how did it happen?
Was there an incident at all?
19 Mr Reiersen commenced work at Wiltshire Farm on Monday, 23 November 2015. On Thursday, 26 November 2015, at around 3.00pm, he was dragging a sheep, walking backwards, from the gates (or doors) of the catching pen to his shearing stand. He said there was wool on the floor, to the right-hand side of the catching pen gate and across its opening, which had become piled up. That meant he either had to get around the wool – which would take him in the wrong direction – or lift the sheep over it. He lifted the sheep over the wool, while twisting to the right to position the sheep for shearing. The sheep was a cross-breed and weighed something around 60 to 70 kilograms. In that process of lifting the sheep while he was twisting, he felt a “squelching” or “crunching” in the base of his spine.
20In examination-in-chief, Mr Reiersen described the incident:
Q:“What were you doing?‑‑‑
A:I was dragging a sheep from the door to my position where I shear. I had my right leg fully extended and I was ‑ ‑ ‑
Q:Before we get to your right leg being fully extended, as you left the catching pen door, was there any obstacle on the floor?‑‑‑
A:Ah, wool.
Q: Where was that?‑‑‑
A: Ah, on the right-hand side of the door opening.
Q: Did it ‑ ‑ ‑?‑‑‑
A: Piled up, piled up.
Q:Was the door opening completely clear or was there anything across it?‑‑‑
A:There was wool halfway across the opening.
Q:So what did that mean about the path that you had to take?‑‑‑
A:That meant I either had to go around it or - around in the wrong direction or lift the sheep over the wool.
…
Q: What did you do?‑‑‑
A: I, um, lifted the sheep over the - over the wool.
Q:Were you doing anything yourself at that stage? Were you in a straight line or were you moving or turning in any way?‑‑‑
A:I was, ah, turning facing towards Stand 1. My back was faced towards Stand 1.
Q: So were you turning around to the right or to the left?‑‑‑
A:I was facing the - facing the right, my back was facing the right and I was lifting it over the wool.
… .”
HIS HONOUR:
Q:“Just a moment. You’re looking at the gate at this point, Mr Reiersen?‑‑‑
A:Ah, okay.
Q:And you’ve got your arms out in front of you and you’d be holding the four legs of the sheep; is that right?‑‑‑
A:Correct.
Q: Yes, go on?‑‑‑
A:So I would’ve stepped back this way, lifted the sheep and twisted to get into position so I was like this.
…
Q:Yes, I would, please, because I just missed it. I was trying to write something down?‑‑‑
A:So I would’ve come out the gate like this, I would’ve extended my right leg behind me, lifted and twisted the sheep to put it in the right position.
… .”
MR BRETT
Q:“Why couldn’t you drag the sheep through the pile of wool?‑‑‑
A:Ah, I didn’t know that the pile was there until I’d walked through it.
Q:At that stage, why couldn’t you just drag the sheep through it? Why did you lift it?‑‑‑
A:Um, because if the sheep get wool on their hooves or on their legs, their hind legs especially, they can go quite - they can violently kick.
Q:All right. How much do the sheep weigh, just by the way?‑‑‑
A:I estimated they weigh 60, 70 kilos.
…
Q:All right. Now, as you did this, did you feel anything?‑‑‑
A:Yeah, I felt a soft crunching feeling in the base of my spine.
Q:And what did you do then?‑‑‑
A:I paused for 20 seconds and, um, do you want ‑ ‑ ‑
Q: Yes?—
A:Do you want to know what happened? Okay. So I paused, stood up, stopped. Um, Lewis [scil Louis] Kyle, who was shearing in front of me, stood up to see what was wrong. He turned round to me and asked me what was wrong, and I told him that I think I’ve done something to my back.”[5]
[5]T111, L24 – T114, L15
21Further, in the course of cross-examination, Mr Reiersen said the following:
Q:“… This is what happened. As you were dragging the sheep backwards, you turned to the right, you twisted to the right, and as you twisted, you felt a squelching in your low back. That’s what happened, isn’t it?‑‑‑
A:Um, you’re missing out the - the wool on the floor that I had to lift the sheep over at the same time.
Q:Well, I suggest to you that at the time you felt the squelching in your low back, you were not lifting the sheep. At the time you felt the squelching you were dragging and twisting, but you weren’t lifting. That’s what I put to you. Do you agree?‑‑‑
A:No, I don’t agree.
…
Q:All right. So I think you’ve understood this, but I’ll just try it one - make sure of this. I’m suggesting to you what you did when you hurt your back is you were dragging and twisting but not lifting the sheep. That’s what I suggest to you. That at the moment you felt this feeling in your lower back, you weren’t lifting the sheep. It was the dragging and twisting motion?‑‑‑
A:I don’t agree with that.
…
Q:Yes. Now, as you walked from Stand 2 towards your gates to the catching pen, did you see any wool on the floor across the opening of the catching pen gate?‑‑‑
A:I don’t recall seeing wool.
Q:Okay. If you had seen it, you would kicked it out of the way or yelled ‘wool away’, but you don’t recall seeing it, is that fair?‑‑‑
A:I don’t recall ‑ ‑ ‑
…
Q:Sorry, yes, I accept that. Anyway, you don’t recall seeing wool being there?‑‑‑
A:No.
Q:Are you confident it was not there?‑‑‑
A:I’m not confident it was not there.
Q:Well, if it had been there, you wouldn’t have done nothing about it, would you?‑‑‑
A:No.
Q:You would have kicked it out of the way, that’s one thing you might have done?‑‑‑
A:Correct.
Q:Or you might have yelled ‘wool away’?‑‑‑
A:Probably not. I probably would have kicked it out of the way.
…
Q:Now, as you were making your way out of the catching pen with this sheep, you had to open those gates by pushing them outwards so that they moved outwards into the shearing board, correct?‑‑‑
A: Correct.
Q:Can you remember whether you pushed both of them open or just one or can’t you remember?‑‑‑
A:Generally you’re going, um, through the centre, so you – there’s not – um, both have to be open. The gates – you wouldn’t fit by getting just one gate open.
Q:Yes. So in other words, the gates are too narrow for you to get out with a sheep by only opening one of them, is that fair?‑‑‑
A:That’s correct.
Q:Yes. Okay. Now, as you walked backwards out through these gates and they pushed out into the shearing board area, those out swinging gates would push away any wool on the floor which was across the entrance of the gates, wouldn’t they?‑‑‑
A:They would push the wool away but when they closed the wool would bounce back to where the wool was. It’s wool.
Q:Well, I suggest that’s not correct. It is not like a bouncy ball. The wool would just be pushed along the floor away from the gateway by the out swinging gate, that’s true, isn’t it?‑‑‑
A:Ah, fleece wool would bounce back.
Q:You don’t say you saw it bounce back on this occasion, do you?‑‑‑
A:I don’t say that I saw it on this occasion but my experience is that fleece wool pushed by a door will go back, it will bounce back.
…
Q:Well, you don’t know how big the pile of wool was, because you didn’t see it. Is that right?‑‑‑
A:I know I had to lift the sheep, and that would be the only reason why.
Q:But you didn’t see the pile of wool; is that correct?‑‑‑
A:I wouldn’t have seen the pile of wool backing out of the pen, because I was faced forward.
Q:Okay. But I’m not asking you whether you would have seen it. What I’m saying to you is you didn’t see it, did you?‑‑‑
A:I would have felt it on my feet, probably.
Q:Okay. But can you please just answer the question. You didn’t see it, did you?‑‑‑
A:I had to lift the sheep, so there had to be a – an obstruction there.
Q:Okay. I’m going to keep asking you this until you answer it. You didn’t see the wool on the floor across the opening, did you?‑‑‑
A:I wouldn’t have seen the wool on the floor across the opening because the sheep would have obstructed my view.
… .”
HIS HONOUR:
Q:“… But put aside what you would have done, or put aside trying to reconstruct what happened. Really, what you’re just being asked is, did you see the wool on the ground before you hurt your back?‑‑‑
A:No, I didn’t see the wool on (indistinct).
Q:(Indistinct words)?‑‑‑
A:No, I didn’t see the wool on – on the ground.
Thank you.”
MR CLEMENTS:
Q:And because you didn’t see the wool on the ground, you’re not able to say anything about what sort of wool it was, how big it was, how high it was, anything like that; correct?‑‑‑
A:I – I would have walked through the wool and I would have felt the wool around my right-hand foot.”[6]
[6]T217, L1 – T236, L10
22 Mr Myers, counsel for the second and third defendants, submitted no incident occurred on 26 November 2015 such as to give rise to the plaintiff’s lower back injury. His back condition, such as it is, is as a result of a degenerative process and not a specific incident.
23 Mr Myers pointed to the Worker’s Claim Form[7] which states that the date of injury was 7 December 2015. The “Claim for Impairment Benefits” form dated 21 March 2018,[8] which was apparently completed with the assistance of a solicitor, stated the injury occurred over a ten-month period and “was first noticed on 08/10/2014”. The general practitioner, whom Mr Reiersen saw on 8 December 2014, recorded “ongoing chronic lower back/right hip pain for more than 6/12”.[9] The physiotherapist, Ms Jess Fishburn, in her report of 22 May 2017,[10] noted “Adrian reported hurting his back at work as a shearer for Homestead Shearing Pty Ltd around the 7th December 2015”. He described to that practitioner the mechanism of injury as “a lifting motion while dragging a large ewe with rotation to the right and pain was felt instantly”.
[7]Exhibit D1F
[8]Exhibit D1M
[9]Exhibit D2/3F
[10]Exhibit 7
24 Further, Mr Myers said that despite there being three other shearers present, with two wool handlers and a presser, not one of those witnesses, all of whom were called to give evidence (except one of the shearers), could recall any incident such as to cause injury to the plaintiff’s lower spine. In particular, Mr Louis Kyle, the shearer to whom Mr Reiersen said he told he thought he had done something to his back, could not recall any such conversation. Despite having dragged sheep in the course of the week many hundreds of times, there had been no similar incident. There was no entry in the Injury Book.[11] Mr Myers submitted that, if anything, the plaintiff’s back condition was ongoing degeneration about which Mr Reiersen had been complaining to his chiropractor only two weeks earlier.[12]
[11]Exhibit D2/3G
[12]T1042
25 My Myers said the expert relied upon by the plaintiff, Mr Michael Lawrance, did not refer to any incident in the course of his lengthy reports.
26 Importantly, said Mr Myers, despite claiming to have prolapsed a disc on 26 November 2015, Mr Reiersen was able to continue shearing that day and for several days thereafter at Wiltshire Farm, and then over a week or so at another farm, with tallies as high or higher than the other good shearers there present. How could he have sheared those tallies with a prolapsed disc?
27 Mr Myers claimed the plaintiff had, in the course of the proceeding “changed tack” and alleged the incident occurred not at the catching pen gates, as was his evidence at the outset, but, rather, at the point of turning the sheep to shear at the shearing stand, as was depicted in a short video admitted into evidence.[13]
[13]Exhibit D2/3A
28 I am satisfied Mr Reiersen suffered an injury to his lower spine on 26 November 2015. He impressed me as an honest, straightforward man doing his best to give an accurate account of what had occurred. To accept the position of the second and third defendants, Mr Reiersen had invented the incident for the sake of his damages claim. I found him neither dishonest nor sophisticated. I do not accept Mr Myers’ submission there were credit issues which should cause me to have reservations about his credibility. There were no credit issues of significance in my view.
29 The date of 7 December 2015 being included in the Claim Form may be explained by the confusion the plaintiff said he had about the correct date to insert in the form. He thought the date to insert was the date he finished work. For a man of his limited education and lack of familiarity with the WorkCover claims system, that mistake is understandable. The impairment benefits Claim Form is curious, but I am satisfied it is explained by the solicitor being uncertain as to whether to make a claim for injury over a period of time in the face of a clear history of prior back problems.
30 The lack of any of the witnesses’ ability to recall any incident is explained in two ways: firstly, the incident and its aftermath were not particularly dramatic, and it is difficult now, over five years later, to recall such an occurrence, in particular given that Mr Reiersen kept working for several days at Wiltshire Farm, and then the following week; secondly, I accept Mr Reiersen is a stoical man, reluctant to make complaints in a physically demanding and competitive industry. I accept his explanation that he thought he would make some recovery from the pain, as had occurred in the past. In an email to the insurer on 14 January 2016,[14] which attached a ‘diary of events’, he explained the dates written in the Claim Form.
[14]Exhibit D1H
31 The fact that no injury had been suffered by the plaintiff despite dragging a sheep many times before at Wiltshire Farm, does not mean it did not happen as the plaintiff claims.
32 The report of Mr Lawrance was commissioned by the Victorian WorkCover Authority for the purpose of the recovery action, and the questions asked by the solicitors who retained him[15] did not provide any information about the incident, nor seek Mr Lawrance’s opinion as to its cause. He was asked rather to examine the shearing shed and analyse the drag paths and whether they met the appropriate industry standards.
[15]Exhibit 3 – Plaintiff’s Court Book (“PCB”) 239
33 Further, the fact that Mr Reiersen was able to continue shearing, is consistent with his evidence that he first thought he had suffered some strain which he expected would get better. I accept his explanation that by early December 2015, he was simply unable to continue.
34 Mr Reiersen’s email to the insurer in January 2016, which Mr Brett, counsel for the plaintiff, described as a “guileless” communication, supports the occurrence of the incident, was clearly an attempt to clarify the dates in the Claim Form, and give an accurate description as to what occurred at a time when Mr Reiersen needed money to help pay the bills. Mr Reiersen’s failure to make an entry in the injury book, or report the matter to the owners and operators of Homestead, Mr Tony Cook and Ms Donna Cook, or Mr Donald Fittler, the farm manager employed by the Prassers, is consistent with his relative naïvety about the WorkCover process, and the belief that he would recover. Further, from a relatively early time, he was dealing with an insurance company and it was to that institution that he directed his communications.
35 In January 2016, when examined by Mr Philip Sharp, surgeon, at the request of the insurer, he described the incident on 26 November 2015 as “… in the late afternoon he went to pull a sheep out when he twisted his torso to the right and felt a ‘squelching feeling I have never felt before’. He finished his shift but during this time his back tightened. Later that day he saw a chiropractor.”[16]
[16]First Defendant’s Court Book (“D1CB)” 10
36 In April 2016, to Ms Caroline Tan, the surgeon who subsequently operated on his lower spine, he described the incident as –
“… pulling a particularly heavy sheep across the floor of the woolshed and as he did so twisted in order to position the sheep for shearing. He described feeling a crunch sensation in his back at the time and after that his back did not feel right. That night he experienced tightening of his back and legs. The next day, he experienced tingling down his right lower limb to the ankle.”[17]
[17]Exhibit 5, PCB 67
37 It was submitted by Mr Myers that an adverse inference ought to be drawn by the failure of the plaintiff to call Mr Tim Brody. Mr Brody was the owner of a farm at whose premises Mr Reiersen sheared on 5 and 6 December 2015. Likewise, said Mr Myers, it would be reasonable to expect the plaintiff to have called Mr Josh Lilley, another shearer with whom he sheared in the following week. Given the stoical nature of the plaintiff, I am of a view it would be unlikely he would have complained about his back to those persons. Rather, as he said in evidence, he put up with the pain until it got to the point when he could not continue. In any event, the chiropractic notes document the injury a day after it occurred.
38 In these circumstances, I am satisfied Mr Reiersen suffered a significant injury to his lower spine while he was dragging a sheep from the catching pens to his shearing stand. Given the description he gave of the sensation he felt, I am satisfied that around that time, he suffered a prolapse to a disc in his lower spine.
Did the incident involve lifting a sheep over wool?
39 Given I am satisfied Mr Reiersen suffered an injury, the next question is whether the incident involved lifting a sheep over wool? Mr Clements, counsel for the first defendant, while accepting the incident occurred when the plaintiff was dragging a sheep from the catching pen to the shearing stand as he twisted, submitted I could not be satisfied it occurred while he was lifting a sheep over wool. This is understandable as, from the commencement of the trial until final submissions, the plaintiff maintained against the first defendant an allegation of negligence, in that it failed to employ sufficient numbers of wool handlers at the shed which led to the build-up of wool on the shearing board; however, in the face of evidence from a number of witnesses that two wool handlers to four shearers with sheep of this type was the appropriate ratio, that allegation was not pursued.
40 Mr Clements submitted the plaintiff did not lift the sheep at the time of the incident, the injury did not involve the plaintiff stepping on fleece or wool on the shearing board and there was no wool or fleece on the shearing board where the plaintiff suffered the injury. In any event, said Mr Clements, the incident, such as it was, caused only a minor aggravation to his longstanding degenerative back condition.
41 Mr Clements referred to various histories and reports made by the plaintiff after the incident.
42 To Dr Remo Parente, the chiropractor who Mr Reiersen saw on Friday, 27 November 2015, he said he was “dragging a sheep out to shear”.[18]
[18]Exhibit D1A
43 In his diary of events,[19] in a history to Mr Sharp, a consultant surgeon,[20] and to Ms Tan, he referred to dragging a sheep, or dragging a sheep while twisting.
[19]Exhibit D1H
[20]Exhibit 16
44 To none of these practitioners did he say he was lifting a sheep over wool.
45 However, to the physiotherapist, Ms Fishburn, according to her report of 22 May 2017, Mr Reiersen gave a history at the time he first consulted her in September 2016 of –
“Adrian reported hurting [h]is back at work as a Shearer for Homestead Shearing PTY LTD. around the 7th of December 2015. He described the mechanism of injury as a lifting motion while dragging a large ewe with rotation to the right and pain was felt instantly. … .”[21]
[21]Exhibit 7, PCB 61
46 Further, Mr Clements said that the plaintiff was inconsistent in his evidence as to the extent to which the sheep had been lifted off the ground. In any event, Mr Clements said that the incident occurred not when he was lifting the sheep, but, rather, when he had to twist.[22]
[22]T379, L25 – T380, L8
47 Mr Clements submitted there were four reasons why I should not accept that there was any wool in the plaintiff’s path, or that he lifted a sheep over it.[23] However, I am not convinced that the matters referred to make it inherently unlikely Mr Reiersen lifted the sheep, or at least took the weight of it, so as to avoid wool on the ground.
[23]First defendant’s submissions – paragraph 29
48 Mr Reiersen was clear in his evidence that, although he could not see the wool on the shearing stand, as he was dragging a sheep backwards, he felt it around his leg at the catching pen gates. As Mr Brett pointed out in submissions, there would be no reason for Mr Reiersen to invent this explanation. To do so only complicated his case. While it is clear he did not give a precise history of lifting to many of the early practitioners, that, again, can be explained by him not understanding the detail required in a WorkCover claim, and his relative lack of sophistication. In any event, the histories obtained by practitioners in the course of treatment should be regarded with some caution. They are never written in the expectation they will be combed over in the course of a trial many years later. The practitioners do not record everything that is said. It is not intended to take a precise and accurate history. Further, in my experience, clinical notes are not always accurate. I reiterate I found Mr Reiersen a truthful witness whose credit was not impeached to any real extent in cross-examination.
49 The build-up of wool or fleece in the area Mr Reiersen described was consistent with the evidence of the two wool handlers who were present on the day: Ms Denise Akehurst said that while generally, the wool would be swept or carried to the area of the wool press, occasionally it would be rolled up to a neat ball and placed out of the way near the catching pen gates.[24] Ms Terina Barrett, the other wool handler, said that fleece might be pushed to the side of the catching pen doors.[25]
[24] T752-753
[25]T789-790
50 While a number of the witnesses who gave evidence said they would never lift a sheep in the manner described, it is clear from the video taken of a shearing operation at Wiltshire Farm on another occasion[26] that at times a shearer may lift a sheep to position it, or at least take some of its weight in the turning process.
[26]Exhibit D2/3A
51 I accept the plaintiff’s evidence that he was lifting a sheep over wool on the board around the time he suffered the injury, although the incident would have happened so quickly, it would be difficult to be precise as to the extent to which the sheep was lifted off the ground, or whether he just took the weight of the sheep while he was in the process of twisting to get it over the wool and to his shearing stand.
Where on the shearing board did the incident occur?
52 It is clear from the plaintiff’s evidence that the point at which he lifted the sheep was just at or beyond the catching pen gates. According to the diagrams prepared by Mr Lawrance,[27] the distance between those gates and the shearing stand was 1.86 metres, a relatively narrow distance. Mr Reiersen’s evidence is that at the time of injury, he was twisting as he lifted the sheep. In his evidence, he emphasised it was the twisting which caused the “crunch” to happen.[28]
[27]Part of exhibit 3, PCB 270-271
[28]T379-380
53 It is the contention of the second and third defendants that after seeing the shearing video,[29] the plaintiff’s case changed, and it became an injury suffered not at or about the catching pen gates, but, rather, at the shearing stand. Mr Myers said this was because the video showed a shearer lifting or at least taking the weight of a sheep in order to manoeuvre it into position on the stand. The plaintiff, he said, readily adopted this depiction as what happened to him.
[29]Exhibit D2/3A
54 I do not accept the plaintiff changed his case, nor that he contended the injury occurred at the point where he was to shear the sheep. Rather, as a number of witnesses called on behalf of the defendants gave evidence to the effect that they would never lift a sheep, the video was used to show that the shearer depicted did in fact lift the sheep or take its weight. I am satisfied that, relevantly, the plaintiff’s case is that the incident occurred at or some short distance close to the catching pen doors, on the shearing board.
The drag path
55 The drag path is central to the plaintiff’s allegations against the defendants. It involves the consideration of two issues. The first is the angle of drag Mr Reiersen was required to take between the catching pen gates and the shearing stand. This necessarily involved a twist of his body in order to position the sheep at the shearing stand. The second is the width of the shearing board which, to a large extent, dictated the acuteness of that angle.
56 Mr Reiersen says that on the first day of shearing, he had a conversation with the farm manager, Mr Fittler, about anchor points for his shearing harness. He alleges he pointed to some twine hanging from the rafters and said something to the effect that it did not look safe. He claims Mr Fittler, laughingly, said the Prassers did not like to spend money. In evidence, Mr Fittler denied any such conversation and disagreed with the concept that Mr and Mrs Prasser were not prepared to spend money on the farm. Not a great deal turns upon whether this conversation occurred in the way Mr Reiersen claims. Even if it did occur, I do not accept it is any indication that the second and third defendants were intentionally miserly about spending money on the layout of the shed.
57 Mr Reiersen further claims that a few days into the job, Mr Cook drove his motorbike to Mr Reiersen’s house. A discussion followed and Mr Reiersen claims he said that the shed, or the shearing work, was taking a toll on his body. He says Mr Cook responded by saying “hang in there” as there were some good jobs coming up before Christmas. Mr Cook recalled travelling to Mr Reiersen’s house, but could not recall the conversation. Even accepting Mr Reiersen made the complaint as alleged, it is of little moment in the issues to be considered, as it was vague and non-specific, in particular as to the drag path and the width of the shearing board.
58 On the day of the incident, there were four shearers shearing in the shed. Of those, in addition to Mr Reiersen, Mr Tony Becks (also known as “Goobs”) and Mr Louis Kyle gave evidence. Both were experienced shearers and had sheared at Wiltshire Farm in previous years. Neither had difficulty with Stand 2 and the drag path from the catching pens to it. Mr Kyle thought Stand 2 was the pick of the stands as it had a better drag and from it the shearer had the pick of the sheep from the catching pen.
59 Mr Tony Cook gave evidence. He and his wife took over operation of Homestead in May 2015. He was also an experienced shearer. He said the fastest shearers usually took either Stand 1 or Stand 2 at Wiltshire Farm as they were closer to the wool press. He thought that the drag paths from the catching pens to each of the stands were about the same. Although he could not recall precisely, it was his practise to inspect each shearing job to which he sent shearers. He said he had inspected the shed at Wiltshire Farm at some time before the shearing started in November 2015, although could not recall the particular day. He said he did not notice any problem with the shed. He also could not recall any complaints about the layout of the shed. He said that in inspecting the shed, he would want to ensure there were no “forward drags”. If there were, that meant you had to swing the sheep around when positioning the sheep for shearing. He could not recall any problems in that regard.
60 Evidence was given by Mr Donald Fittler, who was the farm manager at Wiltshire Farm from 2011, including in November 2015. Over his years, there was never any complaint to him about any problems with the shearing shed. He relied upon the expertise of Homestead in relation to safety of the shearing operation generally.
61 Mr Michael Lawrance’s reports of 28 October 2019 and 19 June 2020 were tendered.[30] Mr Lawrance was the only expert called to give evidence. He had worked as a shearer, shearing team manager and wool classer over fourteen years. He has various health-related academic qualifications. He is an ergonomist. He has experience in the design of shearing sheds. He was engaged by the Victorian WorkCover Authority to write a shearing occupational health and safety guidance document and has been involved in various other safety programs on behalf of the Australian Workers’ Union. Mr Lawrance inspected the shearing shed at Wiltshire Farm, and interviewed Mr Reiersen.
[30]Exhibit 3
62 Mr Lawrance said the physical effort required to drag a sheep can be high and is determined by the drag path, the weight and behaviour of the sheep, and the design of the shearing board.
63 Mr Lawrance was critical of the design of the shearing board at Wiltshire Farm.[31] His criticism included that the working area of the shearing board was narrow, in part because the shearing machines and downtubes were placed an unusual distance out from the wall and into the shearing board, a distance of 880 millimetres. He said further, that at times, given the speed at which the shearers sheared sheep, approximately one every 30 seconds, there was a build-up of wool against the catching pen wall.
[31]PCB 247
64 Mr Lawrance prepared a diagram replicating the drag path Mr Reiersen took as he exited the catching pen gates to his position on Stand 2.[32]
[32]PCB 251
65 In his report, Mr Lawrance described the drag path to Stand 2 as “suboptimal”. This was of significance, particularly given the sheep being shorn were large and heavy animals. He said:
“… This caused Adrian Reiersen to turn himself and the sheep first about 45 degrees in one direction immediately followed by turning about 135 degrees over a short distance in the opposite direction to get it into the required shearing starting position.
The shearing stand configuration of the down tubes being opposite the centre of the catching pen gates (as in this shearing shed) while not a significant matter when handling smaller lighter sheep becomes significant from a physical workload and ergonomic perspective as sheep weights, size and tallies increase.
Sheep need to be carefully positioned in relation to the down tube for shearing position and technique. Correct positioning at the start is essential to minimise physical workload and to allow efficient shearing.
The sheep needs to be pulled back into the shearing start position to optimally and comfortably accommodate both the sheep and the shearer. This is best achieved by puIling/dragging the sheep either directly back into position or through a smooth gentle arc which does not require twisting or lifting.
Where a sheep needs to be turned through 90° this can be achieved without the shearer twisting their back or placing rotational torque on their back by taking at least two steps through the turn. Adrian Reiersen’s work at Stand 2 in this shearing shed had him turning the sheep 45° in one direction then a very tight 135° turn in the opposite direction while lifting and controlling the sheep into position.
The effects of this were:
• That the physical workload stressors on the lower back were increased in the already heaviest component of the shearing tasks;
and,
• That the position of the sheep in relation to the down tube for shearing was compromised.
… .”[33]
[33]PCB 248-249
66 Mr Lawrance said this made shearing more difficult from a physical and “technique” point of view and affected the workload on the plaintiff’s lower back.
67 Mr Lawrance referred to a publication, ‘Health and Safety in Shearing, Victorian WorkCover Authority, 2001’.[34] He said this document was readily available within the shearing industry, including in 2015. The document was said to provide practical assistance in relation to health and safety in the shearing industry, including to employers, farmers and contractors. It noted that shearing is recognised as a high-risk occupation for injury and compensation claims. It noted the Occupational Health and Safety Act 1985 (Vic) provided that employers, farmers, managers and shearing contractors all had particular duties in relation to shearing sheds and a general duty of care to provide and maintain a safe working environment without risk to health. The document noted it was important to identify hazards in a shearing shed and to reduce or eliminate risk of injury.[35]
[34]PCB 273-331
[35]PCB 282
68 The document said that poorly located and orientated catching pens and gates could put an unnecessary strain on a shearer’s back:
“If a shearer is required to turn and twist each sheep through more than 90° as he or she drags it from the pen to the shearing position, the risk of injury, short and long-term, increases. … .”[36]
[36]PCB 288
69 Further:
“The shearer should be able to walk backwards from the catching pen gate to the downtube without needing to twist or turn more than 90°. That is, the shearer or crutcher, having caught the sheep in the catching pen, should be able to walk backwards, carrying or dragging the sheep from the catching pen gateway … to the shearing starting position beside the downtube, facing 3 o’clock or 9 o’clock depending on whether the shearer is right- or left-handed and whether the board design is across the board or open board.
The best design is where the shearer walks backwards to the shearing position through a smaller angle.”[37]
[37]PCB 288
70 Good shed design and layout was said to be directly related to health and safety hazards and risks. The document suggested there should be in place a system which enabled workers to participate in hazard identification and relay findings to owners or managers, through a contractor.
71 The document gave examples of various drag paths.[38] Given Wiltshire Farm had “across the board drags”, a smooth drag path as indicated by example 2 was recommended. Examples 3 and 4 were said to be inappropriate. Mr Lawrance was of the view the drag path Mr Reiersen was required to take was similar to drag paths 3 or 4 in the example.
[38]PCB 329
72 Mr Lawrance also made reference to an occupational health safety Shearing Information Pack produced in conjunction with The Shearing Contractors Association of Australia, Victorian Farmers Federation and the Australian Workers’ Union.[39] This document was published from 2006 and is said to have been available in and used by the shearing industry since then. It is said to provide information to shearing contractors and farmers and includes a checklist to be used at a site inspection before shearing is undertaken.
[39]Part of exhibit 3 - PCB 335
73 According to Mr Lawrance’s report, the use of this guidance material would have identified the need to change the shearing shed, including, relevantly, the need to relocate the catching pen gates.
74 In his second report, Mr Lawrance noted:
“As described in Section 3 of this report Adrian Reiersen’s work at the shearing shed during the week ending 27 November 2015 required him to manoeuvre each sheep through a series of turns both in the catching-pen and on the board finishing with a very tight 135° turn while lifting and twisting both himself and the sheep. This alone placed Adrian Reiersen at significant risk of back injury. … .”[40]
[40]PCB 350
75 In evidence, Mr Lawrance spoke about the turns Mr Reiersen was required to make as he came out of the catching pen gates:
Q:“Yes, and just explain, what’s the problem with that first turn? Why is that one undesirable?‑‑‑
A:Well, because it is turning away from where the down tube in the shearing position is which means you’re setting yourself up for a far greater than 90 degree turn.
Q:Yes, I see. And do you say that the turn - do you say it’s just the last two and the 135 degree one which placed him at risk of back injury or is it the combination of the first undesirable turn on the shearing board with the subsequent 135 degree one?‑‑‑
A:They work in combination and they work together and the fact that it makes both of them problematic is the narrowness of the shearing board which means they’re all – even though the first turn is nothing like 90 degrees, it has been done over a very short distance.
Q:Yes?‑‑‑
A:And it’s – it’s therefore because you have to drag in that wrong direction at the start of the drag, it means that the turn to get the sheep back to the shearing position beside the down tube is increased.
Q:Yes. And even if there’s no fleece on the ground, is the problem with this shearing shed because the board’s too narrow and Stand 2 is not in a good alignment with the catching pen gates, correct?‑‑‑
A:Those two things work in combination.
Q:Yes?‑‑‑
A:Creating a problem.
Q:As in the board being too narrow and poor alignment of shearing Stand 2?‑‑‑
A:The narrower the board the more the position of the down tube becomes problematic.
Q:Yes. And because this is a narrower board than you consider appropriate, it becomes significant that the Stand 2 down tube is in the wrong position?‑‑‑
A:I think I’ve used the words and I believe it, a suboptimal, there is a trade off in shearing shed often by putting the down tube at the centre of the catching pen gate so it can cater, it’s a compromise, for right and left hand shearers.
Q:Yes?‑‑‑
A:This one is, I think from memory about 100 mil off-set from the centre line so it is suboptimal. If it was a right shearing board it wouldn’t create such a problem, but given the narrowness of the shearing board it creates a significant problem.
Q:So even if there was no fleece on the ground, I’m just asking you to assume that for the moment, even if there was no fleece on the ground, there’s a problem here because of the narrowness of the board and the suboptimal position of the down tube for Stand 2 which results in a turn of greater than nine [ninety] degrees having to be undertaken?‑‑‑
A:I agree with all the first parts, that there was a problem there with the combination of the narrowness of the board and the location relative – and the relative location of the down tube to the catching pen gate.
Q:Yes. And that necessitated a turn of greater than – those two factors on their own necessitated a turn of greater than 90 degrees which placed him at significant risk of back injury because it meant that he had to twist his upper body rather than (indistinct)?‑‑‑
A:Yes. I agree with that and it’s a matter of degree of risk and then because there’s a far greater than 90 degree turn on the spot with no stepping, is what happened in this case.”[41]
[41]T486, L29 – T488, L24
76 In cross-examination, Mr Lawrance said, because of the position of the stand and the drag path, a 135-degree turn was required.[42] Mr Lawrance said that Mr Reiersen had to drag the sheep towards the wool room, as depicted in his diagram,[43] before moving it to the shearing stand.[44]
[42]T543-544
[43]PCB 251
[44]T545, L5
77 The fact that there was wool on the floor was one of the factors that led to a shortened arc for Mr Reiersen, as he had to travel over a shorter distance. He needed to undertake a more than 90-degree turn as he had to drag the sheep back into position for shearing. The wool made the turn greater over a shorter distance.
78 Mr Lawrance did not comment upon the precise manner in which Mr Reiersen suffered injury. It is clear from the letter of instructions from the solicitors for the WorkCover Authority,[45] that he was asked to consider the catching pens and analyse the draglines to the shearing stands, amongst other things.[46] When a description of the injury suffered by Mr Reiersen was provided to Mr Lawrance, he described it as an extremely dangerous incident. He said the motion of twisting and lifting a live sheep would put considerable strain upon the shearer’s lower back.
[45]PCB 267-268
[46]PCB 267-268
79 Mr Lawrance said that if he was shearing a sheep, he would not favour Stand 2 because of the narrowness of the shearing board and the distance and turn required to drag the sheep there. He said that the situation with the narrowness of the board could be improved by the downtube being moved 100 millimetres or so towards the wall from which it jutted.
80 Mr Lawrance said that the design of the shed and the way it was operating meant there was a considerably greater degree of physical work and associated risk to Mr Reiersen’s back because of all the twisting and turning, pushing and pulling of the sheep into position.[47] He said that because of the narrowness of the shearing board, the sheep had to be turned over a shorter distance.[48] This meant that Mr Reiersen had to turn his body rather than use his legs.[49]
[47]T557
[48]T557-558
[49]T557-558
81 Mr Myers levelled criticism at Mr Lawrance, and his reports. He said the mere fact that the shearing shed was “suboptimal” did not mean there was any breach of the duty of care. The defendant’s duty was not to provide a perfect system and place of work. He said the eyewitness accounts and opinions of the shearers, Mr Cook and Mr Fittler, should be preferred to the opinion of Mr Lawrance.
82 Although Mr Lawrance was often not forthcoming in the course of his evidence, I was nonetheless impressed by his qualifications and undoubted expertise. He has a practical understanding of shearing, knowledge of shearing shed design and is well versed in the occupational health and safety publications (some of which he authored) available at the time. I prefer his evidence to other witnesses as to the inadequacies of the design of the shed, in particular as to the drag path and narrowness of the shearing board.
83 Mr Reiersen gave evidence about the drag path. He was asked the following:
Q:“Now, I am going to ask you this question. If the shearing shed had of been altered, such that the shearing stands were positioned were downstream such that the shearing machines were fixed closer to the let‑go door on that outer wall?‑‑‑
A:Yep.
Q:Would the uncollected wool that you say you believe was present, would that wool in that position have obstructed your path?‑‑‑
A:It may have caused me to lift slightly but I wouldn’t have had to twist at the same time.
Q:Right?‑‑‑
A:It would have been a lift while pulling in a gentle arc, not a lift and twist.”[50]
[50]T438, L27 – T439, L6
84 Mr Reiersen said it was the lift, in combination with the twisting required by the drag path which caused his injury.[51] He said if the catching pen doors were set further to the right, the arc he had to travel would have been gentler.[52]
[51]T376, L15-17
[52]T94, L1-5
85 In relation to the turn, Mr Reiersen said:
Q:“Do you say that you had to make a sharp turn because the shearing board was too narrow? Is that what you say?‑‑‑
A:I had to make a sharp turn because, ah, the alignment of the down tube was too far to the right of the catching pen door and there was - ah, yeah, that’s why I had to make the sharp turn, the narrowness of the board.
Q:If you hadn’t had to make that sharp turn, would you have decided just to walk around the wool once you felt it?‑‑‑
A:I wouldn’t have felt it because the direction that I was - needed to drag the sheep in to set to the right position for shearing the sheep wouldn’t be there. Did I answer that right? Do you understand that?
Q:I think so?‑‑‑
A:Yeah, yeah, sorry, I’m trying to explain it to you.
Q:Yes, yes. So if the alignment was different and the shearing board was wider, would the wool that you felt not have been a problem because you would have just walked - you would have felt able just to walk around it. Is that correct?‑‑‑
A:I would’ve felt that there wouldn’t - yeah, I would’ve - I would’ve been heading in a - in a different direction, so it wouldn’t have been a problem.”[53]
[53]T254, L21 – T255, L10
86 Homestead contends that if the plaintiff suffered an injury to his back, it occurred while he twisted rather than when he lifted the sheep while walking backwards dragging it to the shearing stand. Mr Clements said that the need for the plaintiff to twist his back arose only as a result of the drag path between the catching pen and Stand 2. Further, Mr Clements submitted that the width of the shearing board and the positioning of shearing Stand 2 gave rise to a need for the plaintiff to make a turn on the shearing board involving twisting his body.
87 It is difficult to get a perspective on the narrowness of the shearing board from the oral evidence of the various witnesses. However, various photographs were tendered[54] and the confines in which the shearers moved and worked may be seen more clearly from Photographs 7, 9 and 11. It is obvious it is a relatively short distance from the catching pen doors (as depicted in Photograph 11) and the shearing stand. In that distance, a shearer was required to walk backwards with the sheep, turning it so as to position it for shearing. As Mr Lawrance said, the position of Stand 2 was such that as he came out of the gate, Mr Reiersen turned the sheep 45 degrees, followed by a tight 135-degree turn, twisting his body to do so, although it was both turns and the narrowness of the shearing board which created the risk of injury. All of this occurred in a narrow area, less than two metres across.
[54]Exhibit 1
88 Mr Myers contends that if the incident occurred at all, it occurred at or near the catching pen gates, the angle Mr Reiersen was required to turn at that point was relatively minor, and nothing like 90 degrees or more as was needed at the stand.[55] He said that the drag path caused Mr Reiersen to make two turns, as explained by Mr Lawrance, and the first of these, around the place where the incident occurred, was not particularly acute and not the much tighter turn he was required to be performed when positioning the sheep at his stand, as was depicted in the offending drag paths referred to in Mr Lawrance’s evidence.[56]
[55]T939
[56]PCB 329
89 The defendants contend I should not accept the evidence of Mr Lawrance, but even if I did, viewed in the light of this first gentle turn, his criticism of the drag path was a matter of centimetres only. That fitted with Mr Lawrance’s description of the drag path as being only “suboptimal”. However, that assertion does not fully explain Mr Lawrance’s evidence. It is clear from the evidence to which I have referred above, that the first turn performed by Mr Reiersen was away from the downtube. He said the first and second turns worked in combination and they were both problematic. While the first turn was not an acute angle, it was over a very short distance. He said the narrowness of the shearing board created a significant problem. The narrowness of the board and the location of the downtube placed Mr Reiersen at a significant risk of back injury because it meant he had to twist his upper body, as he came out of the catching pen gates. That twisting was precisely what Mr Reiersen said he was doing when he felt the crunching sensation.
90 With a correctly positioned stand in relation to the catching pen gates, the drag path would have involved a less acute angle, or a gentler arc, from those gates. That in turn, as Mr Lawrence said, would result in a drag path with reduced twisting. It was not only the 135 degree turn at the stand that was the problem, it was the angle of the path from the gates to the stand which caused the need to twist.
91 To this matrix should be added the fact that Mr Reiersen was lifting, or at least taking the weight of a sheep as he moved backwards. It was thus the combination of the angle which he was forced to take (because of the narrowness of the board), together with the twisting he was undertaking, and the lifting of the sheep which caused injury. While no allegation is levelled at the defendants about the build-up of fleece on the shearing board, it was nevertheless foreseeable that would occur, and a matter which the defendants should have considered. All of these matters made the manoeuvre that Mr Reiersen was undertaking at the time, one which presented a significant risk of injury to his lower spine. That risk in fact transpired.
92 It was Mr Reiersen’s evidence, which I accept, that the turn he made coming out of the catching pen gates and where he lifted the sheep, was sharp because of the alignment of the downtube with the catching pens.[57] Had the alignment been different, he would have walked in a different direction, in a gentle arc and without, or with a reduced, twist. When asked to demonstrate the ideal drag path,[58] Mr Reiersen demonstrated a smooth arc which brought him around 90 degrees by the time he got to the shearing stand. He said the arc should have been a gentle one from the catching pen gates.[59] He said it was the lift combined with the path which caused injury.[60]
In requiring the Plaintiff to follow this drag path, were the Defendants in breach of their duty of care?
[57]T254, L21
[58]T121, L1-18
[59]T249, L27; T438-439
[60]T376, L16
93 The shearing shed at Wiltshire Farm was designed many years before Mr Reiersen’s injury. There was no evidence of any complaints in previous years about its layout, the narrowness of the shearing board or the drag path. There was no evidence of any prior injuries.
94 Shearing is a tough and competitive industry. Shearers are expected to drag heavy, live animals across a narrow shearing board, and use their body to turn them along a drag path to prepare them for shearing.
95 I am satisfied shearing is an industry where shearers were unlikely to make complaints. It was, however, an industry where, given the nature of the work, there was a real and foreseeable risk of a shearer suffering an injury to his lower spine. That risk meant that proper care ought to have been taken to inspect the shed to ensure its design, including the drag path and the width of the board were, from an occupational health and safety perspective, and in the light of available industry publications and standards, made as safe as could reasonably be done for the shearers who worked there.
96 Mr Cook, despite making an inspection of the shed, saw no reason to complain about the board or the drag path. It was as it had been for many years. Mr Fittler did not know of any problems with the shed. The test for breach of duty is what a reasonable company or person in the shoes, respectively, of Mr Cook or Mr Fittler (as employee and agent for the Prassers), would have done in the face of a foreseeable risk of injury. The fact that there had not been any injuries before, nor complaints about the shearing board or the drag path, does not mean they were acting reasonably. While inspections may have been conducted, there was no evidence any inspection by Mr Cook or Mr Fittler considered the alignment of the gates with the shearing stand or the width of the shearing board and the angle of the drag path that may create.
97 It was clear from the evidence of Mr Lawrance, there was literature and knowledge within the shearing industry about the risks of the drag path and narrow shearing boards. While Mr Cook and Mr Fittler may have been aware that some drag paths were inappropriate, they had not gone to the time and effort to educate themselves as to precisely what was a safe drag path and shearing board to avert that risk. It was no excuse that they were ignorant of these risks. Homestead employed shearers to go to shearing sheds throughout the Western District and sometimes interstate. Wiltshire Farm was a substantial operation, given the earnings it made from sheep shearing.
98 The duty upon an employer in the modern workplace is a heavy one. It is a duty which requires an employer to devise, institute and enforce a safe place or work so as to avoid exposing workers to the unnecessary or unreasonable risk of injury. The duty requires affirmative attention to the issue of accident prevention.[61]
[61]Liftronic Pty Ltd v Unver [2001] HCA 24 at paragraph [85]
99 The risk of injury in relation to the shearing board and the drag path could have been significantly reduced without great cost or effort. As Mr Lawrance said, the shearing downtube could have been moved closer to the wall from which it jutted. At the very least, the catching pen gates should have been moved to create a gentler arc. Consideration should have been given to widening the shearing board. All of these steps would have significantly reduced the risk of injury.
100 In my view, the first, and second and third defendants were in breach of the duty they owed the plaintiff to take reasonable care. In Homestead’s case, the duty was to make a thorough inspection, identify problems with the narrowness of the shearing board and the drag path and bring them to the attention of Mr and Mrs Prasser or their farm manager, Mr Fittler. In the farmers’ case, they also should have made an inspection, considered the relevant occupational health and safety guidelines available and taken the necessary steps to improve the layout of the shed.
Was that breach causatively related to injury?
101 There is support for the causative link between Mr Reiersen’s lower back injury, and the dragging and twisting motion he was undertaking at the time, in the opinions of various of the doctors who examined the plaintiff.[62]
[62]Report of Mr Kevin Siu, neurosurgeon – exhibit 11 – PCB 93-94; report of Mr Michael Dooley, orthopaedic surgeon – exhibit D1O – D1CB 22, 24
102 The opinion of Mr Lawrance was that the shearing board was too narrow and Stand 2 was not in good alignment with the catching pen gates. These factors, in conjunction, led to the drag path Mr Reiersen was forced to take. This in turn led to him twisting as he hauled the sheep backwards. Added to the matrix was the lifting of the sheep. These various factors, in combination, led to Mr Reiersen’s significant lower back injury.
103 There were a number of options open to Mr and Mrs Prasser. They included moving the downtube which was attached to a beam, closer to the wall. Further, the catching pen gates could have been moved further to the right, as both Mr Lawrance and Mr Reiersen suggested, to improve the arc of the drag path.
104 Either of those steps could have been taken easily and without great expense. As Mr Reiersen said, had the alignment been improved, it would not have been a problem,[63] and his path would have been a gentler arc, not a lift and a twist.[64]
[63]T254
[64]T438-439
105 Had a proper inspection and assessment of the drag path and the shearing board been undertaken, in light of the literature and information that was available, more significant steps than those outlined above may have been needed. It may have been necessary for there to be some further redesign and change to the layout of the shed. Shearing is very physically demanding work with a clear risk of injury to the spine. Even if a proper review had dictated a more significant change to the layout of the shed, and at further expense, given the risk of injury, that work ought to have been undertaken.
106 Had these various steps been undertaken, I am of the view the risk of spinal injury would have been significantly alleviated.
Were the Defendants in breach of the Regulations?
107 The plaintiff alleges the defendants were in breach of the Regulations, in particular Regulations 3.1.1 and 3.1.2.
108 There is no issue the task Mr Reiersen was undertaking at the time fell within the definition of “hazardous manual handling”. The Regulations clearly apply to Homestead as the plaintiff’s employer. The plaintiff submits, by reason of Regulation 1.1.8, the second and third defendants are “independent contractors” as defined and the obligations upon the employer thus extend to them. Mr Myers did not contend otherwise.
109 Regulation 3.1.1 requires an employer (and, relevantly, the second and third defendants) to, so far as is reasonably practicable, identify any task involving hazardous manual handling. Regulation 3.1.2 provides that once identified, any hazardous manual handling task which gives rise to a risk of musculoskeletal disorder must, so far as is reasonably practicable, be eliminated, or if it cannot be eliminated, must be reduced so far as is reasonably practicable by, relevantly, altering the workplace layout. It is not disputed that breach of these Regulations gives rise to an independent cause of action.
110 The position of the first defendant in relation to the allegations of breach of the Regulations is that it complied with its obligation to undertake an inspection. Mr Cook inspected the shed prior to the shearing commencing in November 2015. Further, it said, in light of the fact that the shed was owned and occupied by the second and third defendants, it was not “reasonably practicable” for the first defendant to alter the workplace layout such as to reduce the risk of musculoskeletal injury.
111 The position of the second and third defendants is that Mr Fittler, the farm manager, carried out an inspection prior to the shearing commencing. In any event, there was nothing wrong with the drag path or the layout of the shed which required alteration.
112 In evidence, Mr Cook said that he inspected the shed before shearing started in November 2015. He said he did not notice any problem with the shed. He had sheared there before on many occasions. He had heard of the Regulations. When asked what was meant by “hazardous manual handling”, he said that the whole shearing industry would come to a standstill if “they decide to come in and apply rules like they do at Bunnings where you can’t lift 20 kilos more”.[65] He said that if something was illegal, it should not be allowed.
[65]T707-708
113 Mr Fittler, the farm manager, knew nothing about the Regulations, about hazardous manual handling or risk assessments.[66] Neither Mr Fittler nor Mr Cook was aware of the Health and Safety in Shearing documents referred to by Mr Lawrance, or the advice contained about appropriate drag paths.
[66]T870
114 When asked the purpose of his inspection, Mr Cook said:
Q:“And what was the purpose of that visit?‑‑‑
A:Probably to go and see Don, the farm manager, to discuss how things were going to go, and to have a quick look through the shed, to make sure everything – the she’d (sic) all tidy and ready for shearing and clean and, you know, everything up to scratch.”[67]
[67]T681, L13-18
115 For shearers to drag a large live beast across a floor and spend long hours bent over shearing it requires strength, stamina and technique. Undoubtedly, the shearing shed at Wiltshire Farm had been designed many years before, and the set up of the shearing board had not been altered or changed. I accept there had been no complaints made prior to November 2015 about the positioning of the catching pens, the shearing stand and the drag path between the two. It was put by Mr Brett that there were examples of the second and third defendants not being prepared to spend money on the shed to improve its function or improve its design. However, the evidence was inconclusive in that regard.
116 I am satisfied, however, that neither the first defendant nor the second and third defendants took any real time or effort to understand the risks of musculoskeletal injury to a shearer who was required to haul sheep across a shearing board which was too narrow, and through a drag path which required the shearer to turn and twist his body at too great an angle. The system had been in place over many years, and they saw no reason to properly assess or change it in light of the risk of injury. For the reasons set forth in relation to breach of duty of care, the set up in the shed created a foreseeable risk of injury. That risk could have been reduced by some relatively simple changes to the shed set up.
117 Regulation 3.1.1 requires employers and others in their position to identify tasks undertaken in a workplace with a view to determining whether they involve hazardous manual handling. It was relatively obvious that the task of hauling a sheep along the drag path whilst twisting the shearer’s body was such a task. Once identified, it was further necessary to eliminate the risk of injury that task entailed or reduce it as far as practicable.
118 While the Regulations do not prescribe how the process of identification of a hazardous manual handling task should be carried out, there must, obviously, be some process of identification. That must involve inspection or at the very least consideration of the task. The Regulations are designed to eliminate or reduce the risk of injury. Self evidently that identification must consider tasks that involve risk of injury and how to avoid it.
119 The inspections carried out by Mr Cook, and Mr Fittler, were not inspections which enabled the identification of the tasks involved in order to meet the requirements of the Regulations. The inspections were, as Mr Cook described, to check everything was tidy and see if it was up to scratch. No real attention was paid to the risk of injury.
120 The reason such an inspection was not undertaken was that while Mr Cook and Mr Fittler may have been aware of drag paths, they were not aware that a drag path with an acute angle posed a real risk of injury as it required a shearer to twist his body. They had not paid attention to the occupational health and safety literature, which was available, and had not considered it was important to find out about its existence. It is one thing to take no steps in relation to tasks which are unlikely to cause injury, it is quite another to fail to take steps in an industry where the work is physical, demanding and with a real risk of a lower back injury.
121 The first defendant’s breach related to a failure to inspect and identify the tasks. It is no defence to say it was not Homestead’s shed and that company could not effect physical changes. It should have been inspected and the problems brought to the Prassers’ attention, with a request to carry out the necessary changes.
122 The breach of the second and third defendants was a failure to identify through inspection, and then take steps to eliminate or reduce the risk. I am satisfied that, for the reasons set out above, each breach was causatively related to the plaintiff’s lower back injury.
Contributory negligence
123 The defendants alleged contributory negligence against the plaintiff. The first defendant alleges contributory negligence on two bases. The first is that it was negligent of the plaintiff to lift a sheep weighing 60 to 70 kilograms, particularly when he was twisting.
124 The plaintiff, himself, admitted that it was careless for him to lift the sheep in the manner described.[68] There were a number of other options open to the plaintiff, including to kick the fleece out of the way, drag the sheep around it or wait for the wool handlers to clear it out of the way. Of the options, lifting the sheep was the riskiest.
[68]T251, L2-6
125 Secondly, says the first defendant, the plaintiff was negligent for failing to watch where he was walking by looking over his shoulder. Had he done so, he would have seen there was fleece in the way and taken appropriate steps to avoid it. The first defendant submits it is appropriate for there to be a reduction of 40 per cent for contributory negligence.
126 The second and third defendants adopt Homestead’s submissions and further say if there was a problem with the drag path, or the shearing board width, the plaintiff failed to complain about it.
127 It is clear from a number of judgments of the High Court that a reasonable employer, in relation to a safe system of work, should take account not only of inadvertence, misjudgement or inattention, but also neglect, carelessness and sometimes even foolishness or misconduct on the part of an employee.[69]
[69]See Liftronic (supra); McLean v Tedman & Anor (1984) 155 CLR 306; Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
128 In dragging the sheep across the board along the drag path, Mr Reiersen was doing no more than following the system of work which had been established, in the shearing shed with its drag path and narrow board. It should be recalled that he was shearing a sheep every 30 or 40 seconds. It was a fast and repetitive task. There was little time to consider options if there was wool on the floor, and little time to look for alternatives.
129 In dragging the sheep backwards – a 60 to 70-kilogram live animal – it is unreasonable to expect he would look over his shoulder to ensure there was no wool around him, or to take a path with a smoother arc to place the sheep at the shearing stand.
130 Further, it was not for Mr Reiersen to make and assessment and complain about the system.
131 In the circumstances, I am satisfied there was no contributory negligence on the part of Mr Reiersen.
Contribution between the Defendants
132 In determining the appropriate contribution of each of the respective defendants, the Court should have regard to the extent to which each has departed from the standard of care expected in the circumstances.
133 Homestead submits 80 per cent of responsibility ought be apportioned to the second and third defendants. Mr Clements emphasised the plaintiff suffered injury when he was twisting which was necessitated by the width of the shearing board, and the inappropriate drag path. He emphasised that any alteration to these aspects of the task was solely within the control of Mr and Mrs Prasser.
134 Further, the first defendant, which came into legal existence in only March 2015, did not have the opportunity for any input into the design or construction of the shearing shed, which had been there for many years.
135 Mr Clements said that Mr and Mrs Prasser were conducting a substantial wool growing or sheep shearing business evidenced by the size of the flock, around 4,000, and the return for the fleece in the 2016 year, almost $70,000. Given the scale of the enterprise, it was important Mr and Mrs Prasser, and those they employed, were familiar with current information and industry standards as to occupational health and safety.
136 Mr Clements noted that Homestead was contracted to provide shearers and associated workers to undertake the annual shearing at Wiltshire Farm. It was not retained to provide any advice as to the safety or appropriateness of the system of work there, or the layout of the shed.
137 Mr Myers, for Mr and Mrs Prasser, emphasised that the real expertise as to the manner in which sheep were to be shorn, lay with Homestead as an experienced shearing contractor. In evidence, Mr Cook said that Homestead was paid on a “full contract” basis and the manner in which the shearers worked and the way they went about shearing the sheep was a matter for them and Homestead, and not the Prassers. He said that the real expertise in relation to the drag path and the layout of the shed lay with Homestead as it was the one who placed workers into the shed to carry out the work. Mr and Mrs Prasser had little, if any, say about the way the work was to be carried out.
138 In the course of cross-examination of Mr Lawrance, Mr Myers put that the real expertise around a shearing operation lay with the contractor, Homestead. Mr Lawrance responded that it was a matter for both the farmer and the contractor to examine and assess a shearing shed with a view to occupational health and safety issues. He said he would expect a farmer, in particular one in an enterprise as significant at Wiltshire Farm, to have a working knowledge of the shearing operation being conducted. While a farmer might obtain information from a shearing contractor, it was also readily available within the industry. Mr Lawrance said that shearing had changed significantly over the years with increased flock sizes and changes in the quality of wool. It was important that all parties involved in the shearing process keep abreast of those changes.
139 In my assessment, Homestead bore an onerous duty to take positive steps in accident prevention in relation to its employee, Mr Reiersen. I further accept Homestead possessed particular expertise as to the way the shearers operated to shear sheep and the layout of a shearing shed to best achieve a system which enabled the shearers to work quickly and effectively, and in a manner to reduce the risk of injury. That expertise was greater than that possessed by the farmers.
140 While I accept Mr Cook was familiar with the shed, and made an inspection prior to the shearing contract started in November 2015, that inspection was cursory, and did not carefully examine matters of relevance, including the drag path and the width of the shearing board. While Homestead did not have the capacity to undertake repairs which may have alleviated the risk of injury, nonetheless, it had the capacity to raise these matters with Mr Fittler, or Mr and Mrs Prasser, and press for a change in the layout of the shed. That did not occur.
141 Nonetheless, the shed was owned by Mr and Mrs Prasser. They conducted a significant shearing operation at Wiltshire Farm. There was no evidence that they, or anyone on their behalf, had taken any steps to review the layout of the shed, in particular, the width of the shearing board, the drag path, the catching pens and the downtubes. If any repairs or changes were to be effected to the physical layout, it was a matter for them to do so. It was no excuse to say that the shed had been there for many years, operating efficiently and without report of injury. More needed to be done, particularly in the light of information available at the time.
142 Bearing all these matters in mind, in my view, the responsibility for the injury suffered by Mr Reiersen should be shared equally between the first defendant on the one hand and the second and third on the other.
Quantum
Pain and Suffering
143 Any assessment of the plaintiff’s damages should take account of Mr Reiersen’s pre-existing back condition and the pain and restrictions he suffered. The defendants are liable to compensate the plaintiff only to the extent their negligence caused injury.
144 Not surprisingly, given the physical demands of shearing, the plaintiff had pre-existing pain and restriction in his lower spine. He said it was “always there”, but never stopped him working.[70] He had received treatment from a range of health practitioners, chiropractors, physiotherapists and masseurs over twenty years.
[70]T115, L22
145 The clinical notes of the Tasker Chiropractic Clinic show, in 2009, Mr Reiersen was suffering pain in his low back.[71] He was referred for x-rays in November 2014 and prescribed anti-inflammatory and pain-relieving medication. According to an MRI report of the lumbar spine of December 2015, Mr Reiersen had complained of right-sided sciatica for more than six months. The report referred to multi-level disc bulging with a disc protrusion at L5-S1 “impinging the budding right S1 nerve root at its lateral recess”. [72]
[71]D1CB 31-32
[72]D1CB 7
146 According to the clinical notes of Mr Reiersen’s treating general practitioner, Dr Dan Wijeratne, as at 8 December 2015, Mr Reiersen had ongoing chronic low back and right hip pain for more than six months.
147 Several weeks before the incident, on 13 November 2015, Mr Reiersen went to see Dr Parente, the chiropractor, complaining of low back pain which he said had been ongoing for twelve months. The pain was said to be 7 out of 10 when he was shearing. There was also a complaint of stiffness and tightness in the right leg.
148 In his evidence, Mr Reiersen described the pain he felt, both in his low back and into his right leg at and shortly after the time of the incident as a different pain to which he had experienced before. His general practitioner referred him to a neurosurgeon, Dr Caroline Tan, who performed a microdiscectomy at the L5-S1 level of his spine on 28 July 2016. At Dr Tan’s recommendation, Mr Reiersen undertook a course of physiotherapy and Pilates. He now no longer has any physiotherapy. He self manages his back condition with an exercise program for 20 minutes every morning. He has taken medication in the past, including Palexia and Celebrex, but now takes over-the-counter pain relief. He accepted that prior to the incident, he had more or less constant pain in his back but was able to live with it and continue working. Since the incident, the pain has been different, including a tightness and a burning.
149 Mr Reiersen has had a number of flare ups of back pain. He can sit for 20 minutes and stand for 10. He can drive but prefers to drive a larger vehicle. He said he was not as active with his children as he had been before. His current problems are largely back pain with occasional leg pain.
150 In her report of 25 September 2017, given Mr Reiersen’s complaint of ongoing pain, Dr Tan considered he would be a good candidate for anterior lumbar fusion surgery. Mr Reiersen decided not to proceed with that surgery, although it is still under consideration.[73]
[73]T127, L28
151 Mr Kevin Siu, neurosurgeon, considered a fusion “may have some merits”.[74] He considered Mr Reiersen was suffering from “failed back surgery syndrome”.[75]
[74]PCB 94
[75]PCB 94
152 The pain in his lower back, and referred pain, particularly to his right leg, has continued to the present time. There is no suggestion in the various medical reports that pain and restriction will reduce to any significant extent, save with the possibility of fusion surgery, the outcome of which is uncertain.
153 I accept Mr Reiersen was an active man, taking pride in his work as a shearer, which he had undertaken from a very young age. He was also involved in the pursuits with his family and a range of domestic and recreational activities.
154 I was impressed with the evidence of his wife, Mrs Kirstie Reiersen. Her evidence was measured and believable. She said her husband, before the injury, was a very social person and involved in a range of projects around the house. He enjoyed outdoor activities, including hunting, motorbike riding and home maintenance. He helped with the domestic chores and was involved in the children’s activities. Before the incident, she could not recall a single day when he missed any work, save on one occasion when he had to go to hospital for an unrelated problem. She said that since November 2015, from her observations, she had never seen him without pain. He had become moody, irritable and depressed. He was unable to help her with her horticultural business. They did not socialise as before.
155 While I accept that Mr Reiersen suffered ongoing pain and restriction in his lower spine, and referred pain on occasions to his right leg, I am satisfied that the incident of November 2015 caused a significant increase in that pain, including a prolapse of the L5-S1 disc. That incident led to surgery, and the possibility of further surgery at some time in the future. It is has left him with a significantly debilitated back which has affected a range of domestic, recreational and social activities. I accept it has led to some psychological symptoms.
156 The measure of the difference between the pain he suffered before and then after the injury is the fact that I accept he took no time off work prior to the incident whereas, save for a week or two when he continued working, he has not worked since. The fact that he was able to continue working with his pre-existing back pain in a physically demanding industry like shearing, is a measure of the affect upon him of the injury of November 2015.
157 I assess pain and suffering damages in the sum of $250,000.
Economic loss damages
158 Mr Reiersen has not worked as a shearer since 7 December 2015. He has applied for many jobs, including as a Coca Cola representative, and a tractor salesman. He has applied for work as a wool store worker in training shearers, and as a chemical salesperson. He has not been able to obtain any employment. He has never worked in an administrative position or at a desk before. His reading and writing skills are not good.
159 Mr Reiersen believes there is some work he could do if only he could find it. He was not sure whether he could work as a shearing contractor, although he had done that work in New Zealand. He has some ability with computers.
160 Dr Tan, the treating surgeon, said Mr Reiersen would not be able to perform heavy manual or physical work or work which involved walking around for more than 15 minutes. She said he would not have the qualifications or experience to engage in many types of work, although may be able to retrain for sedentary work, although may find difficulty even with that because of his low back pain.
161 Mr Thomas Kossmann, consultant orthopaedic surgeon, said Mr Reiersen had no pre-injury work capacity, nor would he be able to return to any form of physical work. He said Mr Reiersen was incapacitated for work and that it would be difficult for him to return to any employment as long as he was suffering regular flare ups of back pain. He provided a range of restrictions, including lifting items of no more than 5 kilograms.
162 Mr Kevin Siu, neurosurgeon, was of the opinion Mr Reiersen had no current work capacity.
163 Dr Amanda Sillcock, occupational physician, recommended a range of restrictions in any work Mr Reiersen might undertake, and that he was capable of performing work within those restrictions.
164 Mr Bill Radley, psychologist and vocational assessment specialist, considered a range of occupations which had been suggested as suitable for Mr Reiersen. He concluded Mr Reiersen had no current work capacity for any alternative employment and that that was unlikely to change in the future. He further thought Mr Reiersen was incapable of any occupational retraining.
165 On behalf of the defendants, Mr Reiersen was examined by Mr Michael Dooley, orthopaedic specialist, in 2019 and 2020. While Mr Dooley accepted fusion surgery may alleviate Mr Reiersen’s back pain, he thought that was a possibility rather than a probability. Mr Dooley’s opinion is significant as he was the only practitioner provided with the clinical notes in the period before the incident setting out Mr Reiersen’s complaints of lower back pain, and some sciatic pain. Mr Dooley was of the view that in the November incident, Mr Reiersen suffered a lumbosacral disc prolapse, although because of his pre-injury problems, considered Mr Reiersen had significant underlying degenerative disc disease at the lumbosacral level, before injury. Mr Dooley said it was likely that the cumulative effects of shearing over thirty years had contributed to the lumbar spinal degeneration.
166 Mr Dooley thought it was unlikely Mr Reiersen would have been able to maintain long-term employment as a shearer given he had complained of right-sided lower back pain and tightness in his hamstrings for a period of twelve months before the incident, grading the pain as 7 out of 10 while working. He said many shearers were unable to work beyond fifty years of age.
167 Mr Reiersen’s evidence was that with his careful technique, he hoped and expected to be able to work well into his sixties. He knew other shearers of that age who were still working.
168 Mr Brett contends that the appropriate pre-injury earnings figure upon which economic loss should be based is $1,517.00 net per week, which is the average of Mr Reiersen’s gross earnings in the three-year period to June 2015, less tax. He submitted Mr Reiersen would have worked to age sixty-seven and that there should be an allowance for vicissitudes of no more than 30 per cent, which is higher than would otherwise be the case, based upon Mr Reiersen’s past medical history, and the physical demands of shearing work.
169 Mr Clements, on behalf of Homestead, relied upon the opinion of Mr Dooley, and submitted, given Mr Reiersen’s established past clinical history, the chances of him working for another five years – that is, to November 2020 – were no more than 50 per cent. Therefore, said Mr Clements, there should be a discount of 50 per cent in respect of Mr Reiersen’s past economic loss. He said there should be no award for future economic loss given Dr Sillcock was of the opinion that Mr Reiersen was capable of performing suitable employment. He himself had said he thought he had a capacity for some employment.
170 Mr Myers, for the Prassers, agreed that past economic loss should be reduced by 50 per cent, based upon the opinion of Mr Dooley. He further submitted there should be no allowance for future economic loss, as Mr Reiersen would not have worked as a shearer beyond 2020, but if he did, it would only be for two more years. He said there should be a reduction of 50 per cent for vicissitudes.
171 The issues to be determined in considering economic loss are the nature and extent of Mr Reiersen’s pre-existing lower back condition, for how long he would have continued to work as a shearer, his current work capacity and whether, with his injury, he has the prospects of obtaining employment into the future.
172 There is no doubt Mr Reiersen could not return to his work as a shearer, nor to any other physical or other labouring work. Mr Reiersen was forty-five at the time of the incident and is now fifty. I accept Mr Brett’s calculation of Mr Reiersen’s pre-injury earning capacity as $1,517.00 net per week. To this should be added an appropriate calculation for superannuation.
173 Turning to the first issue, that is, to what age Mr Reiersen would have continued working, the medical opinion of most assistance is that of Mr Dooley. He was provided with Mr Reiersen’s significant past medical history and has experience in treating shearers. I accept his opinion that, given the extent of Mr Reiersen’s degenerative lumbar disc disease, as evidenced by the various clinical notes, it was unlikely he would continue shearing to age sixty-five or beyond, even accepting he was a strong man with a good technique.
174 On the other hand, I accept Mr Reiersen was stoical, hardworking and keen to provide for his young family. I bear in mind that he had no time off work for his back condition until November 2015.
175 Doing the best I can from the evidence, I am of the view Mr Reiersen would, absent injury, have continued working as a shearer until fifty-five years of age, or 2025. The clinical notes would indicate that for about twelve months prior to November 2015, Mr Reiersen was suffering lower back pain, including on occasions referred pain into his buttock or leg. I assess, absent injury, he would have put up with considerable pain and limitation before submitting to the lumbar disc disease.
176 In respect of his loss of wages to date – that is from 2015 to 2020 – I would allow a reduction for vicissitudes of 15 per cent to take account on the one hand, the prospect of increases in his wage, and on the other, the risk that his back condition would have ended his shearing employment at an earlier time.
177 From age fifty-five and following, I am of the view that absent his injury in November 2015, Mr Reiersen’s back condition, by age fifty-five, would have been such as to make it unlikely he would have been able to return to shearing, or in fact to any form of employment for which he was suited by training and experience.
178 Mr Reiersen’s present position is that his only real training and experience is in the area of shearing or in some shearing-related industry. At one point at an earlier time, he attempted to start a business involving motorcycle riding tours in New Zealand, but the business did not get off the ground. He has only modest reading and writing skills and although he has applied for a range of jobs, he has got none. It should be borne in mind he is living and has been working in Country Victoria where there are limited job opportunities. I am of the view that at the present time, he has no effective work capacity, and that is unlikely to change in the future.
179 Absent his injury, he would have continued working until fifty-five, by which time it is probable his back condition would have prevented him from working and he would face much the same restrictions in employment opportunities as he now faces.
180 In my assessment, there should be an allowance for vicissitudes from age fifty to age fifty-five of 25 per cent. That figure takes account, on the one hand, of negative vicissitudes, including that, absent injury, Mr Reiersen’s working life would have concluded before age fifty-five or that, for some other reason, he would have been unable to continue shearing. It also takes account of positive vicissitudes, including that his wage would have increased, and that, absent injury, he may have worked beyond age fifty-five.
181 I shall leave it to the parties to make the precise arithmetic calculations as to past and future loss of earnings. There should be an appropriate provision for superannuation.
182 I shall hear from the parties as to the orders to be made.
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