Young v SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd)
[2021] VSC 445
•30 July 2021
IN THE SUPREME COURT OF VICTORIA
Not Restricted
AT MILDURA
Common Law Division
CIVIL Circuit List
S ECI 2019 04963
STEPHEN YOUNG
Plaintiff
v
SMYBB PTY LTD (t/as Best Bottlers Pty Ltd) (ABN 45 096 514 788)
Defendant
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JUDGE:
FORBES J
WHERE HELD:
Melbourne (due to the ongoing impacts of COVID-19, the proceeding was a hybrid hearing with Counsel appearing in Melbourne and witnesses located in Mildura)
DATES OF HEARING:
10-14 May 2021
DATE OF JUDGMENT:
30 July 2021
CASE MAY BE CITED AS:
Young v SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd)
MEDIUM NEUTRAL CITATION:
[2021] VSC 445
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NEGLIGENCE – Shoulder and elbow injury – Injury whilst cutting plastic wrapped pallet – Common law duty of care – Negligence by employer – Incident of injury – Whether system of providing cutting blades to employees was negligent – Negligence not made out – Workplace Injury Rehabilitation and Compensation Act Vic 2013 (Vic) – Kondis v State Transport Authority (1984) 154 CLR 672.
OCCUPATIONAL HEALTH AND SAFETY – Occupational Health and Safety Regulations 2007, regs 3.1.1, 3.1.2, 3.1.3 – Statutory duty – Duties of employer in relation to hazardous manual handling tasks – Employer in breach of statutory duty – Non-identification of risks – No steps taken to control risks – Injury caused by factors intrinsic to the task of hazardous manual handling – Damages awarded for breach of statutory duty – O’Connor v SP Bray Ltd (1937) 56 CLR 464 – Vozza v Tooth & Co Ltd (1964) 112 CLR 316 – Deal v Kodakkathanath (2016) 258 CLR 281 – Govic v Boral Australian Gypsum Ltd (2015) 47 VR 430.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr. C Harrison QC
Mr. C O’Sullivan
Maurice Blackburn Lawyers
For the Defendant
Mr. W R Middleton QC
Ms. F Spencer
Hall & Wilcox
HER HONOUR:
1 Stephen Young suffered injury to his right shoulder and elbow during work for the defendant as a process worker. The defendant employer (Best Bottlers) provides bottling and labelling services to producers of various wines in areas around Mildura and further afield. For the majority of his time employed, Mr Young worked on a depalletising machine as a process operator. The plaintiff ceased employment with the defendant after he sustained his injury in April 2016 and has not worked since.
2 He sues his employer to recover damages for pain and suffering and pecuniary loss. He alleges negligence and breach of statutory duty. The claim was framed to include both an incident on 7 April 2016 (the incident), when he suffered the onset of severe pain while removing shrink wrap from a pallet using a tool known as a ‘duck knife’, and a work process claim (work process) that required various tasks amounting to heavy and repetitive work that placed strain on Mr Young’s upper limbs. The breach of statutory duty relied on breach of regulations relating to manual handling. Although the period of employment straddled both the Occupational Health and Safety Regulations 1999 and the Occupational Health and Safety Regulations 2007, ultimately only the 2007 Regulations (the Regulations) were tendered and relied on.
3 The occurrence of the incident on 7 April 2016 leading to compensable injury was not disputed, although breach of statutory duty and negligence were denied and contributory negligence on the part of the plaintiff also alleged. Quantum was also disputed. The plaintiff has had surgery to his right shoulder and later his right elbow. The defendant challenged quantum on the basis of medical opinion as to a good outcome from both surgeries. Both the plaintiff’s capacity to work and motivation to work were challenged by the defendant.
4 The expert medical evidence from both parties was tendered without witnesses being required for cross-examination. The lay evidence called by the plaintiff was from Mr Young, Mr Paul Krake, who had worked as a supervisor in the bottling area at Best Bottlers from 2006 until April 2020 and another line supervisor Sherryn Timmins who worked at there for thirteen or fourteen years until finishing in March 2017. Both parties tendered various documents. Photos and videos of the work process and the equipment used were also tendered. The defendant did not call any lay witness evidence.
5 For the reasons that follow, I have concluded that Mr Young sustained injury to his right arm as a result of the incident on 7 April 2006. The claim of negligence as alleged for that incident has not been made out because the system in place for providing blades for the duck knife was one that was reasonably safe and was working as it was intended to on the day of the injury. The claim for damages for breach of statutory duty is made out as the activity undertaken was “hazardous manual handling” as defined and the injury that resulted was an injury caused by the intrinsic nature of that task. The employer had not identified the task nor taken steps to control the risk of musculoskeletal injury as required by the Regulations.
6 I have assessed general damages for pain and suffering at $180,000. I have assessed past and future loss of earnings at $455,000, prior to any reduction required by s 343(1) of the Workplace Injury Rehabilitation and Compensation Act Vic 2013 (Vic).
The work done by Mr Young
The depalletising machine
7 The work process itself on the depalletising machine was largely uncontroversial. Mr Young’s description of the work broadly aligned with some of the photos and videos and the descriptions given by the supervisors.
8 Mr Young said that the company had two depalletising machines and some time after he started a third one came into use. Each depalletising machine operated at the start of a bottling line. He mostly worked on the third machine from the time it was purchased. He thought he had worked on this particular bottling line, called Line 4, for the last eight to ten years of his employment. The way he worked on this line was slightly different to operating the depalletising machines on the other two lines. To the extent that the photos and videos demonstrated tasks on the other bottling lines, the tasks did vary somewhat. I have focused this summary on the tasks described by Mr Young as undertaken on Line 4.
9 Pallets of wine bottles secured and encased in tough shrink wrap plastic were delivered to the premises. Some pallets would also be secured by vertical green plastic strapping. Pallets would be stored either inside or outside and brought by forklift to the area near the depalletising machine. For Mr Young’s line, the forklift would place the full pallet on a stack of four red wooden pallets. On other lines, the initial steps were performed with the pallets sitting on the ground next to the line.
10 The pallets consisted of a number of layered bottles standing upright. Each layer was separated by a masonry board. For 750ml bottles, a pallet consisted of four layers with 1152 bottles in total. Other smaller ‘piccolo’ bottles came in six-layer stacks. Both produced pallets of similar size and height. The palletised bottle stack was rectangular rather than square in overall shape. They had what were described as short sides and long sides. The pallets went into the depalletising machines with the short sides at the front and the rear.
11 To cut the plastic and the strapping, Mr Young would use a tool called a ‘duck knife’. It was so called because the head of the knife was shaped like the profile of a duck’s head. The knife itself was made of a hard plastic. The bill of the duck formed a point that could stab the plastic to commence a cut and the mouth of the duck revealed a exposed cutting edge formed by the limited part of a blade that was inserted into the knife.
12 Mr Young described the sequence of tasks he would perform as follows:
(a) When the full pallet was placed on the stack of red pallets, he would cut horizontally around the bottom of the pallet so that the plastic under the pallet would be left behind when the pallet was moved from the stack. He would also cut the plastic horizontally around the top of the pallet and remove it. The plastic around the bottom of the pallet would often consist of overlapping layers of plastic where the joins are sealed.
(b) Where green plastic strapping secured the pallet over the shrink wrap plastic, Mr Young would cut the strapping on the two short sides of the load and place them in the plastic bin.
(c) Once the plastic had been removed from the top of the load, it would expose a timber frame that sat on top of the layers. Mr Young would lift off the timber frame and place it in a pile next to the depalletising machine.
(d) Mr Young would then cut the plastic horizontally at the level of each masonry board on the short sides.
(e) The forklift was then used to move the pallets from the stack to the floor next to the depalletising machine. When ready, the pallet would be loaded into position on the conveyor belt. While on the conveyer, and before being conveyed into the body of the machine, Mr Young would use his duck knife to cut the plastic horizontally at the level of each masonry board along the long sides and where necessary, remove the strapping around the long sides.
(f) Once the cuts had been made, Mr Young would go up some steps to the controls of the depalletising machine. The machine was controlled by a series of buttons which activated each process of the machine; moving the pallet along the conveyor, raising and lowering the pallet, and a sweep cycle where each layer of bottles would be moved from the pallet onto the start of the bottling line.
(g) Once the conveyor moved the pallet into position, Mr Young would be standing at a platform parallel to the long side of the pallet ready to work at the level of the top layer of the pallet. The full pallet had been conveyed into the machine from his right side and when empty, the pallet would be conveyed to his left hand side to be stacked.
(h) Above where the pallet sat when it was first placed on the conveyor, and to the right of the operator, the machine had a frame on which the masonry boards that divided the layers of bottles were stacked as they were removed.
(i) Once in position, Mr Young would remove the top masonry board and place it to his right on the stack of boards. Then he would remove the plastic slip that encased the top layer of bottles. This sometimes required him to reach across to reach the far side of the plastic layer. He had a tool like a broom handle to help reach the far side.
(j) The machine had ‘nippers’ which would hold the masonry board in place during the process of removing the layers of the bottles. Sometimes the nippers were out of place and he was required to reach over and across to hold the board in place so that the bottles wouldn’t slip. Once the masonry board was secured, the machine had an arm that swept the upright bottles off the pallet. From this point, the bottles progressed to the bottling line.
(k) The machine would lift the pallet each time the top layer was swept onto the line so that Mr Young was working at the same level as the top of the depalletising machine when removing the plastic. When the pallet was empty he would lower it again and it would be conveyed out of the machine.
13 Mr Young said that on average he would process around 30 pallets a night over the course of his eight-hour shift. He said “thirty – maybe a tad more”. He said at the end of the day he would pull up sore in his arms and the legs.
14 This photo of an operator in position, before the bottles are conveyed into the depalletising machine, helpfully illustrates the machine set-up I have described.
15 The evidence introduced two different kinds of duck knives. They were similar in configuration but differed principally in the method of changing the blades. Mr Young identified a photo of a blue duck knife. These required a screw driver to remove the screw that held closed the cover over the blade. There were also photos of an orange duck knife that had a black nob which when turned would loosen the head and allow it to hinge open. This meant that no additional tool was required to change the blade in the orange knife. The purpose of using these specific types of knives was said to be to avoid the employees scratching the glass bottles when cutting the plastic. As can be seen, the “head of the knife” allows only a very narrow window or segment of exposed blade.
16 The parties agreed that the blue duck knife had been produced by the defendant at a view conducted by the parties shortly prior to trial. The evidence was that each process operator and supervisor had their own duck knife. The knives weren’t kept communally and used by different operators on shift or across shifts. Mr Young said that he began using a red knife, then changed to an orange knife, and when he finished up he was again using a red one. He kept his knife in his locker between shifts. He said in cross-examination that he did not use a blue one, but that the red ones had two types: one sort had had little screws that needed to be undone to change the blade, the other had a knob similar to the orange knives. He said that the blue knife was similar to one type of the red ones. He was asked:
“Did the red duck knife have a black nozzle like that one? (that one being the orange knife) - Yes, one of them did, yes.
And that’s the sort you had on the day of this incident, 7 April 2016, is it not? - Similar, yes.”
17 He said that when using a red duck knife similar to the blue one which had screws to be removed to change the blade, he did not have a Phillips head screwdriver available on the line and he used the blade of a picker’s knife instead to do it. A picker’s knife was one with a blade used when picking fruit or harvesting grapes. He said that at times he was not able to open the head with the picker’s knife and at those times he would keep using the knife with the existing blade.
18 He was uncertain whether he had ever used a blue knife. Mr Timmins also said she had never used a blue duck knife but gave evidence there had been red ones used. I accept that Mr Young used a red duck knife initially that was similar to the blue duck knife produced by the defendant, and in later years used an orange duck knife that did not require a tool in order to change the blades. I find that on 7 April 2016 he was using a red duck knife, of the kind similar to the orange duck knives; that is, with a knob rather than a screw.
19 The task of cutting the plastic and the strapping resulted in the blades gradually becoming blunt and at times ‘chunks’ were taken out of the blade. The plaintiff said that cutting strapping was difficult and at times when the shrink wrap plastic was doubled the plastic was more difficult to cut and “sometimes you’ve got to really reef it to get through the plastic”. As the blades became more blunt, it became harder for the blade to cut through the plastic.
20 There were two steps to replacing the blade. Each blade had a cutting edge along two sides. The plaintiff said that a blade would last between six and eight weeks in total. The blade could be turned so that each cutting side could be positioned twice, giving in total four positions where a new part of the cutting edge was exposed. On three occasions, the operator would open their duck knife and change the position of the blade so that a different area was exposed as the cutting edge. On the fourth occasion, when no new cutting edge could be exposed, a new blade was obtained and the blade replaced.
Labelling bottles
21 Other than work on the depalletising machine, Mr Young described occasions where he would work near the capping machine. He said that on occasion bottles were filled and packaged into boxes without labels. When labels arrived those boxes had to be unpacked, the bottles placed back on the line past the corking or capping machine where they would be labelled.
22 He said that boxes of unlabelled wine or cider were brought to the area by forklift and placed on a spring-loaded table. As boxes from the top level of the pallet are unloaded and the weight on the table lessens, the table is raised higher. This allowed those unloading the boxes to work at a constant height. Mr Young said that for him to lift down the boxes from the spring-loaded table he had to reach over shoulder height. He would rest the boxes on his shoulder until he got to another table where the box would be placed and the individual bottles unpacked onto the conveyor. He said that how often and for how long he would do this task varied depending upon orders and the planned work program. He said that he would be asked to do this work at least twice per month on average. Sometimes it would only be for an hour or two; at other times for a whole shift. He had sometimes done this task alone, and at other times with others also unloading and unpacking the boxes of bottles. He said that he was a reasonably short person and the task was one he found “reasonably hard” and left his shoulders and arms sore. I will refer to this work as the “labelling tasks”.
23 Other than a period off work from approximately September 2015 for a work-related hernia injury, and a resumption on light duties from November 2015 for a month or two, the plaintiff otherwise performed these tasks on the depalletising machine and the labelling tasks without complaint or report of pain until the incident on 7 April 2016.
The Incident
24 The plaintiff described what occurred on the evening of 7 April 2016. He was working, as he usually did, a shift from 4pm to midnight. Each Friday, the last two hours of his shift would be overtime, his 38-hour-week having concluded at 10pm on Friday. At around 8pm, he was preparing the pallet as it was sitting on the red pallet stack and cutting horizontally around the shrink wrap plastic at the base of the pallet. He said there was about a 5mm gap, into which “I pulled the duck knife, it wouldn’t cut, so I put more pressure on it, and as I did it, it let go, and the next minute I just got this burning sensation up my arm”. He indicated the pain extended through the whole of the right arm, from the wrist to the shoulder and right side of his neck.
25 He said he reported it to his supervisor, Gavin Lawn and was sent home. By reference to the signed injury report, the plaintiff agreed with most aspects of what was described there as to the way the incident occurred. However, he disputed one aspect of the injury report, where it was recorded that he remained at work, as he insisted he was sent home. His signature appears on one page of the form but he said the answers on the form were not in his handwriting, although he confirmed he had provided information about what had happened.
26 In cross-examination Mr Young agreed that he did not check the blade at the start of every shift and did not look at it at the start of his shift on 7 April 2016. He said when he used it on 6 April 2016, “it wasn’t as sharp as it should be, no”. He was asked whether on 6 April he asked for a new blade. He said generally when he had asked for new blades there were times they were not provided, but didn’t think he asked for a new blade the day prior to the incident. He thought the blade had been flipped over already, a week or so before the incident. He agreed he could not say how many times that particular blade had been flipped. He agreed he did not inspect the blade after the incident.
27 Mr Young said that the new blades were kept in the supervisor’s office and when a new blade was needed he would have to ask the supervisor to get a blade from the office. He said he would not go to the supervisor’s office by himself as they were not allowed, but he would go with a supervisor who would go in and locate the blades for him.
28 In addition to the evidence outlined above describing the work and the incident, the plaintiff said that the plastic shrink wrap might at times be wet and this would cause the blades to rust. He said when he needed a new blade he would look for a supervisor or wait to ask on a break. He never went into the supervisor’s office by himself to get blades and would always ask a supervisor and usually wait at the door while a blade was located and retrieved. There were, he said, occasions when he asked for a blade but one was not provided because they were out of stock. He said he was not given a new duck knife when the only problem was the blade.
29 Mr Krake said he did not have a duck knife when he worked there but he was familiar with the tasks undertaken by the operators using duck knives. He described the requirement to cut down fairly thick plastic which would become harder as the blade becomes more blunt over time. He said that the procedure for operators to replace blades in the duck knives was that they would ask their supervisor. He said, “[t]hey could, at the start of the shift, or a meal break, or they would either see the supervisor in the supervisor’s office at the start of the shift or during the shift if they felt they needed a new blade.” He said that stopping the line in order to go and get a replacement blade was not desired by management. He said that the blades were not kept in a consistent place within the supervisor’s office and that at times he had difficulty locating the replacement blades and might have to call the head supervisor. He speculated that they were kept in the supervisor’s office for safety reasons but said he did not know of a reason why blades could not be stocked at each individual operator’s station or in a tool box on the filler line at the filler operator’s table. He said it was possible that at times there was no stock of blades available in the supervisor’s office.
30 When cross-examined by Ms Spencer, he agreed that if an operator needed to step away during a shift while the line was running, they would usually “sing out” to the supervisor or the forklift driver who would watch the line until their return. If a new blade was needed urgently, this was possible. He said that the tool box at the filler station used to hold basic tools, including, he thought, a screwdriver.
31 Ms Timmins also worked with Mr Young at Best Bottlers. She was familiar with duck knives. She said they were kept in the supervisor’s office, either on or under the bench or in the filing cabinet. The office was not very tidy and there were times when she was asked for a blade when it was difficult or impossible to find them. At those times she would sometimes give the operator her knife or the operator would have to wait until such time as blades were located.
32 She said most operators got the blades themselves, but she recalled a ‘few times’ when asked that she could not locate blades. She also nominated the start of the shift or during breaks when operators would get replacement blades and said Mr Young could not leave Line 4 while it was in operation. She didn’t recall a toolbox near the filler line but did recall a cabinet where blades could have been stored.
33 Ms Timmins also said that cutting the strapping around the pallets caused the duck knife blades to break. By that she meant that chunks were taken out of the blade. When the blades were in such a condition she described them as gripping the thick plastic or strapping so that it wouldn’t cut.
34 In cross-examination, Ms Timmins said she could not recall any policy for where new blades were kept, although there was a policy for disposal of various used blades. She agreed it was not easy to leave the line other than on breaks and if it was urgent to do so an operator could get a forklift driver to step in if that driver was appropriately trained on the line, or a supervisor if one was nearby. However, it was not always possible to get someone to step in and cover an absence. She recalled a toolbox near the labeller’s table which included some tools, including screwdrivers. She agreed with Ms Spencer that it was “rare” not to be able to locate blades.
35 Mr Young also described various tasks involving reaching above shoulder height. These included removing the plastic and the timber frame from the top of the pallet. He said because it was sitting on the stack of red pallets, and because he is only five-foot-seven or eight inches, the top of the shrink wrapped pallet was above his shoulder height. He didn’t know the weight of the frames. The job clearly involved a lot of cutting of the plastic in horizontal lines, at various heights. Mr Young, being right arm dominant, did this using his right arm. In the depalletising machine there was forward-reaching tasks. The need to reach to the far side of the pallet to remove the strip of plastic around each layer of bottles was lessened by Mr Young using a stick, such as a broom handle. The task associated with significant reaching was the removal of the masonry board and lifting it onto the stack that was located forward and to the right of the plaintiff. The lift had to avoid the four upright pillars that confined the stack, and as the stack grew higher, the reach required increased. The reach involved him turning around as he removed the board from the pallet and then a right sided reach to the stack. The stack can be 75 to 100 boards high.
The claim in negligence
36 The allegations of negligence surrounding the incident focused on the condition of the duck knife, particularly whether the knife being used was too blunt to permit the plaintiff to safely remove the shrink wrap, and thereby placing strain on his upper limbs. It was submitted that the duty of the employer in providing a safe system of work required it to provide a reliable set of usable blades for the knives at all times. The plaintiff’s case was that new blades were not readily made available. The availability was limited by the fact that they were kept in the supervisor’s office rather than on or near the lines, and by the fact that the supervisor’s office was locked at times and that blades could not always be found by the supervisors, meaning requests for a new blade were not always met. The availability of a screwdriver to open those held closed by screws also impacted upon the ability of the workers to change the blades of their duck knife.
37 The allegations of negligence and breach of the Regulations surrounding the work processes focused on the force and repetition of the reaching required in undertaking the tasks on the depalletising machine. This included: the cutting of the strapping and the plastic; the reaching to remove the plastic and timber frame on the top of the pallets of bottles; the reaching associated with removing the plastic around each layer and the masonry board between each layer of bottles when in the depalletising machine; the forward and sideways reaching to place the masonry board on the elevated stack above the machine; and the reaching to hold the masonry boards in place when the nippers didn’t do so. The plaintiff submitted that he was required to cut down 4-5 pallets per hour without any rotation. The other aspect of the work process implicated was the lifting and reaching associated with the labelling tasks, in particular the lifting down of boxed wine bottles to be unpacked which was said to be both heavy and repetitive as described by both Mr Young and Ms Timmins.
38 It was also alleged that such tasks of cutting, reaching and lifting constituted hazardous manual handling within the definition under the Regulations. It was submitted that no documentary or oral evidence has been given of any risk assessment as is required for tasks containing hazardous manual handling. The failure to identify and control the risk of injury associated with hazardous manual handling as required by the Regulations was also a way in which negligence was particularised.
39 Given the alternate claims in negligence and the defendant’s submission that any injury arose only in the incident, it is convenient to canvas the nature of the injury sustained and the opinions as to causation.
Injury
40 Although Mr Young complained of general soreness associated with his work, he agreed that he did not seek medical treatment, take time off or otherwise make a complaint that his work tasks were causing soreness prior to 7 April 2016. He agreed that he only identified the incident as causing him injury in his WorkCover claim form and the incident report.
41 The plaintiff submitted that the question of whether the work process by either its repetitive, or heavy and forceful nature more generally, was also a cause of his injury was a matter of medical opinion as well as the plaintiff’s own evidence about the onset and the occurrence of symptoms. The medical evidence on the question of causation of injury broadly fell into two camps; one implicating the incident only and the other implicating only the general nature of the work.
42 Amongst Mr Young’s treating doctors the following opinions were held:
(a) Ms Nitschke, physiotherapist, said that “Part of Stephen’s duties was to repeatedly cut through cling pallets with a knife which was over shoulder height and it is believed that this lead to his right shoulder and arm injury”.
(b) Dr Issa, general practitioner, who said “Mr Young’s injuries at work due to heavy lifting and repetitive stress activities at the shoulder and elbow joints are highly likely to have contributed to his right shoulder rotator cuff tears and right elbow epicondylitis with the resulting depression being an associated factor”.
(c) Mr Pak, orthopaedic surgeon, who said as to causal relationship:
The injury to Stephen’s shoulder during work was an acute event that resulted in extensive labral tearing extending into the biceps anchor. The degenerative changes of the acromioclavicular joint and tendinosis of the rotator cuff tendons is likely to have been pre-existing, but the injury has aggravated his symptoms. Cubital tunnel syndrome can result from overuse and swelling of the ulnar nerve within the cubital tunnel at the elbow. It is feasible that work is a contributing factor. Immobilisation with the right arm in a sling can aggravate symptoms in patients that are already predisposed to this condition (cubital tunnel syndrome).
43 Mr Pak obtained a history of onset of acute pain in the shoulder in 2016 when ”cutting down some empty bottle pallets using a sharp instrument”. Neither Ms Nitschke nor Dr Issa mention any incident in the reports available. It is not clear whether or not they had a history of symptom onset.
44 In relation to medico-legal opinions, the following evidence was relied on by the plaintiff:
(a) Associate Professor Love, who provided two reports. In the first report he described a history of developing symptoms in 2016 when he was cutting plastic using a duck knife. He was asked a specific question regarding causation regarding both the incident on 7 April 2016, and the repetitive and demanding nature of his work duties. He concluded that he considered the injuries were caused by the incident. He maintained that opinion in his second report.
(b) Dr Sillcock, consultant occupational physician, who examined Mr Young in December 2019. She obtained a history of the types of duties undertaken by Mr Young. In that context, she obtained a history of the injury on 7 April 2016, namely when Mr Young pulled hard on his knife after it became stuck while cutting a plastic wrapped pallet. She too was asked the two-part question: caution from work process generally; and causation from the incident. In her opinion, “Mr Young’s injury was caused by the incident of 7 April 2016 rather than being due to repetitive work”.
45 It was clear that at least Dr Sillcock had each of the three treating practitioner opinions set out at para 42. I infer the reports were also sent to Associate Professor Love, although his report did not specify what was contained in the large quantity of accompanying material.
46 The defendant relied on Mr Doig, who in his first report dated 25 May 2016 described a traction type injury with immediate pain sustained when, while ripping plastic, the knife became stuck and Mr Young gave it a wrench. At that time, a precise diagnosis was unclear. Once the investigation results became available Mr Doig clarified the diagnosis and included an aggravation injury of a pre-existing arthritic acromioclavicular joint. Mr Doig, however, maintained the causal link with the workplace incident in further reports.
47 In this case, there is a consensus of opinion amongst the three specialist medico-legal practitioners as to the incident being a cause of the plaintiff’s injury and not implicating the work process more broadly. Their view is clear, particularly in the case of Dr Sillcock and Associate Professor Love who were specifically asked about the role of heavy and/or repetitive work, and who did not implicate such work processes generally. This opinion was also consistent with that of Mr Pak, the treating orthopaedic surgeon. The symptoms of pins and needles in the arm commenced at the time of the incident. The pathology explaining them was revealed by ultrasound and later in 2016 by MRI. I am satisfied that the elbow injury, like the shoulder injury, arose at the time of the incident and the task he was performing at the time was a cause.
48 I accept that each of the work process and an incident may independently be a cause of injury. I would ordinarily give close consideration to the opinion of treating general practitioners, particularly given that Dr Issa has been treating the plaintiff since some time prior to April 2016. However, the absence of any relevant history as to onset of symptoms and the lack of reference to the particular incident makes it impossible to evaluate Dr Issa’s conclusion outlined above. This is not to criticise Dr Issa as the report was addressed ‘to whom it may concern’ and would appear not to have been written not with this court process in mind, but rather with the rehabilitation needs of Mr Young in the immediate future. Similarly, the opinion of the physiotherapist on causation was not accompanied by some reasons for that conclusion, such that I could confidently understand that it was any more than a bald statement that the injury was work-related without consideration of the mechanism. Absent any further reasoning from Dr Issa, I prefer the conclusion reached by all medico-legal witnesses that the incident is a cause of the plaintiff’s injuries without the implication of the work process. I am not persuaded that the work process, whilst giving rise to a risk of musculoskeletal injury, was also a cause of the plaintiff’s injuries.
Findings of fact
49 I accept that the Plaintiff suffered injury in the incident on 7 April 2016 when he needed to apply additional force to the duck knife he was using to cut plastic. I find that at the time he was using a red duck knife that had a knob used when repositioning or changing the blade, similar to the photograph of the orange duck knife below para 15. I accept that while the cutting edge was not as sharp as it should be, it was not causing him any particular difficulty prior to the incident and he did not judge there to be any need to check the blade, reposition the blade or request a new blade that day or during the shift the previous day.
50 I found Mr Young to be an honest and straightforward witness. I accept his evidence that at times when he requested a new blade from the supervisor, the blades could not be located or were not available. On those occasions he continued with the existing blunt blade for some indeterminate time. I accept that where it was necessary to cut strapping, this was harder on the blade and required greater force than when cutting the plastic. His evidence on this question was supported by the evidence of supervisors, Mr Krake and Ms Timmins, who had both worked at Best Bottlers for lengthy periods. The defendant called no contrary evidence. Ultimately, the system of storage of the blades and their replacement on request is not contentious.
Analysis
51 The employer has a duty of care in devising a safe system of work. This extends to the provision of suitable tools and premises. The reason for this non-delegable duty was described by Mason J in Kondis v State Transport Authority:
The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters.
52 The employer is to take reasonable care to avoid exposing employees to unnecessary risks of injury. It includes not only devising the system of work that is to be used, but also the implementation of that system and the provision of appropriate tools to carry out the tasks required.
53 The case proceeded on the unspoken, but undoubtedly correct, basis that the risk of injury from using blunt or damaged blades was a foreseeable one, as demonstrated by the need to change the cutting edge regularly. The adequacy of the employer’s response to that risk really lay in the answer to two questions:
(a) Did the system, operating as it was designed to, adequately respond to the risk of injury from using blunt cutting blades?
(b) If it was adequate, was the system operating as it was designed to 6 and 7 April 2016?
54 The first question had within it a further consideration - whether timely access to new blades should be a matter of judgment of each worker as to when the blades should be repositioned and changed?
55 The plaintiff submitted that a system that stored replacement blades in the supervisor’s office and not on the production line meant that the employer required, or permitted, workers to continue using duck knives that were blunt when it was unsafe for them to do so because they could not be replaced in a timely way. He submitted that this was a disorganised and shambolic system. The plaintiff was required to use a blunt duck knife because on occasion the replacement blades and, where necessary, the tool needed to change the blades, were not made available to him.
56 Because of my conclusion regarding the cause of the plaintiff’s injury, the negligence claim focuses on the evidence of the system as it operated in April 2016 rather than more broadly over time. In the absence of a request for a new blade on 6 or 7 April 2016, I am not satisfied that the incident occurred because the system of work required Mr Young to continue to cut with a blunt duck knife. Indeed, the evidence did not go so far as to establish that a new blade and not simply a flip or repositioning of the existing blade was needed at that time.
57 The further question then is whether the employer’s system of work was reasonably safe. That system left it to the judgment of a worker as to when to change a blade and so request a new one. He, and other workers, would exercise a degree of judgment as to when that blade would be flipped and replaced.
58 In assessing whether this system of replacing new blades for duck knives, regardless of where they might be stored, was negligent it is important to identify a number of features relevant to this question. First, each person who needed to use a duck knife had their own dedicated tool. They were not shared or rotated among staff and were kept in worker’s locker when not in use. This meant that the best, and really only, person to assess when the cutting blade needed to be changed was the person to whom the knife was allocated and who was using it on a daily basis. This must be a matter of judgment. It is difficult to see that this judgment could be better made by someone other than the user of the tool. Second, three times out of four, the cutting edge of the blade could be changed by the operator him or herself at a time of their choosing by opening the head of the knife and flipping the existing blade. Leaving aside the issue of availability of a screwdriver to do so, which falls away given my finding on the type of duck knife that Mr Young was using by April 2016, a blade may be repositioned by the person using it at any time. Again, it is the operator who knows when they are on the last cutting edge of a particular blade. Third, a new blade would be needed on average every six to eight weeks; that is somewhere between approximately six and ten times per year. Fourth, the blades were purchased in small packets of approximately ten or twelve and were cheap to purchase. Individually and in their multiples as packaged, the blades were very small items.
59 In his evidence, Mr Young described the blunting as occurring over time and recognised the evening before that the blade was “not as sharp as it should be”. In answer to interrogatories, he described the blade at the time of the incident as “very blunt”. This was not based upon any inspection of the blade either prior to or after the incident. In answer to an interrogatory he was unable to say when the blade had last been rotated or replaced by him, although in his viva voce evidence he thought it was flipped about a week before. In his evidence in chief, Mr Young described no difficulty in using the knife on the day prior to the incident. When asked in cross-examination why on 6 April 2016 he did not ask for a new blade he said, “Because they never gave you a new blade until it was really blunt, and you couldn’t cut anything”. However this statement has to be viewed in the context of his evidence overall. Two questions earlier he gave evidence that he did not know why he had not asked for a blade on 6 April. Mr Young reflected, ”cause it was still cutting, I suppose”. The answer must also be viewed in light of the uncontradicted evidence that the process for replacing a blade was commenced by a worker’s request.
60 Mr O’Sullivan submitted that I should look at the absence of a request prior to the incident in the context of Mr Young “not being able to get them often when he needed them”. I do not accept this submission. There was no evidence that the employer refused to replace blades when requested or discouraged more frequent requests for new blades.
61 The overall impression I have from the evidence of Mr Young and both supervisors is that the employer at times was unable, rather than unwilling, to locate a replacement blade when one was requested. The difficulty arose particularly if the supervisors’ office was messy or if replacement stock had not been ordered. Workers were able to seek out new blades before or after shift, or during breaks. While stepping away from the line was discouraged, Mr Young did not go so far as to say he was instructed to continue using a blade that he thought required replacement until an authorised break in his shift. Nor did the evidence go so far as to establish that not being able to get a new blade when one was asked for was a frequent problem. Rather, the occasions when this happened seemed relatively isolated or rare.
62 Whilst there may have been particular occasions where the system did fail to deliver a new blade promptly on request, I am not satisfied that Best Bottlers unreasonably failed to adopt a proper system of work by storing the blades a short distance away from the immediate production lines. The evidence was that the supervisors’ office was a distance of a minute or two walk from the production area. The fact that the system on occasion did not operate as it should may speak of negligence on that occasion but not as to a systemic inadequacy in storage and distribution. At the time of the incident, the system as devised was working as intended.
63 The plaintiff submitted that an alternative and adequate system would have been to locate a supply of new blades on the production line in a cabinet or tool box, or on individual stations. Given my conclusion that the system devised by the employer to store blades centrally and provide them on request was reasonable when maintained and enforced, it is not strictly necessary to look at the alternative system proposed by the plaintiff. However, it is not immediately apparent how shortcomings in ordering sufficient stock to be available or the misplacing of blades so they cannot be located when required would be ameliorated by storage on the line. While Mr Krake speculated that there might be safety reasons not to do so, Ms Timmins could not see any reason why this was not a possible system. No evidence canvassed the practicalities of locating small items with no designated storage space and which are accessed perhaps once per month or less. It seems to me that problems of locating available new blades when needed may not necessarily be improved by such a system and a plethora of locations for stored supplies may in fact increase any problems in maintaining adequate supply.
64 The other aspect of the system for replacing blades was the need for each operator using the duck knife to exercise a level of judgment about when a new cutting edge was needed. In that regard, the plaintiff submitted that instruction and training was inadequate. The plaintiff knew and understood how to change the blade of the duck knife. He said he learnt this, like the other tasks he had to undertake, by demonstration. He knew the particular difficulty cutting where the shrink wrap “doubles over from when they meld it”. By “meld”, I took the plaintiff to be describing the process of sealing the plastic by using heat to fuse it and thereby securing the wrapped pallet.
65 The plaintiff submitted that there should have been an instruction to change the blades regularly and for the employer to provide an absolute time frame for change.
Mr O’Sullivan suggested blades be changed at least on a weekly or fortnightly basis. If by this Counsel meant change by both flipping and replacing them, the time frame would fix as an outer limit the average ‘life’ of each exposed blade. If it only refers to a change of blade it seems to me that such an instruction ignores the nature of the tool where each blade provides four sharp cutting edges, each of which lasts for a period of between one and two weeks.66 An arbitrary time for replacement, or even for flipping the blades would not remove an element of judgement for earlier change as needed. The suitability of blades was not just affected by blunting over time but also from the chunks being removed from resistance either from strapping or from thick layers, or the variable condition of the shrink wrap. Ms Timmins said on occasion when she loaned her duck knife to other workers it would sometimes be returned damaged, with deterioration of the exposed cutting edge often occurring over the course of a single shift. Whether such an instruction would have made any difference in this case seems speculative given the plaintiff’s answer that he thought he would have flipped the blade a week or so before. An element of judgment as to an earlier replacement of the cutting edge will always remain. The plaintiff has not been able to demonstrate that an instruction to change the blade after a fixed period of time regardless of its condition would have removed or lessened the risk of him sustaining his injury.
67 This is not to say, as the defendant submitted, that Mr Young is at fault or is himself negligent by failing to ask for a replacement after recognising the condition of the blade on the shift before. Not to do so was a matter of judgment for him. He described no particular difficulty cutting on 6 or 7 April 2016 prior to the incident. When the knife initially wouldn’t cut and he then proceeded to put more pressure on the knife, he was acting in accordance with the system of work and, by exerting additional pressure in making the cut, misjudged the situation. In doing so, had I found the employer’s system of storage and replacement of blades to have been negligent, I would not have found Mr Young to have been contributorily negligent.
68 The allegation of breach of statutory duty was relevant in two ways. First, it was a particular of the claim in negligence and statutory breach was one way in which the departure from the standard of care owed to employees at common law might be proved. This was part of a broader inquiry about a risk of injury and whether reasonable measures have been taken to protect workers from that risk; one reasonable measure being compliance with the statutory obligations. In that inquiry, the existence of an alternative system of work was relevant. Second, it provided a right of action to recover damages for breach.
Breach of the Regulations addressing manual handling
69 I turn now to the action based upon breach of statutory duty.
70 The Regulations require employers, among others, to identify particular hazards associated with various tasks performed by employees, and to take steps to minimise the hazard identified and therefore the risk of injury that is posed. The relevant obligations are those on an employer to take specific steps in respect of hazards associated with manual handling tasks contained in Part 3.1 of the Regulations. A breach of 3.1.1 Hazard Identification, 3.1.2 Control of risk and 3.1.3 Review of risk control measures are alleged. The purpose of hazard identification in relation to manual handling is to control the risk of a particular type of injury, namely musculoskeletal disorders.
71 The Regulations define manual handling. Not all manual handling tasks impose obligations under the Regulations. Only those tasks which are within the definition of hazardous manual handling are covered. The Regulations describe manual handling as “hazardous manual handling” if it is:
(a) manual handling having any of the following characteristics -
(i) repetitive or sustained application of force;
(ii) repetitive or sustained awkward posture;
(iii) repetitive or sustained movement;
(iv) application of high force being an activity involving single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;
(v) exposure to sustained vibration;
(b) manual handling of live persons or animals;
(c) manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold.
72 The relevant risk that the measures guard against is the risk of sustaining a musculoskeletal disorder. This term is defined as:
An injury, illness or disease that arises in whole or in part from manual handling in the workplace, whether occurring suddenly or over a prolonged period of time, but does not include an injury, illness or disease that is caused by crushing, entrapment or cut resulting primarily from the mechanical operation of plant.
73 Regulation 3.1.1 of the Regulations provides:
(1) An employer must, so far as is reasonably practicable, identify any task undertaken or to be undertaken, by an employee involving hazardous manual handling.
74 Regulation 3.1.2 prescribes measures to be taken to control the risk. It provides:
(1) An employer must ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.
(2) If it is not reasonably practicable to eliminate the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee, an employer must reduce that risk so far as is reasonably practicable by—
(a) altering—
(i) the workplace layout; or
(ii) the workplace environment, including heat, cold and vibration, where the task involving manual handling is undertaken; or
(iii) the systems of work used to undertake the task; or
(b) changing the objects used in the task involving manual handling; or
(c) using mechanical aids; or
(d) any combination of paragraphs (a) to (c).
(3) If it is not reasonably practicable for an employer to reduce the risk of a musculoskeletal disorder associated with a hazardous manual handling task in accordance with subregulation (2), the employer may control that risk by the use of information, instruction or training.
75 Only if the control measures in subsection (2) above are not reasonably practical to reduce the risk may an employer control that risk only by the use of information, instruction or training.
76 The plaintiff tendered a document headed BEST BOTTLERS – TOTAL OH&S RISK ASSESSMENT 2011. It was a three-page document with tables for different parts of the premises. Each table had columns identifying production steps, the tasks required, the hazards identified, the control measures, and the procedures, forms and permits required. In the table relevant to the bottling area, the document identified a step as ‘Depalletize”. Tasks identified were: inspect bottles; cut wrapping; and forklift. Hazards were identified as glass; steps; and forklifts. Control measures were protective glasses; yellow warning strips; anti-slip hi-vis; and a forklift policy of only licenced drivers. The plaintiff tendered this document as evidence that no identification of hazardous manual handling had occurred involved with the depalletising machine tasks including cutting the plastic wrapping or strapping.
77 The terminology of “risk assessment” comes from the 1999 Regulations which then required an employer to “ensure that an assessment is made to determine whether there is any risk of a musculoskeletal disorder” under regulation 14(1). This was done after identification of tasks involving hazardous manual handling (regulation 13) and before the obligation to eliminate or control risk (regulation 15). The use of a document described as a “Risk Assessment” may be evidence of hazard identification and/or steps taken in order to control risk, but the inquiry is not whether the employer has carried out an appropriate risk assessment. What must be borne in mind is that the statutory obligation is in fact to identify tasks of a particular type and to put in place measures to control the specific risk of musculoskeletal disorder. These are questions of fact.
78 The defendant led no other evidence that the employer had identified, as required by Regulation 3.1.1, whether or not the task of cutting the plastic, or any of the other tasks performed on Line 4, amounted to hazardous manual handling. It was not suggested that it was not reasonably practical to do so.
79 The defendant, with some reservation, accepted that the cutting of the plastic of the pallets was capable of being hazardous manual handling within the meaning of the Regulations, as it was a task that might be sufficiently repetitive and of sufficient force. In my view, that concession was properly made. The cutting of plastic was an activity to lift, lower, pull and move the plastic wrapping in order to remove it from around the pallet. It was manual handling as defined. The plastic removal process involved tasks when the pallet was on the stack of red pallets, when it was on the ground and while it was processed on the depalletising machine. The tasks were repetitive; occupied a significant amount of the time; and at times, involved movement in a bent and reaching posture, which was especially awkward when cutting at the lower and upper limits of the pallet. It did on occasion, particularly when cutting the melded shrink wrap plastic and strapping, also require the application of force. The force used was described by the plaintiff as the need to “reef”. As such, the tasks fell within any combination of (i), (ii) or (iii) of subparagraph (a) of the definition of hazardous manual handling. I find that the task that the plaintiff was undertaking when he suffered injury on 7 April 2016 was hazardous manual handling as defined by the Regulations.
80 Had the employer identified that the handling of the plastic wrapping around pallets was hazardous manual handling, it was required to eliminate or control the risk of musculoskeletal disorder occurring in accordance with regulation 3.1.2.
81 The defendant, having not identified any tasks involving hazardous manual handling, led no evidence of giving attention to controlling the risk. Nor did it lead evidence of there being no practicable means of doing so and therefore, it controlled the risk by information, instruction or training in accordance with the Regulations. The employer tendered the Standard Operating Procedure for the palletiser on Line 4. That document described the procedures for each step on the line. It had an instruction to prevent back injury by lifting to bend at the knees while keeping the back straight. There was no information in this document that gave any training, information or instruction as to how to minimise the risk of musculoskeletal disorder arising from cutting the plastic around the pallet.
82 I find that the employer has breached its statutory duty as provided by regulations 3.1.1 and 3.1.2. Given the lengthy period of time over which the plaintiff was performing those hazardous manual handling tasks, a period of some eight to ten years, I am also satisfied that there was no review of measures in place, so regulation 3.1.3 is also breached.
83 The defendant did not contend that, if the task undertaken by the plaintiff was found to be hazardous manual handling that the Regulations did not apply to it and accepted that a breach gave rise to a right to seek damages. It contended that the Regulations were irrelevant because:
(a) In the absence of expert evidence, it is not demonstrated how or in what way any alleged breach of the Regulations is causative of the plaintiff’s injury;
(b) There is no evidence to suggest what alternative method could be employed to do the task that the plaintiff was undertaking.
84 I do not accept that the regulations are irrelevant or that the plaintiff’s claim on this basis fails because the plaintiff has not demonstrated that the employer’s breach is causative of injury. The defendant’s submission equates proof necessary to show a breach of the common law duty of care with that which is necessary to demonstrate a breach of a statutory duty.
85 Within the context of the negligence claim it remains for the plaintiff to demonstrate what would amount to a “proper system of work”. The comment of Windeyer J over fifty years ago remains true:
For a plaintiff to succeed it must appear, by direct evidence or reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which Counsel referred, “What is ‘a proper system of work’ is a matter for evidence, not for law books”.
86 The passage was cited with approval recently in Govic v Boral Australian Gypsum (Govic). In Govic, it was also noted that:
Breach of regulations intended to set safety standards may evidence a want of reasonable care.
87 The quotes above were directed at consideration of the claim in negligence and the way in which breach of a duty imposed by statute or regulation might assist in proving negligence. Proof of non-compliance with the Regulations may also prove an absence of reasonable care which is a cause of a plaintiff’s injury.
88 Where a personal right to damages for injury for breach of a regulation exists, as here, damages are recoverable if breach of the relevant regulation demonstrated and the injury that occurs is one within the definition of a musculoskeletal disorder. In a claim of this nature, it is not a necessary element of the cause of action that a plaintiff also demonstrate that, had the employer complied with its obligation, some other system of work or equipment would have been identified and the risk of injury lessened. It may be that no practicable alteration of the work system can be devised to lessen the risk of injury. The fact that 3.1.2(3) requires training and information where an alteration of the system is not possible directs attention to those circumstances.
89 The Regulations are remedial legislation passed for the protection of employees and so are construed to afford the protection that Parliament intended. They require an employer to undertake prescribed tasks in relation to certain hazards in the workplace. In Govic, when considering the statutory breach claim, which also involved Part 3.1 of the 2007 Regulations, the court described the objective of the Regulations as:
119 Mr Doig apparently considered driving, noting that long distance driving might require him to have breaks. Dr Sillcock thought he had no realistic capacity to work. The difficulty that Mr Young will face in identifying work within his residual physical capacity for which he has, or might develop through training, appropriate skills does seem challenging. An initial vocational assessment identified gardening, nursery and agricultural work consistent with his work experience prior to Best Bottlers. However, all doctors agreed those for which he was qualified were beyond his physical capacity. A second assessment identified weighbridge operator, console operator, traffic controller and indigenous preservation operator. Doctors were asked to comment on some of those options. Insofar as weighbridge operator was thought to be within Mr Young’s physical limitations, I expect there are limited jobs of this type in the Mildura area that might permit such a capacity to be practically exercised.
120 I accept there will be some jobs available within Mr Young’s residual physical capacity including some which may require relatively straightforward training, but that the range of opportunity for him to exercise that capacity is quite narrow.
121 Additionally, the psychiatric opinion accepts a continuing work capacity but both
Dr Schutz and Associate Professor Varma limit it to approximately 12 hours per week. I accept that presently Mr Young is quite unmotivated to seek work and has been provided with little practical rehabilitation to assist him to identify and obtain a place in the working community. That motivation seems to have impacted on his ability to do his recommended exercises regularly as commented on by Dr Sillcock. However, when in work, Mr Young has in the past demonstrated great resilience in remaining in the workforce, despite the challenges of various family circumstances. In my view, if Mr Young is able to find work that is within his physical capacity it seems likely that this will improve, rather than be further limited by, his mental health. It is the physical limitations that predominantly impede Mr Young’s participation in the work force.122 Accepting that he has been unable to work between 7 April 2016 and the time of trial, his past loss calculates at $803 by 256 weeks. To this is added superannuation of $93 by 256 weeks. I would allow a total past loss of $230,000. There are no other illnesses or conditions that would require a reduction to this figure.
123 Mr Young enjoyed his work and although his work history prior to commencing there was patchy, his steady work history in that role bespeaks a man whose previous ability to work was constrained by available work. When an opportunity for available and steady work was presented, Mr Young took it and enjoyed the financial security and satisfaction that it provided. I accept that he intended to work to the age of 67. If totally incapacitated, the mathematical calculation for future loss of earning capacity and superannuation to an age of 67 years would produce a figure of $313,600. I would reduce this figure to $280,000 to allow for the narrow residual capacity that may be exercised in the future.
124 Given the heavy and physical nature of his work there is some prospect that he may not have been able to continue in such a role until his intended retiring age and if this were so, finding other less physical work as an alternative may become, as this injury has shown, more difficult. In those circumstances, together with the psychological vulnerability discussed above it is appropriate to make allowance for the vicissitudes at a higher rate than might usually be discounted. The plaintiff submitted that a discount of 20% would be appropriate on calculations of future total loss. The defendant submitted an overall reduction of two-thirds to the calculations, past and future, to take account of the variety of factors affecting capacity; including motivation and the lack of attempt to seek work and the medical opinions, particularly of Mr Pak, who expected a return to jobs consistent with his pre-injury capacity.
125 In light of the views I have formed about the various medical opinions and the evidence of the plaintiff, I consider it appropriate to allow a figure of $225,000 for future economic loss.
126 Damages totalling $635,000 will be awarded before any statutory reduction, any agreed Fox v Woods damages or allowance for interest.
127 I will hear from the parties as to the appropriate form of orders.
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