Ritchie James Edward Lowe v Greenmountain Food Processing Pty Ltd - [2024] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Ritchie James Edward Lowe v Greenmountain Food Processing Pty Ltd [2024] QDC 204

PARTIES:

RITCHIE JAMES EDWARD LOWE

(plaintiff)

v

GREENMOUNTAIN FOOD PROCESSING PTY LTD (ABN 46603 161 100)

(defendant)

FILE NO:
ID24/2020

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Ipswich

DELIVERED ON:

29 November 2024

DELIVERED AT:

Ipswich

HEARING DATE:

1, 2, 3, 4 August 2022 and 17 February 2023

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

1. Claim dismissed

CATCHWORDS:

WORKERS COMPENSATION – LIABILITY TO PAY COMPENSATION – LIABILITY OF EMPLOYER – whether the defendant is liable for the plaintiff’s injuries – where the defendant accepts they owe a duty to exercise reasonable care to guard against foreseeable risks - where the plaintiff has failed to make out a case of liability against the defendant

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – GENERALLY – assessment of common law damages under Part 9 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)

LEGISLATION:

Workers Compensation and Rehabilitation Act2003 (Qld) ss 306O, 306P, sch 9

Workers Compensation and Rehabilitation regulations 2014 (Qld) sch 8

CASES:

Hobbs & Anor v Oil Drive [2008] QSC 45.

Fox v Wood (1981) 148 CLR 438

COUNSEL:
R D Green for the plaintiff

B Munro for the defendant

SOLICITORS:
Smiths Lawyers for the plaintiff

BT Lawyers for the defendant

Summary

In the course of performing meat processing work on the morning of 1 April 2019, when aged 23, the plaintiff’s right index finger came into contact with the blade of a bandsaw he was using. He suffered significant injury; the partial amputation of his finger. Notwithstanding the seriousness of his injury, he made a reasonably good recovery and was certified as being able to perform suitable duties from 27 April 2019. His treating orthopaedic surgeon certified him as fit to return to his usual employment from 3 September 2019. For reasons which remain unsatisfactorily explained, he did not do so. He did, however, subsequently take up much more remunerative employment. He also later returned to playing A Grade Rugby League with considerable success.
He brings this proceeding against the defendant, his former employer, alleging a multiplicity of breaches of duties owed to him as an employee. Notwithstanding his certified fitness for his former work, his return to other more highly remunerative work and his demonstrated footballing ability as a playmaker repeatedly using his injured finger,[1] he claims past economic loss in the sum of $79,200 and future loss of earning capacity of $460,000. Those claims are entirely unmaintainable on the evidence.
[1]This ability was demonstrated in video footage of the plaintiff playing rugby league, and his concessions in evidence that, as a halfback, he was continually involved in the game; catching, passing, tackling etc.
However, for reasons which follow, the plaintiff has failed to make out a case of liability against the defendant. The defendant accepts it owed him a duty to exercise reasonable care to guard him against foreseeable risks of injury. It concedes that given the need for the plaintiff, or any worker in his position, to manually pass meat being processed through a bandsaw in a way which, necessarily, brings the worker’s fingers in close proximity of an unguarded blade, the risk of an injury of this kind is foreseeable and is not insignificant.
The plaintiff has, however, failed to prove any breaches of duty which he alleges. Indeed, the particular risks and the measures which he alleges should have been taken to address them proved to be something of a moving feast with the matters articulated in the plaintiff’s final submissions bearing little resemblance to those pleaded and particularised. Of those that were pleaded and particularised some were formally abandoned, no doubt because there was no evidentiary case to support them. Others went unaddressed, probably for the same reason, and others were contradicted or disproven by the plaintiff’s own evidence.
By these observations I do not mean to speak perjoratively of the plaintiff’s case. Rather, it may simply be that they demonstrate why it is that not all workplace incidents and the resultant injuries can be sheeted home to an employer’s negligence, no matter how the worker may perceive events or rationalise how they must have come about, or how broadly a case may be pleaded.
Liability
An analysis of the reasons why the plaintiff has failed to make out a case of liability can conveniently commence with the evolving nature of his case. To that end, it is convenient to start with how his case was pleaded, particularised and, ultimately, addressed upon.
In the plaintiff’s further amended Statement of Claim,[2] the alleged duties were pleaded, in very general terms, as follows:
[2]Court document no. 56 at para 3.
“3.At all times material to the proceeding it was the duty of the defendant to:
(a)take all reasonable precautions for the safety of the plaintiff with respect to the provision of plant or equipment for the plaintiff’s use in the course of his employment with the defendant;
(b)take reasonable care to ensure the plaintiff was not exposed to a risk of injury whilst performing his work for the defendant by among other things undertaking appropriate risk identification assessments;
(c)take reasonable care to ensure that the plaintiff was not at risk of personal injury in undertaking his duties in the ordinary course of his employment;
(d)take reasonable care to ensure that the duties to which the plaintiff was directed, and the manner in which he was required to perform such duties, was safe;
(e)take reasonable care to ensure the plaintiff was not exposed to risk of injury in the system of work adopted for the purpose of fulfilling his contract of employment, particularly regarding the period of time he spent undertaking work on the bandsaw;
(f)take reasonable care to ensure that the plaintiff was provided with appropriate plant and equipment for the conduct of his duties with the defendant in the course of his employment;
(g)take reasonable care to ensure that the manner in which the plaintiff undertook his duties and the equipment provided to him was safe for his use;
(h)take reasonable care to ensure that the plaintiff was provided appropriate training and instruction for the duties to which he was directed;
(i)take reasonable care to ensure the plaintiff was provided appropriate instruction in relation to the duties he was directed to perform and the equipment he was required to use in performing such duties;
(j)take reasonable care to ensure that the plaintiff was provided with proper or adequate supervision while undertaking work duties on the Thompson bandsaw.”
The facts and circumstances by which he came to be injured are pleaded as follows:
“5.On or about 1 April 2019, at the premises from which the plaintiff undertook his employment duties with the defendant in the State of Queensland;
(a)The plaintiff was tasked with cutting a rack of veal ribs using a Thompson bandsaw;
(b)The plaintiff’s required to manually feed the rack of ribs towards the cutting edge of the blade and apply pressure to the meat he was cutting for the bandsaw blade to cut through the ribs;
(ba)   the veal rib rack being cut by the plaintiff was smaller in size than the rib racks he had been trained to cut using the bandsaw;
(bb) because of the small size of the rib racks, the plaintiff was necessarily required to bring his hands and fingers in close proximity to the cutting edge of the blade of the Thompson bandsaw to comply with his training and instruction in using the Thompson bandsaw to cut rib racks;
(bc)   in the premises of the matters set forth in paragraphs 5(a) to 5(bb) hereof, the plaintiff was not able to keep his hands well clear of the cutting blade of the bandsaw, but consistent with his most immediate instruction from the employer’s servants or agents, undertook the task of cutting the veal rib racks as best as he was able;
(c)     while the plaintiff was cutting the veal rack of ribs, the rack of ribs moved as a result of slipping in the plaintiff’s hands and on the cutting guide’s surface;
(d)    when the ribs moved as described to [sic] in paragraph 5(c) hereof, the plaintiff’s right index finger came into contact with the moving blade of the bandsaw;
(e)     when the plaintiff’s right index finger came into contact with the moving blade of the bandsaw, he suffered personal injury.”[3]
[1][3]       Ibid, para 5.
The defendant’s negligence is pleaded as the cause of his injuries and particularised as follows:
“7. The personal injuries and consequential loss and damage were caused by the negligence of the Defendant or by its servants or agents.
Particulars
(a) Failing to take any or any adequate precautions for the Plaintiff whilst he was engaged upon his said employment, regarding training and instructing the Plaintiff to take measures to protect against the risk of fingers coming into contact with the Bandsaw;
(b) Failing to provide and maintain for the Plaintiff a workstation that permitted him to attend to his duties including cutting meat with the blade of a Bandsaw without a risk of personal injury;
(c) Failing to provide or implement and maintain a proper and safe system of work for the Plaintiff whilst he was engaged upon his said employment;
(d) Failing to carry out any or any adequate risk identification or risk assessment with respect to the tasks to be performed by the Plaintiff in the course of his employment when cutting rib racks with the Bandsaw;
(e) Failing to provide appropriate plant and equipment for the Plaintiff's use in the course of his employment;
(f) Failing to implement a safe system of work;
(g) Failing to develop a risk management approach by implementing systems or devices that would have resulted in safer plant and equipment for the Plaintiff's use at the Premises;
(h) Failing to provide any or adequate training or instruction with respect to cutting the rib racks with the Bandsaw with particular reference to the risk of the rib rack moving in the course of a cut;
(i) Failing to provide a workstation that permitted the Plaintiff to undertake his duties in cutting rib racks without an unreasonable risk of sustaining personal injury through contact with the bandsaw;
(j) Failing to provide any or adequate supervision of the Plaintiff while undertaking rib rack cuts with the Bandsaw”
Lengthy further and better particulars were provided of the allegations upon which the defendant’s negligence was asserted.[4]
[4]Court document no. 40.
“5. In response to paragraph 5 of the Defendant's Request concerning paragraph 7(a)(i):
(a) In relation to the period of time that the Plaintiff ought to have spent on the Thompson bandsaw which should have been the subject of training is:
i. that period up to when his concentration or attention could not remain focused on the task of operating the Thompson band saw safely or in accordance with instruction or training, with particular attention to the behaviours or mannerisms consistent with not being able to maintain concentration or attention in the operation of the band saw;
ii. the period of time referable to the safe operation of the band saw including by reference to the material being cut or the risks associated with such operation of the machine;

(b) The failure to provide such training caused or contributed to the incident on 1 April 2019 (“the incident”) by reason of the fact that the Plaintiff:
i. Did not assess his capacity to undertake such duties safely, which if assessed he would have removed himself from the operation of the machine;
ii. The Plaintiff was not able to assess the risks relating to the operation of the band saw in performing the cuts on the portions of meat that were smaller and slippery in so far as the Plaintiff was concerned, which risks if assessed by the Plaintiff would have enabled him to make a decision as to how to deal with such risks;
iii. The Plaintiff did not consider the risks presented to him by reference to the weight, size, presentation or slipperiness of the rib racks he was cutting when the incident occurred, where if such risks had been assessed, the Plaintiff would have been able to respond to such risks;
(c) In relation to the indicators that the Plaintiff was at risk of injury if continuing to undertake work on the Thompson bandsaw which ought to have been the subject of training:
i. Falling concentration or lack of attention to safety needs in the operation of the band saw;
ii. Variations in foot positioning or stance;
iii. Wandering focus of vision or sight;
iv. Intrusive thoughts unrelated to the task at hand in operating the band saw;
v. The observation of difficulties created by the portions of meat being cut on the bandsaw including their size, weight and slipperiness;
vi. The stability of the cutting band as it passed through the cutting plane;
vii. The positioning of the hands by reference to the cutting edge of the band saw;
viii. The production requirements relevant to the speed at which cuts of the rib racks were to be repeated by band saw operators such as the Plaintiff;

(d) The failure to provide such further training caused or contributed to the incident by:
i. Not preparing the Plaintiff properly to asses the risks associated with the operation of a dangerous piece of equipment such that he could take action to alleviate such risks;
ii. Not preparing the Plaintiff to properly monitor his own conduct in the operation of a dangerous piece of equipment such that he could identify the risks to his personal safety in the operation of a dangerous piece of equipment;
iii. Not preparing the Plaintiff to deal with production requirements such that he was unable to undertake the relevant tasks safely while maintaining production levels;
iv. Not preparing the Plaintiff with options, in circumstances where he was unable to continue to operate the machine safely for any reason, in relation to production requirements;
v. Not preparing the Plaintiff with the manner in which safety in the operation of the equipment could be prioritised by reference to all other factors impacting upon the Plaintiff's work duties.”

A second, also lengthy, set of further and better particulars were provided.[5]
[5]Court document no. 57.
“1. In response to paragraph 1 of the Defendant’s Request for Further and Better Particulars of the Statement of Claim (the “Request”) regarding paragraph 7(a):
(a) The Plaintiff says that the further training that he ought to have been provided by the Defendant to protect him against the risk of fingers coming into contact with the bandsaw includes:
i. Training or instruction as to the appropriate period of time spent operating the bandsaw in circumstances where the work was repetitive in operating the bandsaw;
ii. Training or instruction as to the proper and safe method of cutting smaller cuts of meat such as that he was cutting at the time of the incident;
iii. Training or instruction to cease operating the bandsaw if the Plaintiff felt that he was unable to continue operating it in a fashion that enabled him to keep up with the production rate for the production line in which he was working at the time he sustained his injury;
iv. Training or instruction in relation to the use of push sticks or other devices to assist the Plaintiff maintain production without permitting his hands to become too close to the cutting blade of the bandsaw;
v. Training or instruction in relation to assessing his ability to undertake the cuts on smaller racks of ribs safely and requesting to be placed on another machine with blade stop functions;
vi. Training or instruction in relation to the proper use and placement of the blade guide or blade guard to suit the size of the rib rack being cut by the Plaintiff at the time he sustained his injury;
(b) The Defendant’s failure to provide the training or instruction referred to in paragraph 1(a) hereof caused or contributed to the Incident in that:
i. The Plaintiff was required to remain on the machine without adequate and appropriate rotation or adequate and appropriate breaks, and;
A. Had the Plaintiff been able to take adequate or appropriate breaks or be adequately or appropriately rotated from the operation of the machine his risk of injury would have been removed or minimised in the operation of the bandsaw;
B. Had the Plaintiff been able to take adequate or appropriate breaks or be adequately or appropriately rotated from the bandsaw operation with the known risks to person while cutting small rib racks the risk of injury could have been removed or minimised;
ii. The Plaintiff was unable to operate the machine he was allocated to for the purpose of cutting the rib racks that were smaller in size so that his fingers did not come into close proximity to the cutting blade of the bandsaw, and:
A. Had the Plaintiff been instructed or trained in safely operating the bandsaw while cutting the smaller cuts of rib racks his fingers would not have come into such proximity to the cutting blade of the bandsaw;
B. Had the Plaintiff been provided instruction or training in relation to the safe operation of the bandsaw while cutting the smaller sized rib racks he would have been able to undertake the work without permitting his fingers to come into such close proximity to the cutting blade of the bandsaw;
C. Had the Plaintiff been provided training or instruction in relation to cutting the smaller sized rib racks he would not have suffered the injury he sustained;
iii. The Plaintiff was unable to assess his exposure to risks to personal safety because had the Plaintiff been provided with training or instruction in relation to such matters as referred to in paragraph 1(a)(iv) he would have been able to make decision reflected in paragraphs 1(b)(i) to 1(b)(ii) hereof, which paragraphs the P1aintiff repeats and relies upon;
iv. The Plaintiff was not trained in, instructed about or made aware of the availability of push sticks or other devices to assist the Plaintiff maintain production while cutting smaller rib racks without permitting his hands to come into close proximity to the cutting blade of the bandsaw when the incident occurred, and;
A. Had the Plaintiff been so instructed or trained he would have been able to utilise such implements to maintain production without permitting his fingers to come into such close proximity to the cutting blade of the bandsaw;
B. Had the Plaintiff been so instructed or trained he would have been able to maintain production rates without permitting his hands or fingers to come into such close proximity to the cutting blade of the bandsaw while maintaining production rates;
C. Had the Plaintiff been so instructed or trained he would have been able to make use of such implements or devices to undertake his duties safely;
v. The Plaintiff was unable to assess his ability to operate the bandsaw machine safely in performing cuts of the smaller rib racks, and;
A. Had the Plaintiff been able to properly assess his ability to operate the bandsaw machine safely he would have been able to make decisions about his continued operation of the bandsaw;
B. Had the Plaintiff been able to properly assess his ability to operate the bandsaw safely he would have been able to request moving to a bladestop machine;
C. Had the Plaintiff been able to properly assess his ability to operate the bandsaw safely he would have been able to request moving to a bladestop machine which would have enabled the Defendant to make decisions about the safety of the Plaintiff consistent with him not being exposed to a risk of personal injury while cutting small rib racks;
vi. The Plaintiff was not trained or instructed in the proper placement or alignment of the blade guide and was not instructed or trained in the use of a blade guard, and:
A. Had the Plaintiff been able so trained or instructed he would have been able to adjust the blade guide or the blade guard so as to enable him to undertake his tasks in the continued operation of the bandsaw in cutting the smaller rib racks without risk of personal injury;
B. Had the Plaintiff been so instructed or trained, he would have been aware of steps he could take to make his duties safe by enabling him to undertake the tasks without his fingers coming into such proximity to the cutting blade of the bandsaw;
C. Had the Plaintiff been so instructed or trained, any request or attempt by the Plaintiff to adjust the saw guide or a safety guard would have put the Defendant in a better position to manage the risk of personal injury to the Plaintiff in relation to the use of a machine it knew was operated with risk of personal injury.
2.   In response to paragraph 2 of the Request regarding paragraph 7(b) of the Statement of Claim:
(a) The Plaintiff alleges that the workstation he ought to have been provided was one where:
i. The Plaintiff was operating a bandsaw with a bladestop function;
ii. The Plaintiff was aware of the importance of adjusting the blade guide;
iii. The Plaintiff was aware of and able to use a blade guard;
(b) The Defendant’s failure to provide a workstation as outlined in paragraph 2(a) hereof caused or contributed to the Incident as:
i. The Plaintiff would not have suffered the injury or an injury with the seriousness he has experienced if he had been operating a machine with bladestop function;
ii. The Plaintiff would have been able to maintain production rates without risk of personal injury, if he was provided a workstation with adjustment to the blade guide of blade guards;
iii. The Plaintiff would have been put into a position to assess his concentration, ability, competence or attention in relation to undertaking the tasks of cutting the smaller rib racks had he been provided a workstation as outlined in paragraph 2(a) hereof;
iv. The Defendant would have been in a better position to assess the safety of the Plaintiff in undertaking the tasks he was directed to when the Incident occurred had he been provided with a workstation as outlined in paragraph 2(a) hereof.
3.   In response to paragraphs 3 of the Request regarding paragraph 7(e) of the Plaintiff’s Statement of Claim, the Plaintiff says that:
(a) The plant and equipment that ought to have been provided includes:
i. The matters set forth in paragraph 2 hereof which paragraph the Plaintiff repeats and relies upon;
ii. Push sticks or other similar devices ought to have been provided;
iii. A blade guard should have been provided for the machine that was being operated by the Plaintiff at the time of the Incident;
(b) The Defendant’s failure to provide the plant and equipment referred to in paragraph 3(a) hereof caused or contributed to the incident as:
i. A workstation as referred to in paragraph 2 hereof would have:
A. Enabled the Defendant to better assess the risks to the Plaintiff’s person in operating the machine by any activation of the bladestop function;
B. Enabled the Plaintiff to operate a bandsaw without the risk of personal injury or would have minimised the risk of personal injury;
ii. Push sticks or other such similar devices would have enabled the Plaintiff to operate the bandsaw without his fingers coming into such proximity to the cutting edge of the bandsaw;
iii. The positioning of a blade guard would have enabled the Plaintiff to undertake his work tasks without his fingers coming into such close proximity to the cutting edge of the bandsaw.
4.   In response to paragraph 4 of the Request regarding paragraph 7(g) of the Plaintiff’s Statement of Claim, the Plaintiff:
(a) Says that the systems the Defendant failed to implement include:
i. The training or instruction referred to in paragraph 1 hereof, which paragraph the Plaintiff repeats and relies upon;
ii. A system of work that provided for shorter periods of operation of such machines as the bandsaw, or alternatively greater rotation of such duties, for workers such as the Plaintiff given his experience and training;
iii. A system that provided for monitoring or assessment of concentration, attention, competence, or confidence on the part of machine operators apart from errors in undertaking the tasks;
iv. A system that provided for the use of guards or push sticks or other such implements or devices, that enabled smaller rib racks to be cut without the need for the operator’s fingers to come into such proximity to the cutting edge of the bandsaw while cutting smaller rib racks;
v. A system that provided for the use of bandsaw machines with the bladestop function when operators were cutting smaller rib racks such as that undertaken by the Plaintiff when the Incident occurred;
vi. A system that provided for monitoring and enforcement of documented procedures and training related to the use of bandsaws with particular reference to the adjustment of the blade guide and blade guard;
vii. A system that provided for the assessment of the ability of machine operators to safely operate bandsaw machines such as that operated by the Plaintiff when the Incident occurred in circumstances where the rib racks were of a smaller size;
(b) The Defendants failure to implement the systems referred to in paragraph 4(a) hereof caused or contributed to the incident as:
i. The Plaintiff was not adequately trained such that the matters set forth in paragraph 1(b) hereof, which paragraph the Plaintiff repeats and relies upon, applied to the Plaintiff in the task he was performing when the Incident occurred;
ii. The Plaintiff’s exposure to the risk of personal injury would have minimised or removed had he not been required to operate the bandsaw for the length of time he was operating it;
iii. The Plaintiff’s exposure to the risk of personal injury would have been minimised or removed had he been assessed in terms of his concentration, attention, competence or confidence in operating the machine he was using, and performing such repetitive work, when the Incident occurred;
iv. The Plaintiff would have been able to minimise or prevent the injury with the use of push sticks or other such similar devices or implements, that enabled him to undertake his tasks without his fingers coming into such close proximity to the cutting edge of the bandsaw;
v. The Plaintiff would have been able to minimise or prevent injury or injury as serious as he suffered had he been using a machine with the bladestop function;
vi. The Plaintiff would likely have been able to minimise or prevent the injury had his training been monitored or enforced in relation to the use of the bandsaw with particular reference to the use of the blade guide or the blade guard;
vii. The Plaintiff would likely have not suffered the injury had he been properly assessed as to his ability to undertake the relevant tasks in accordance with production line requirements when cutting smaller sized rib racks;
(c) The devices the Defendant failed to implement include the matters referred to at paragraph 3 hereof which paragraph the Plaintiff repeats and relies upon;
(d) The Defendant’s failure to implement the devices referred to in paragraph 4(c) hereof caused or contributed to the Incident as are otherwise outlined in paragraph 4(b) hereof, which paragraph the Plaintiff repeats and relies upon.
5.   In response to paragraph 5 of the Request regarding paragraph 7(i) of the Plaintiff’s Statement of Claim:
(a) The Plaintiff repeats and relies upon the matters set forth in paragraph 2(a) hereof in relation to the workstation that ought to have been provided to the Plaintiff;
(b) The Plaintiff repeats and relies upon the matters set forth in paragraph 2(b) hereof in relation to the manner in which the Defendant’s failure to provide such workstation caused or contributed to the Incident.”

Notwithstanding the extent and elaborate complexity of the allegations of negligence in the plaintiff’s evidentiary case there was a complete absence of any evidence which would support most of it. A few specific examples will illustrate the more general point.
Notwithstanding the pleaded case that the Plaintiff was inadequately trained or instructed in relation to the appropriate time that he would spend on the bandsaw and “the indicators that he was at risk of [sic] continuing to undertake such work”, particularised as ‘the period up to when his concentration or attention could not remain focused on the task of operating the bandsaw safely or in accordance with the instruction or training, with particular attention to behaviours or mannerisms consistent with not being able to maintain concentration or attention in the operation of the bandsaw” such that he “did not assess his capacity to undertake such duties safely which if assessed he would have removed himself from the operation of the machine”, he gave no evidence of “failing attention or lack of attention to safety needs in the operation of the bandsaw” or “wondering focus”, or “intrusive thoughts”. Indeed, the only evidence relative to any of this part of the pleaded case was to the contrary. So much so that with commendable brevity, that part of the case was abandoned in two sentences in the plaintiff’s written submissions as follows:-
“The plaintiff conceded in cross-examination that there were no signs of him losing concentration. The plaintiff does not pursue bases of negligence related to such matters.”[6]
[6]Plaintiff’s written submissions, para 35.
Notwithstanding the pleaded case that he was inadequately trained or instructed as to the priorities regarding safety in the operation of the bandsaw as opposed to production requirements such that he was not trained or instructed “to cease operating the bandsaw if (he), felt that he was unable to continue operating it in a fashion that enable him to keep up with the production rate for the production line in which he was working at the time he sustained his injury”, he gave no evidence of there being any issues associated with the rate of production on the day or of any inability on his part to keep up. He had given evidence of being slower when first trained and inducted into the use of the bandsaw; but not by the time he was injured. Indeed, in evidence-in-chief, having said that he had no control over the speed at which the process line was operating, he was asked whether that had any impact on the way he was doing his work. He answered:
“No. After I got used to doing it, you keep up with the way the – the boners are going”.
He was asked what might happen if he did not keep up. He answered (hypothetically given his earlier answers) that the meat piled up to be completed before taking breaks. But the irrelevance of that to his case was demonstrated by the next question which was “Did that occur on – as far as you recall”, to which he answered “No.”
The same evidence disposes of allegations of negligence because of inadequate training as to “approaching the task of cutting slippery portions of meat with a slower production rate to provide for a safer process that would have prevented the injury by eliminating haste from the perceived requirements of undertaking the duties” and of “requiring the plaintiff to accommodate a rate of production that did not provide for his safety in undertaking his duties in cutting slippery portions of meat including the rib racks”.
Notwithstanding the pleaded case that he was inadequately trained or instructed “as to the proper or safe method of cutting smaller cuts of meat such as veal rib racks” such that “the proper and safe method” of cutting them ought to have been “to place the hand flat against the end of the chine bones being cut and avoid a pinch group so as to keep the fingers clear of the cutting surface of the bandsaw”, and notwithstanding the pleaded case that this was the method in which he ought to have been trained as “the means by which slippery meat could be secured”, there was not a shred of evidence to the effect that this was an available, appropriate or safe method. The plaintiff agreed that the method which he adopted and which he had been trained, of using a pinch grip on the ribs of the rack with the fingers curled away from the blade, was to have a firm grip and was a good technique.
The disassociation of the plaintiff’s evidentiary case from so much of his pleaded case is further demonstrated by his written submissions at the conclusion of the trial. In those submissions the findings of fact which he urged the court to make relevant to the issue of liability were reduced to the following:
“(a)the defendant did not assess the risk presented to operators of the bandsaw by small portions of meat or slippery meat;
(b)plaintiff was trained in some respects only as to the operation of the bandsaw;
(c)the plaintiff was not trained as to the risks presented by smaller portions of meat, slippery meat or the risks created by passing such portions of meat through the bandsaw;
(d)the injury was sustained when passing a small portion of meat through the bandsaw where because of its size, the blade caught the meat and pulled the portion into the moving blade;
(e)when passing the meat portion through the blade of the bandsaw, the plaintiff was unable to let it go when the meat became caught in the moving blade;
(f)because the plaintiff could not let go of the portion of his meat his finger was drawn into contact with the moving blade of the bandsaw;
(g)because the plaintiff’s finger was drawn into the moving blade of the bandsaw he suffered a significant laceration described as a partial amputation;
(h)the duty owed by the defendant to the plaintiff incorporates the matter set forth at paragraph 15 hereof;
(i)the defendant did not meet the standard of reasonableness related to the elements of the duty it owed because:
(i)      it did not train the plaintiff to deal with smaller or slippery portions of meat;
(ii)      it did not provide plant and equipment that was fitted with blade technology when cutting smaller or slippery portions of meat;
(iii)     it did not prepare the plaintiff by training or instruction to identify a safe system of work when working with meat portions presented as slippery or with smaller than that to which he was accustomed;
(iv)     it did not supervise the plaintiff in relation to the proximity with which he was passing his fingers to the bandsaw when cutting the portions of meat he says were smaller;
(v)     it did not provide safe plant and equipment for the task to which he was assigned;
(vi)     it did not assess the actual risk presented to the plaintiff by the need for him to comply with the relevant standard and the slipperiness of the meat or its size;
(vii)    it did not provide for a system of work that enabled the plaintiff to safely cut the portions of meat he was directed to cut.”
He concluded that:
“All of these matters, it is submitted, could have been attended to without increasing costs in any meaningful way. There was a training procedure that simply needed to be modified to accommodate the matters outlined above. There were machines operating in the boning room that had BladeStop technology. Supervisors were already present in the boning room and needed to attend to the particular issues with respect to the size and nature of the meat that was being cut by the plaintiff. Alleviating or obviating the risk presented to the plaintiff would, it is respectfully submitted, have required reasonable efforts to be made by the defendant. It did not do so and the plaintiff is therefore entitled to judgment in his cause of action.”[7]
[7]Plaintiff’s written submissions, paras 44 and 45.
Before returning to these matters which are now the essence of the plaintiff’s case, something first should be said about oral submissions made on the plaintiff’s behalf about concerns which he had on the morning in question and how those submissions contradict (or are contradicted by) the pleaded case.
When asked by me what the evidence was as to how much smaller the piece of meat the plaintiff was working on actually was, or whether it was a matter of intuition that if it were smaller by any degree then the fingers would be closer by some degree, counsel for the plaintiff submitted:
“So this is where I point to the evidence of Mr Lowe himself. What he said about that, your Honour, is that the portions he was cutting were small, such that they created a concern in his mind. And the concern in his mind was related to the close proximity his fingers were required to be to the moving blade in order to perform a cut on those smaller portions. In my submission, that elevates it beyond speculation in the sense of relying upon intuitive aspects of that, though accepting if you’re dealing with a smaller portion, your margins are less. In the instance of Mr Lowe undertaking the cut whereby he suffered injury, he talks about and gives evidence of the greater concern he had because of the smallness of the portions and the close proximity of his fingers.”
Counsel continued:
“So the risk – and this is the focal point of the issue of liability. The risk is one that arises out of either or both the slipperiness of the meat and the portion. What is conceded by the people who provided the training to Mr Lowe is that there’s nothing in the training documentation that identifies a process whereby Mr Lowe can do something about his perception of that risk, and that is where the deficiency arises insofar as the plaintiff’s case is concerned with respect to the defendant’s training. That then permeates into things like instruction, and it permeates into things like supervision.” (emphasis added)
Then having noted that on the plaintiff’s evidence he had only been working on the bandsaw for two weeks (and even on the defendant’s case, only four weeks), counsel continued:
“Mr Lowe gave evidence that he had never encountered portions of the size or portions that had this slipperiness, noting that he had experienced yearling portions, but they didn’t present in this way.
So whatever it was that he encountered on that morning is something that elevated the risk beyond what he felt he was prepared for, what he was trained for. With that elevated risk, he developed greater concerns, but then there is an absolute absence of evidence about what he did in relation to that concern. And that’s where it is said that the deficiency falls in relation to the system of work, the training and instruction, the supervision that was applied, and the way in which Mr Lowe was prepared to undertake that task.” (emphasis added)
Then, later again and after further questioning about what was being contended for as the deficiency in supervision, the evidence being that there were supervisors present but the criticism made that they were more concerned with observing the product as it was being produced rather than method being adopted in its production, this was submitted:
“The way it works, in my submission, your Honour, is that right back at the beginning when Mr Lowe was prepared by the organisation that employs him to operate the bandsaw, it provides in that training instruction a way that Mr Lowe can articulate or – that’s probably putting it too high – somehow indicate to a supervisor that he is facing an issue in performing the work. Now notwithstanding the fact that Mr Lowe personally, subjectively, developed an elevated sense of concern about what was occurring because of the proximity of his fingers, he had no means and was taught no means, was instructed in no means, to do something about that risk.
Mr Lowe gave evidence of having a number of portions, and I am hoping this answers part of your Honour’s question. Whilst it was a cut that occurred – and a cut to his finger that occurred on one instance, it is in the context of him experiencing these risks and issues on a number of instances prior to that. He managed to deal with it, and he managed to deal with it out of his own knowledge bank and experience for a period of time only.
Ultimately, what happened or what transpired was, on his evidence, something that can be attributed to the characteristics and qualities of the meat that he was cutting on the bandsaw in those period – that period leading up to when the incident occurred. So supervision then must hook into what is part of the training instruction and preparation such that when a worker who is operating a bandsaw says to a supervisor, “look, I can’t cut this in accordance with the proximity requirement. I need to either go to the blade stop bandsaw or we need to do something else.” It is sufficient, in my submission, for the plaintiff to identify that inadequacy in the training instruction – or the system between the training instruction and the supervisor. So part of my answer is that its not one on one supervision. Part of my submission in answer to your Honour’s question, and it is an entirely apposite question, is related to the interaction between the training instruction and the supervisor and his role.”
So as to be certain as to what was identified as the deficiency, I summarised it in this way with counsel’s concurrence:
“So as I understand that submission, now the insufficiency that you identify is that if in the mind of Mr Lowe, whose – because of size or slipperiness or both, perceives an increase in risk, his training or instruction has not provided him with a mechanism of communicating his concern and then it manifests itself in him being injured. Is that a fair way of - - -
Mr Green: It is, your Honour. Its not just communication but its also the practicality associated with dealing with that risk.”
Those submissions are inconsistent with, and directly contradict, the pleaded case. As set out above, the plaintiff pleads that he ought to have been trained or instructed “in relation to assessing the risks associated with the performing cuts [sic] on small or slippery portions of meat”.[8] As also set out above, in his first further and better particulars the plaintiff pleads that the failure to provide that training contributed to the incident “by reason of the fact that the plaintiff:
(i)did not assess his capacity to undertake such duties safely, which if assessed he would have removed himself from the operation of the machine;
(ii)the plaintiff was not able to assess the risks relating to the operation of the bandsaw in performing the cuts on the portions of meat that were smaller and slippery insofar as the plaintiff was concerned, which risks if assessed by the plaintiff would have enabled him to make a decision about how to deal with such risks;
(iii)the plaintiff did not consider the risks presented to him by reference to the weight, size, presentation or slipperiness of the rib racks he was cutting when the incident occurred where if such risks had been assessed the plaintiff would have been able to respond to such risks.
[8]Further Amended Statement of Claim, para 7(a)(vii).
To similar effect, in the second further and better particulars the plaintiff pleads an inability to assess his ability to operate the bandsaw safely in performing cuts on the smaller rib racks and, had he been able to properly assess his ability “he would have been able to make decisions about his continued operation of the bandsaw” and “he would have been able to request moving to a BladeStop machine” and “he would have been able to request moving to a blade stop machine which would have enabled the defendant to make decisions about the safety of the plaintiff consistent with his not being exposed to a risk of personal injury while cutting smaller rib racks”.
Therefore, the plaintiff’s pleaded case as to lack of instruction or training was that he was unable to assess the risk posed to him by operating the bandsaw when cutting smaller portions. His pleaded case was that had he been trained such that he had that ability to assess the risk, he would have made decisions as to how to deal with the risks such as: desisting in using the bandsaw; requesting a move to another saw; or even removing himself from the operation of the bandsaw. That is, his pleaded case was that he could have avoided the risk had he only been able to assess its presence. His pleaded case was not that he did not know what steps he might take to avoid a risk of which he was aware.
To the contrary, however, the final submissions were the antithesis of the pleaded case. His final submissions were that he was able to assess his ability to perform the work safely on the smaller cuts. The small portions created a concern in his mind related to the close proximity of his fingers to the moving blade in order to perform the cut on those smaller portions. The failing is now said to be that the training documentation did not identify a process whereby he could do something about his perception. It is now said that “whatever it was that he encountered on that morning that elevated the risk beyond what he felt he was prepared for, what he was trained for”. But, as he further submits, having developed those greater concerns “there is an absolute absence of evidence about what he did in relation to that concern”. More accurately it should be said that the evidence is that there was an absolute absence of any action being taken by him in relation to those concerns. Certainly, he took none of the steps which he pleads he would have taken had he been able to assess his ability to do the work safely.
In my view, the conclusion which is open is that he did not in fact have those concerns on that morning. Had he done so, he would have taken steps he knew were potentially available. He would, at least, have raised those concerns. In evidence-in-chief, having said there was no training about expressing concerns, he said, when asked how he felt about expressing concerns about the task if he had them:
“I would have. I would have said that I don’t feel comfortable, as in my fingers being so close.”
But you didn’t on this occasion? – I didn’t at all.”
Furthermore, the plaintiff gave direct evidence that he did not hold concerns that morning beyond those generally associated with passing his fingers close to the bandsaw when operating it. In evidence-in-chief he was asked, generally, if he recalled any of the circumstances prior to his suffering the injury to his finger “thinking about that morning” to which he answered “no”.
Having earlier given evidence that he “was a doing a smaller beef. A yearling” that morning which he had described as “a bit slimy, slippery”, which he explained as “fat, like fatty”, he was asked if he noticed any change in the way in which the meat presented for cutting on that morning and he said “no”.
He was asked if it was all the same and he said “yep”.
He was then asked, directly:
“When you were doing the work on that morning did you form any concerns about the work you were doing with respect to the bandsaw”.
Tellingly, he simply responded “no”.
There was then this exchange:
“Did you have any concerns at all in the operation of the bandsaw with respect to that piece of machinery? - - - As before – before the injury?
Yes? - - - It was dangerous.
And what created that danger - - - Your fingers are so close to the saw - - - the blade.
What did that mean in terms of how you approached the task? - - - At the time, no. Yeah, I – I was doing my job.
All right, but when you were doing your job, what were you thinking about the fact that the bandsaw was - - - ? - - - You’ve got to be wary about – worried about. Got to make sure they’re clear from the - - -
And what were you doing to make sure your fingers were clear? - - - concentrate. You’ve got to concentrate.
Anything else? - - - Make sure you cut on the right ankles.”

That evidence was clearly about a general concern which he had about the dangerous process of cutting meat with the bandsaw with his fingers passing close to the blade about which he had to be wary and concentrate. It was not evidence of a heightened, or different, concern about the process on this morning arising from the particular circumstances posed by the qualities of the meat he was working on on that occasion.
Later in his evidence-in-chief, having again said that the meat he was working on was smaller and slipperier than the meat of steers, the following exchange occurred:
“Okay. Did you think about why that was the case when you were cutting it - - - As just the size difference?
Yep? - - - I was thinking about it, yes.
And what was your thought? - - - Like concentrate more on – on the smaller size. Get the right angles.
The right angles to cut - - -? - - - Cut the back ribs off it, the - - -
All right? - - - - - - Carcass.”
In my view, that evidence demonstrates that the plaintiff was aware of the different size of the portions and was concentrating on the process he was performing in light of that. It is not of evidence of heightened or different concerns. Similarly, still in his evidence-in-chief:
“When you started to cut that portion of meat, did you have any concerns about your own personal health or safety? - - - That’s its dangerous.
And why was that? - - - So close to it.
Did you say anything to anyone about that? - - - No.
Why is that? - - - I just kept doing my job. As in, just keep - - - .”
In this passage of evidence he simply identifies the general danger of passing one’s hands close to the blade when performing the cut. His use of “so close to it” is not an expression of the dangerousness of the process only arising because of the qualities of that particular portion of meat.
That the plaintiff would have raised any concern if he actually had one is also consistent with other evidence, including further direct evidence given by him.
At the commencement of the trial, counsel for the defendant, with the plaintiff’s consent, tendered various documents related to employment of the plaintiff with various employers. Amongst them were records of Programmed Integrated Workforce which related to work which the plaintiff performed with Martin Brower as a pickup and delivery truck driver.[9] Included within those records was a document titled “Interview Guide” relating to an interview conducted on 6 August 2021.
[9]Exhibit 3.
The guide informs the interviewee that “Programmed do not want to place you in a role where any preexisting conditions you may have are aggravated. It is important to ensure that you have declared all injuries or conditions”. To that end, the question was asked “have you declared, or do you need to declare, any injuries or illnesses? (i.e. sports, work, health conditions)”. The plaintiff disclosed “cut finger on ban [sic] saw 2018 [sic] no ongoing issues. Fully medically cleared”. That disclosure, of itself is of some significance as to what the plaintiff alleges in this proceeding as to ongoing effects of the injury which impact upon his income earning ability. These will be addressed later in these reasons. For immediate purposes, however, its significance lies in its relevance to further “Safety Focus Questions” asked in the interview.
Having disclosed his previous work with a bandsaw from which he sustained his disclosed finger injury, the plaintiff answered a series of safety focused questions by reference to his work with that equipment.
He was asked:
“Can you give an example of a hazard you have encountered at work? What did you do to protect yourself?”
He answered:
“Bandsaw without guard”.
The next question was:

“If you are unsure about the duties required from you, what would you do?”

He answered:
“Ask supervisor”.
Next he was asked:
“Have you ever stopped working because you thought it was unsafe? If yes, what was the situation?”.
He answered:
“Did question the bandsaw not having a guard and was advised by supervisor it was fine and continue work.”
Finally, he was asked:
“Have you ever been involved/orwitnessed a serious significant incident or near miss in the past.”
He answered:
“Finger cut in bandsaw at meat works”.
The plaintiff was cross-examined about his disclosure of the previous injury and his having no ongoing issues having been fully medically cleared. He was not cross-examined on the safety focused questions and his answers. Notwithstanding that he had not been cross-examined on them, he was taken, without objection, to that part of the interview guide in reexamination. The exchange was as follows:
“Is that true what you’ve recorded there? That you checked with your supervisor and that you asked a question about the blade guard? --- As a guard for sliding I would have asked about.
You wrote that, didn’t you? - - - Yep.
Yes. What I’m asking you is whether its true that you spoke to your supervisor about those things and in relation to the answers that you’ve given to those questions? - - - If I can remember, I would have, yeah. I - - -
And that was before your injury? - - - Yeah. Yeah.”
From that evidence it can be concluded that the plaintiff not only knew that if he had a concern about being able to safely operate the bandsaw he knew that he could raise it with a supervisor. Further, it demonstrates that he had acted on that knowledge on an earlier occasion when he did have such concerns.
In my view, this is further evidence contrary to the conclusion that he in fact held the now asserted concerns on the morning in question. It is further evidence that even if he did hold such concerns, he did not require some further training or instruction to equip him with the ability to know what to do in light of those concerns.
Even if I did accept that he had those concerns, I could not conclude on the evidence that any failure to raise them or to take any other steps to address them was a consequence of a failure to properly train or instruct him to do so. On his pleaded case and on his evidence he needed no such training or instruction (or, at least, no further training or instruction) in that regard.
This analysis further demonstrates the plaintiff’s failure to prove the case he brought.
Returning then to the remaining allegations of negligence and the factual findings in support of them which the plaintiff seeks as set out in his written submissions. From these remaining allegations it can be seen that there are certain matters which are not controversial.
First amongst the matters not in contention is that the meat processing in which the plaintiff was engaged, cutting ribs by use of a bandsaw, is inherently dangerous. Of necessity, it requires the operator to manually hold and control portions of meat, passing them through the blade of the bandsaw. Of necessity, this brings the fingers of the operator within close proximity of the blade.
Next, it is also not in contention that the risk posed by this process cannot be eliminated. That is because it is not contentious that the blade cannot be fully guarded so as to remove the risk of fingers passing in close proximity of an open blade. A fully guarded blade would not permit the process of cutting the portions of meat to be performed. To the extent that the originally pleaded case as to the provision of safe plant and equipment raised, and there was some evidence directed toward, the positioning or adjustment of the guard which does guard part of the blade, it became uncontentious that it was correctly positioned on the occasion in question.
Next, it is not in contention that the defendant had conducted assessment of the risk posed to operators of the bandsaw arising from the process of using the saw to cut portions of meat generally. The allegation is that it was the particular risk presented by small portions of meat or slippery meat which was not assessed.
Next, and to like effect, it is not in contention that the defendant did provide training to the plaintiff as to the risks presented by passing portions of meat through the bandsaw generally. The allegation is that he was not trained to deal with smaller or slippery portions.
From this it can be seen that central to the plaintiff’s case is proof that the portion of meat he was cutting when he sustained his injury was, because of its size and/or slipperiness, such as to pose a risk to the plaintiff beyond that which had previously been identified and assessed, and for which the training he had been provided to perform his work cutting portions of meat on the bandsaw was inadequate. Failure to prove either of those matters must result in the plaintiff’s claim failing. On the evidence, I am not satisfied of either.
I have already set out above the plaintiff’s evidence that leads me to conclude that the portions of meat which he was cutting that morning did not have qualities of size or slipperiness which gave rise to concerns beyond those generally held by him because of the inherent dangerousness of the process. To those matters, in rejecting the plaintiff’s case that the portion concerned was, because of qualities of size and slipperiness, beyond the assessed risk and provided training, I would add the following.
Evidence upon which findings might be made as to the extent to which the portions were smaller is entirely absent from the plaintiff’s case. The plaintiff had provided these particulars:
“Insofar as the plaintiff can estimate the difference between the portions he was trained and accustomed to cut, he considered the portion being cut at the time of the incident to be in the vicinity of 50mm to 100mm smaller by reference to its length and width and about half the weight, with his training focusing on performing cuts of rib racks of between 100mm and 1300mm, and the size of the rib racks that were being cut when the incident occurred at between 50 and 70mm.”
Self-evidently, those particulars are unhelpful because the measurements make no sense. More to the point, though, is that the plaintiff made no attempt to place any meaningful evidence before the court upon which a finding of fact foundational to his case can be made.
What can be found on his evidence is that, notwithstanding his only having been engaged in that activity for a matter of weeks, he had cut yearlings before. He gave that evidence directly in evidence in chief, qualifying it only with “but not as slippery”.
What emerged in cross-examination of the plaintiff was entirely unsupportive of his case as to portion size and as to training in respect of such portion size. The following exchange took place:
“Okay. Now, Mr Lowe, you gave some evidence this morning that the rib rack you were cutting when you were injured was small. I’m just curious to know what you mean by small. Do you mean unusually small, as in - - -? - - - To the – like a yearling just is small.
Right? - - - Yeah.
And so do you say that you – none of your training had ever dealt with a rib rack of that size? - - - Yeah.
It had, hadn’t it? - - - Yeah.
You dealt with rib racks with some variation of a number of different sizes, hadn’t you? Some are big, some are small? - - - Some. Yeah.
Yeah. And the descriptive term when you’re doing a section of work on rib racks is that you’re doing a run of rib racks. Do you understand what I mean by that? - - - - The amount of carcases that - - -
That’s right. Yeah. So when I say you’re doing a run of rib racks, they all come from about the same size carcass. Do you understand that? - - - Yep.
And the reason they come from about the same size carcass is the same reason that the specifications exist that that specification exists. It’s the quality control. Its so that all of the products are about the same size. Do you accept that? - - - Yep.
So accepting that there are some size differences in rib racks, if you were doing a run of one type of specification, at least all of the rib racks you were dealing with would be about the same size, wouldn’t they? Around the same size. Yeah.
Yes. And that would give you some advantage, I would think, wouldn’t it, because you’d get – for that run anyway, you’d get a sense of how big each one is, which helps you judge that distance between you fingers and the blade doesn’t it? - - - Yes.
Their not all different. You get a feel for the same size rib rack that’s your processing? - - - -. Yep. Yep.”
On that evidence alone, the plaintiff’s case as to portion size would fail, and with it his claim. But there was further evidence.
The defendant’s general manager, Mr Giddins, gave evidence based on production records for the day of the incident. As to variation within the veal rib racks which the plaintiff was processing that morning, and bearing in mind the plaintiff had been performing the work for about an hour before he was injured, Mr Giddins explained that because the product being produced was a fixed price retail pack, quality control required there to be little variation in portion size. This was a matter with which the plaintiff agreed in cross-examination. As a consequence, the weight variation was 0.2 kilograms which Mr Giddins said was “negligible, particularly in terms of the difference in size that would result in such a variation”. From this it can be concluded that the plaintiff was not, in the context of the production run of that day, confronted with a particularly, comparatively, small proportion which he was cutting when injured.
Perhaps more importantly Mr Giddins also gave evidence which does not support the conclusion that the veal rib racks upon which the plaintiff was working were of an order of magnitude smaller such as to place them beyond the assessed risk and provided training.
Having explained the racks “were specifically produced of a very set carcass weight, which was a veal carcass weight that weighed between 120 and 140 kgs”, he later explained in cross-examination that even for product other than veal the maximum beast weight from which rib racks were taken was 200 kilograms. Importantly, for a consideration of whether the racks the plaintiff was working on that day were comparatively much smaller than others he would have worked upon, Mr Giddins explained that the weight difference was attributable to the muscle, not the size of the frame of the beast. He had earlier given evidence that the maximum weight for veal is 150 kilograms. He provided this evidence:
“Which means most veal have already got a frame, and the weight comes through the muscle. The frame doesn’t really change. So the frame of an animal fundamentally doesn’t change until he gets to about 180 to 200 kilos. And, fundamentally, over 200 kilos is substantially changes to the point where we don’t get racks. It substantially changes to the point where we don’t get racks off them anymore. They’re just too big. But the frame of the animal is fundamentally the same. It’s the muscle that puts the weight on.”
Mr Giddins gave that evidence having just explained why the proposition that portion size would affect the proximity of the operators fingers to the saw blade was not necessarily correct. This was the exchange:
“But when you’re cutting to that specification, you’re cutting along the ribs or the rib ends rather than between the ribs, aren’t you? - - - That’s correct yep.
Yep. That will have a difference in the terms of the proximity of your fingers to the blade, having regard to the size of the portion of meat that’s being cut? - - - Not necessarily, no.
But it can? - - - It’s very – most of the rib ends are – if we go back to that there, you’ll find that specification is a rib length of 80mm which is a standard. So – from the eye muscle. So the rib length is fairly consistent. The weight of that doesn’t change. The weight of that’s variable. I get it. But the rib lengths generally not. So the proximity of where you hold the piece of meat is really governed by the rib length.
Well, I accept - - - ? - - - So if the rib length was at 10 mm instead of 80 mm, yeah, most definitely, you’re moving towards closer to it. But the rib length is a constant length.
I accept that. But I’m going to suggest to you that if there are different weights, the weight is most likely to come from the portion of meat on the rib structure or the bone structure? - - - - No. It’ll be the muscle.”
From this evidence it may be deduced that as between veal and other rib rack products, the size of the ribs themselves would not be so substantially different so as to require different risk assessment, processing method or training.
I reject the plaintiff’s allegations of negligence in so far as they are based on the size of the portions. That is sufficient of itself to dismiss the claim without resort to consideration of the slipperiness of the portions. That is because, on the case now articulated by the plaintiff, although making allegations about lack or absence of risk assessment for slippery meat and inadequate training in processing slippery meat, in the findings of fact which the plaintiff seeks as to how the injury was sustained, any slipperiness of the meat portion is not implicated at all.
As set out above, the plaintiff urges the court to find as a matter of fact that “the injury was sustained when passing a small portion of meat through the bandsaw where because of its size, the blade caught the meat and pulled the portion into the moving blade”. The plaintiff does not urge any finding of fact that the meat became caught in the blade because of its slipperiness. Nor does he urge any finding of fact that the slipperiness of the meat contributed in any way to what followed. It is, on the plaintiff’s own case, a red herring.
Before I leave this foundational finding of fact urged upon the court by the plaintiff, it must be observed that there is absolutely no evidentiary basis for a finding that the blade caught the meat “because of its size”. The plaintiff gave no evidence of the small size of the meat causing the blade to catch. To the extent that he attributed any quality to the catching of the blade it seemed to be the slipperiness, but certainly not its size. Having referred to the meat having slipped he was asked “and was there anything unusual about the way the portion of meat behaved after it slipped?”. He answered, “Slipped, yeah. As soon as it slipped, it just grabbed – the bandsaw grabs and takes”.
No other evidence was led in the plaintiff’s case supportive of such a finding.
To the extent the witnesses called in the defendant’s case were cross-examined about the possibility of meat becoming caught in the blade of the band saw, no suggestion was made that this could be caused by the small size of the meat portion.
The extent of the exchange with Mr Wood was:
“You accepted before there are times when meat can get caught in a bandsaw? - - - Yes.
And if you have a particularly slippery piece of meat that got caught whilst it was being cut, that would be difficult to control, wouldn’t it? - - - Yes.”
And a little later:
“There are times when a blade can become blunt? - - - Yes.
Now, that can be one of the causes why meat catches in a blade when a cut has been formed? - - - Yes.
And that can be – can result in a violent reaction of the – sorry. It can result in significant forces being applied to the portion of meat that’s being cut? - - - Yes.
And when significant forces are applied to the portion of meat, it becomes more difficult for the operator to control the meat? - - - Yes.
And if their fingers are in proximity to the blade that can result in the fingers being cut? - - - Yes.”
I hasten to observe that there was no evidence that the blade was blunt. Indeed the evidence was that it was found not to be when checked after the incident.
The extent of the exchange with Mr Giddins was:
“There are times when operating a bandsaw a portion of meat can catch in the bandsaw while its being cut? - - - It does.
You accept that? - - - Yeah. Its generally from connective tissue.
And when the meat catches on the bandsaw, it can behave erratically? - - - Yes. Yes.”

The plaintiff gave evidence of difficulty in gripping packages when working for TP Elite. That evidence is at odds with the medical evidence as to the fingers from which grip strength is derived generally, and the subjective measurement of the plaintiff’s grip strength.
In respect of his work with Martin Brower Pty Ltd through Programmed Skilled Workforce he said that he had difficulty with his injured finger working in a cold room for about half an hour at the start of the day. Notwithstanding that, he would perform driving duties for eight to twelve hours per day. The plaintiff left that employment, which was quite remunerative particularly in comparison with the work for the defendant, after about six months to take up the offer to play rugby league with Southern Suburbs in the Cairns competition to which I have already referred.
Notwithstanding his evidence about experiencing difficulty with his finger in cold environments, in applying for work with Martin Brower through Programmed Skilled Workforce he provided a CV in which he listed amongst his skills an ability to perform a range of manual work tasks and an ability to work in fast paced and refrigerated environments.
As earlier noted, he declared his finger injury and that there were no ongoing issues having been fully medically cleared.
As part of that employment process he was sent for a medical examination which included a musculoskeletal and fitness assessment conducted on 12 August 2021 by Sonic Health Plus. His upper limb strength was assessed as good, including his grip strength for which he rated four out of a possible five. The comments included in the assessment report were “nil abnormalities, nil risk of injury”.
Also as part of that employment process, on 5 August 2021 the plaintiff completed a Safe Start Report Questionnaire. In that, he again disclosed his finger injury, which he described as “cut through right index finger on a band saw”. He was asked the following questions:
“How difficult is it to open bottles or jars?;
How difficult is it to make a tight fist?;
How difficult is it for you to use buttons, pins, hooks or zippers?;
How difficult is it for you to do heavy housework such as washing floors, vacuuming or mowing lawns?;
How difficult is it for you to lift an object from the floor e.g. a bag of groceries or a cardboard box?.”
To each of those questions he answered ‘not at all’.
To each of those questions he answered ‘not at all’.
In answer to whether he struggled with any physical aspects with the duties in previous or current roles he said, “no”.
When asked how often he felt soreness in any part of his limbs or back after doing his usual work he answered ,“none of the time”.
He said that there were no reasonable adjustments that needed to be considered in order for him to safely perform work with any existing injury.
In my view, all of that is consistent with him being able to perform that work for eight to twelve hours per day.
Of course, it is also entirely consistent with his demonstrated proficiency as an A-grade rugby league player over, by then, two seasons subsequent to his injury.
Interest on past economic loss
As submitted by the respondent, any calculation of interest must be performed after deduction of the sums paid by WorkCover Queensland ($5,346.29) and Centrelink ($21,372). Given those amounts exceed the damages award that would have been made, no interest is awardable.
Loss of past superannuation entitlements
Based on the award I would have made, at the rate of 9.5%,lost superannuation entitlements amount to $584.04.
Fox v Wood
An award of $646 under this head of damages is uncontentious.
Future loss of earnings
In my view, the plaintiff’s claim for future loss of earnings is unsupported by any evidentiary foundation and which, in order to award it, would require the court to ignore the evidence. This is perhaps no better reflected in his counsel’s frank concession at the commencement of his oral submissions that “quantum is much more problematic for Mr Lowe”.
He seeks an award of $460,000 “approached on a global basis (which) would be designed to accommodate the loss of income earning capacity related to the effects of his injury and ongoing impairment”.
The underpinning mathematics is a notional $550 net weekly loss for the remainder of his working life to age 67. It is submitted that “it is not unrealistic to approach the assessment of future loss of earning capacity” on that basis. In my respectful view it is entirely unrealistic. The $550 is derived from the difference between the average net weekly income for level 5 step 1 and level 7 step 1.[35]
[35]Plaintiff’s written submissions, para 109 and footnote 156.
The written submissions go on immediately to say:
“It is submitted that the evidence before the court suggests that she would have completed her studies by the time of trial and it is further submitted that she should be regarded as person likely to have obtained such a role commensurate with those qualifications by now”.
Given that the plaintiff is male and not female, that there is no evidence of him studying for any qualification nor of any role commensurate with any qualification, it would appear that this part of the of the submission is an artefact from submissions prepared for some other case part of which has been copied and pasted into the submissions for this case.
The submissions continue, and concede, “there may no doubt be times where the plaintiff has secure employment though there are doubts about the longevity of such employment and he will face uncertainty and disadvantage because of his injury”.
On the evidence, the only doubt about the longevity of secure employment which the plaintiff may have from time to time, other than uncertainty faced by all workers, arises his demonstrated pattern of voluntarily leaving such employment. As with his failure to mitigate his past loss, his propensity to give up well paid work for reasons unrelated to his injury should not factor in an assessment of future economic loss caused by the injury.
The greatest example of this propensity, and the best illustration of the unsustainability of the plaintiff’s asserted basis for calculation of loss, is that by August 2021, less than two years post injury, the plaintiff had obtained secure work as a driver for Martin Brower through Programmed Integrated Workforce. His average weekly earnings at that time were $1,580; more than double his weekly wage with the defendant. Despite matters of which he complained about cold conditions in the first half hour of the day, he demonstrated a clear capacity to perform the work for up to 12 hours per day. In this work, he was at no economic disadvantage; he was 100 per cent ahead of where he had been.
In the course of oral submissions the following exchange took place:
“His Honour: But isn’t it evidence of the fact that whatever residual disability or – he has got as a consequence of his finger – a man of his education, training and experience – which – as you describe it as rudimentary – is nonetheless, on the open job market, able to obtain employment which was better paid than the employment in which he injured himself.
Mr Green: Yes, your Honour. I accept that. I think that’s clear on the evidence. The only caveat I would add to that is the assistance his father gave to that process whereby he was employed, and whilst MrLowe expresses a general view that the employment will be available to him if he were to chose to come back to Brisbane, there is no guarantee of that.”
Following this, Mr Green for the plaintiff conceded that “what is put forward is the high-water mark”. No other basis for calculation was put forward. Later, when challenged as to how a claim for future economic loss of $460,000 could be justified on the facts in this case, Mr Green, again, made a frank concession saying “only because Mr Lowe himself says that he has difficulty with his finger. It is evidence that he has made decisions in the past of that, unrelated to the observations of his employer”. That frank concession implicitly recognises that the plaintiff’s subjective view as the only basis for such an award is inconsistent with the objective evidence as to his abilities and capacities (much of which the plaintiff was himself the source) and the medical evidence.
Notwithstanding having secured this comparatively highly remunerative work, he gave that job away to play rugby league in Cairns. The work he obtained there doing bread deliveries was much less well remunerated and match payments did not make up the difference.
It is submitted for the plaintiff that “arguably, this is not something the plaintiff was likely to have done if his career had not been interrupted by the effect of the injury”.[36] That submission cannot be accepted. It is clear on the evidence that playing rugby league is the plaintiff’s passion. If he was prepared to give up a job paying more than $1500 per week to pursue that passion, I readily conclude he would have given up a job with the defendant which paid half as much to do so.
[36] Plaintiffs written submissions, para 107.
The plaintiff’s claim for past economic loss conceded that he was not entitled to damages when working in that significantly higher paid employment, or for any loss sustained when he left that employment to play rugby league in Cairns. The extrapolation of this for the purposes of assessing future economic loss is not that it is some interruption to the period for which he can claim loss of income, it is to recognise that if and when he chooses to pursue work outside of maintaining a football career, there is work within his abilities, which has been demonstrably available to him and which, is much better paid than the work he performed for the defendant.
The defendant, fairly and correctly, concedes that in the course of his working life the plaintiff will be at some disadvantage in the open workforce because of his injury for which he should be modestly compensated. The defendant submits that this should not exceed $30,000.
When assessing a global sum to recognise some disadvantage, as I am required to do in this case, is not a scientific exercise. The cases referred to in the defendant’s submissions provide some useful yardsticks, but no two cases are on all fours. The defendant recognises that some of the cases are now dated and the awards made in them must be viewed in that context.
I would have been a little more generous than the defendant’s submissions. I would have awarded $45,000. This does not purport to be a precise figure reached on an identifiable mathematical basis; However, it represents a little more than $20 per week projected over the plaintiff’s working life.
Loss of future superannuation entitlements
Calculated at the rate of 11.3% the award under this head would have been $5,098.50.
Past special damages
Statutory refunds totalling $35,226.30 are uncontroversial.
The plaintiff claims $2,500 for analgesics in the order of two tablets per day for 202 weeks. In my view, the evidence of the doctors as to what they had been told of his need for analgesics does not support this. It was much more occasional.
I would allow $500.
I would allow the plaintiff’s claim for $1,000 to obtain his truck licence. That was a step integral to obtaining the well paid employment which, essentially, put to an end any claim for ongoing weekly economic loss (viewed separately from the abandonment of employment).
I would allow the Medicare refund of $471.10.
Future expenses
There is little evidence supporting this claim, although one would infer that there will be occasions when he will need to see his doctor in relation to the finger.
Future pharmaceuticals I would also infer will be required from time to time.
Doing the best I can, I would allow $2,500 on a global basis.
Disposition
The claim is dismissed.

CITATION:	Ritchie James Edward Lowe v Greenmountain Food Processing Pty Ltd [2024] QDC 204
PARTIES:	RITCHIE JAMES EDWARD LOWE (plaintiff) v GREENMOUNTAIN FOOD PROCESSING PTY LTD (ABN 46603 161 100) (defendant)
FILE NO:	ID24/2020
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Ipswich
DELIVERED ON:	29 November 2024
DELIVERED AT:	Ipswich
HEARING DATE:	1, 2, 3, 4 August 2022 and 17 February 2023
JUDGE:	Horneman-Wren SC, DCJ
ORDER:	1. Claim dismissed
CATCHWORDS:	WORKERS COMPENSATION – LIABILITY TO PAY COMPENSATION – LIABILITY OF EMPLOYER – whether the defendant is liable for the plaintiff’s injuries – where the defendant accepts they owe a duty to exercise reasonable care to guard against foreseeable risks - where the plaintiff has failed to make out a case of liability against the defendant DAMAGES – ASSESSMENT OF DAMAGES IN TORT – GENERALLY – assessment of common law damages under Part 9 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)
LEGISLATION:	Workers Compensation and Rehabilitation Act2003 (Qld) ss 306O, 306P, sch 9 Workers Compensation and Rehabilitation regulations 2014 (Qld) sch 8
CASES:	Hobbs & Anor v Oil Drive [2008] QSC 45. Fox v Wood (1981) 148 CLR 438
COUNSEL:	R D Green for the plaintiff B Munro for the defendant
SOLICITORS:	Smiths Lawyers for the plaintiff BT Lawyers for the defendant