Willmott v Australia Meat Holdings Pty Ltd

[2000] QCA 189

[2000] QCA 189

COURT OF APPEAL

de JERSEY CJ
McMURDO P
DUTNEY J

CA No 10237 of 1999

LAURIE BRIAN WILLMOTT                Respondent (Plaintiff)

And

AUSTRALIA MEAT HOLDINGS PTY LIMITED   Appellant (Defendant)
(ACN 011 062 338)

ROCKHAMPTON

..DATE 17/05/2000

JUDGMENT

DUTNEY J:  The respondent, Mr Willmot, was born on 19 May 1963.  He was awarded damages against the appellant, Australia Meat Holdings Pty Limited in a sum of $259,826.12, less a refund to WorkCover of $8,027.54, leaving a net of $251,798.58 on 19 October 1999. 

The respondent brought the action against his former employer, the appellant, contending that in the course of his employment with the defendant between 20 June 1993 and 19 May 1995, while working as a slicer, he sustained bilateral soft tissue injuries or, alternatively or additionally, an aggravation of a pre-existing shoulder ligamentous laxity and multi-directional instability. 

Liability for the injury was admitted but in a qualified way which left open the extent of the injury.  The admission was in these terms:

“On the issue of liability, and to avoid the expense of both parties calling expert evidence, the defendant is prepared to admit for the purposes of trial that there was a breach of duty sufficient to constitute a cause of action.  However, the defendant will contest liability on the basis that the breach of duty did not cause your client’s continuing disability.  It will be the defendant’s case that any current medical condition suffered by your client was caused by his work at Consolidated Meat.  The defendant’s case will be that the plaintiff’s condition had resolved by the day he commenced work at CMG.”

Because of this concession, his Honour found at page 74 of the record that it was not necessary to make any specific findings about the reason why Mr Willmot suffered an onset of pain in his shoulders.  It seems to me that that was a correct approach for his Honour to take. 

The respondent had a limited education and, as a consequence of dyslexia, limited literacy.  His work history prior to commencing work with the appellant was in labouring jobs.  He commenced work with the appellant as a labourer in 1991 and qualified as a slicer, with a corresponding significant pay increase, in May 1993. 

By July 1993 the respondent complained to the appellant’s personnel officer about numbness in his left arm and some clicking in his left shoulder.  The personnel officer recommended Cortisone and allocated light duties for one day.  Subsequently the respondent was offered work on the topside table where he began to experience a numb feeling in his right arm and clicking in his right shoulder.

The respondent continued to work as a slicer until the appellant’s workforce was dismissed in May 1995.  During that time the respondent did not seek medical attention.  At
page 72 of the reasons, the learned primary Judge said:

“It seemed to me, listening to him give evidence, that he has lived with his disability of dyslexia throughout his life and has tried very hard to adapt to that.  Clearly his work as a slicer was the most remunerative work that he had ever had and he had an understanding that in the workplace if you want to hold on to a job you do not complain.  Consequently he put up with the pain in both shoulders and the numbness that from time to time affected him in his arms.  Some time after he had been dismissed he attended at the Rockhampton Base Hospital.”

The respondent worked for a short time in October 1995 as a loader operator.  The work involved using a crowbar, which the respondent then found beyond his capacity.  The respondent found work at the Lakes Creek Meatworks in 1996, initially moving boxes on a conveyor, then as a slicer.  He found he had pain in both shoulders, a sense of loss of strength in both arms and his shoulders clicked.  The respondent ceased work on 24 June 1996 and since then has worked briefly on several occasions but has been hampered by shoulder pain. 

The appellant appealed against the generosity of the award of damages in the areas of pain and suffering and economic loss.  However, the only point pursued in argument was in relation to future economic loss, for which his Honour awarded an amount of $130,000 based upon a weekly loss of $200, discounted by approximately 20 per cent, which is conceded in this case to be appropriate. 

The appellant’s primary submission is that the symptoms from which the respondent now suffers were a result of the pre-existing condition and in so far as the appellant’s responsibility was concerned, the symptoms for which it was liable had resolved before the respondent commenced work at the Lakes Creek Meatworks.  Alternatively, it is said that the respondent would have suffered the injury in any event.

In my view his Honour was clearly conscious of the pre-existing condition, as is apparent from his judgment.  His Honour accepted the evidence of Dr Curtis, which included at page 48 the following passage: 

“Now doctor is it, given the work history that he had prior to commencing work as a slicer, if he had remained in that sort of work, labouring work, a mixture of pick and shovel, railway work and so on, was he necessarily at risk of ever having problems in his shoulders?–– Not necessarily.  I think once he had a variety of tasks to do then he was probably at no greater risk than anybody else from shoulder instability occurring.

Might he have seen out a normal working life, that is doing labouring work?–– I think that’s quite possible or quite probable.  He would have worked until his expected time of retirement unless any other back or injury condition prevented him from continuing.”

It seems to me that his Honour was entitled to take the view as he did that the pre-existing condition would not necessarily, but for the admitted breach of duty by the appellant, have caused a shortening of the respondent’s working life.  Dr McMahon, although with less confidence, agreed at page 56 that it was possible that but for the nature of the work with the appellant, the respondent would have had a normal working life. 

Because of the concession made by the appellant and because it was therefore unnecessary for his Honour to determine the elements of negligence or breach of duty that had given rise to the condition, it is not possible to say that simply because he later worked as a slicer for Lakes Creek Meatworks, the respondent would necessarily have suffered the injury in any event.  He had worked for some 15 years in labouring jobs, including some very heavy labouring jobs, without difficulty.

It was open to his Honour to conclude, without having to determine precisely what it was, that there was some feature in the Australia Meat Holdings work system which had been responsible for the injury, and it seems to me beyond argument that the later symptoms at the subsequent employer were simply an aggravation of that condition. 

In those circumstances his Honour was entitled to award the amount he did for future economic loss and the appeal should be dismissed.

THE CHIEF JUSTICE:  I agree.

THE PRESIDENT:  I agree.

THE CHIEF JUSTICE:  The appeal is dismissed with costs to be assessed.

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