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  • Unreported Judgment

Caird v State of Queensland

 

[2004] QSC 217

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

30 July 2004

DELIVERED AT:

Brisbane

HEARING DATES:

5 May 2004; 6 May 2004; 7 May 2004; 15 June 2004; 16 June 2004

JUDGE:

Chesterman J

ORDER:

1.Judgment in favour of the plaintiff

2.Damages assessed at $127,900.00

3.No order as to costs

4.Leave to appeal on costs granted

CATCHWORDS:

WORKERS’ COMPENSATION – where plaintiff injured in the course of working as a slaughterman – whether the defendant failed to provide a safe system of work by not ensuring that all slaughtermen employed at the abattoir wore cut-resistant gloves and that all beasts were adequately spaced on the slat conveyor – whether the plaintiff is entitled to an award of damages under the WorkCover Queensland Act 1996 (Qld)

WorkCover Queensland Act 1996 (Qld), s 312, s 314, s 317

Workplace Health and Safety Act 1995 (Qld), s 36

COUNSEL:

Ms C C Heyworth-Smith for the plaintiff

Mr J S Miles for the respondent

SOLICITORS:

Murphy Schmidt for the plaintiff

Eardley Motteram for the defendant

  1. The plaintiff, who was born on 15 February 1963, spent most of his working life in abattoirs where he was employed as a slaughterman or knifeman. On
    1 September 2000 he was employed in that capacity by Queensland Abattoir Corporation at Murrarie.  On that date he suffered a severed laceration to his left wrist and hand while working at the abattoir.  He claims damages alleging negligence and breach of contract of employment. The Corporation went into administration and the defendant has succeeded to any liability the Corporation might have to the plaintiff.  I will refer to the Corporation and the defendant indistinguishably as ‘the defendant’. The facts relevant to the claim, and the determination of whether the defendant is liable to pay damages, are small in scope, but before they are analysed it is convenient to describe the part of the abattoir in which the plaintiff was injured and the task he was performing.
  2. The plaintiff was working in what was called the kill floor which is where the animals are killed, bled and prepared for skinning and butchering. Although the abattoir processed a variety of livestock the case concerns cattle.
  3. The animals are brought to the commencement of the process in a v-shaped sling which confines and elevates them above the ground. The sling is in the form of an endless belt which moves the animals from a pen to a point where the ‘knocker’ uses a compressed air gun to fire a stainless steel bolt through the forehead into the brain. The moving sling then tips the animal onto a table, the surface of which consists of moving slats which take the beast away from the knocking area and past a number of knifemen who perform various procedures on it. As the carcass moves along the table its throat is slit longitudinally to allow blood to escape. At about the same stage in the process another workman with a high pressure water hose washes dirt and excreta from the area of the anus. Then the animal passes under and comes in contact with three probes suspended from an overhead structure which deliver a substantial electric current to the beast. This apparatus is called the stimulator though its purpose is to make the beasts quiescent. After the carcass has passed through the stimulator another knifeman reaches into the severed neck and by the use of his knife separates the weasand from the trachea. The weasand is the gullet or food pipe to the stomach. If it is not blocked, when the animal is suspended by its hind leg for butchering, partly digested food would fall on to the floor of the abattoir with obvious risks to health and hygiene. Having made the separation by means of an incision on each side of the weasand he grasps it and pulls it out of the neck cavity. The man next along places the weasand inside a stainless steel pipe known as a rod. The end of the rod has a rubber ring which closes off the weasand stopping the stomach content from disgorging. Once the weasand is inside the rod it is pushed its full length inside the beast and the ring is released by a trigger. Next a chain is placed around one of the hind legs and the animal is lifted by the chain from the table and it moves, suspended, into another part of the abattoir where the process of dismemberment begins. The work of removing the various cuts are called ‘follow on tasks’.
  1. ‘Rodding’ is the name given to the process of locating the weasand, freeing it from surrounding tissue, pulling it from the beast and clamping it with the rod. The task used to be performed by one man but was divided into the two parts I have described. When the plaintiff was injured the task was performed by two men, both called rodders.
  1. At the relevant time the plaintiff was engaged in performing the first of the rodding tasks, that is freeing the weasand and pulling it out so it could be clamped by the next man. As the rodders stood beside the table animals moved from their right to their left. The plaintiff had about 30 seconds to perform his task. The stimulator was to his right.
  1. A consequence of knocking is that the beasts convulse: heads and legs jerk and twitch and the whole beast moves quite violently. The process of stimulation by electric current is meant to nullify this nervous reaction and to relax the beast. There are two benefits. It removes a source of danger and it produces more tender meat.
  1. The plaintiff was injured when a cow passing through the stimulator convulsed and its head struck the plaintiff’s right arm when he was in the process of making an incision to free a weasand. The knife was forced into his left wrist causing severe injury.
  1. Two aspects of the defendant’s operation are called in question. The spatial separation between beasts on the table and the provision of cut-resistant gloves to the plaintiff and those engaged in similar tasks. The plaintiff’s case is: (i) that the defendant failed to ensure there was sufficient separation between beasts so as to remove the risk that a convulsing beast would strike the plaintiff while he was engaged in his work; and (ii) that he should have been given cut-resistant gloves.

Although the pleading alleged a number of other failures on the part of the defendant it is only these two issues which need to be discussed.

  1. The plaintiff’s account of what happened was that (T 48.07):

 

‘I went to mark the windpipe, and as I was doing that one of them just come around from the side and just hit me arm … and just pushed me knife straight into me left wrist.’

  1. By chance the defendant made a video recording of the activities on the kill floor for purposes unconnected with the action and before the plaintiff was injured. It shows the slaughtermen performing the tasks I have described and, indeed, shows the plaintiff performing the very task he undertook when he was injured. It is apparent from the recording, which became an exhibit, that the beasts convulse quite violently until the stimulator takes effect which is, in time and space, a little beyond where the probes touch the animal. The plaintiff’s task was performed at a place on the table close to the stimulator.
  1. Sometimes there is congestion or delay in one of the processes and the electric motor driving the moving top of the table stops so as to prevent animals coming into contact with each other and forming a pile. When this happens the stimulator also ceases. When the table commences to move the stimulator is not immediately reactivated. There is a delay of two or three seconds before the current starts to flow. The statement of claim alleges:

 

  • the stimulator had been switched off for a short period of time (less than 30 seconds) due to a hold up in the line;
  • the Plaintiff was holding his knife in his right hand, about to remove the weasand from that beast;
  • when the stimulator was switched back on, the next beast in the line twitched and moved its head back, hitting the Plaintiff …’
  1. Although he must have given those instructions the plaintiff could not recall that sequence. He could not recall where the beast that struck him was positioned in relation to the stimulator at the critical time. He explained that ‘you don’t look that far in front of you. Just mainly concentrate on your part of the job because you’ve got to be careful doing your part.’ (T 51.42)
  1. In cross-examination the plaintiff accepted that the animals will often jerk mightily when stimulated and that it is important to stand clear but, as he explained again:

 

‘… a lot of times you just can’t worry if they are moving too much.  You’ve got to do your job and finish your job before the next person gets it.’ (T 91.20)

The reference to the next person ‘getting it’ is a reference to the slaughterman next in line having to perform his particular task on the beast with which the plaintiff had just finished.  When questioned about the sequence alleged in the statement of claim he said that he could not ‘say whether the stimulator was off or on at the time [the] beast hit [him]’ because ‘it could have happened both ways’.  He went on:

 

‘Like I said, I don’t know which way it happened, whether it was the stimulator that made it move or the way the beast just moves when they’re still kicking on the table.  … The reason why I said that is because the way it swung back is usually how they do it when they get hit by a stimulator, swings its head round to stretch out.’
(T 92.30-.40)

  1. The plaintiff’s case was corroborated by two fellow employees who were on the kill floor at the time. Darren Schulz was hosing anuses when he saw ‘the cow stiffen up when it was in the stimulator and strike [the plaintiff] on the arm’. At the time Mr Schulz was standing on the table opposite the plaintiff.  He did not see ‘the actual knife strike’ the plaintiff.  He said that the stimulator had been ‘off before’ the plaintiff was injured but was operating at the time.  It had just been turned ‘back on’, but he could not remember how long it had been inactive.  Mr Shulz explained that ‘cattle knocking the knife hand of a worker’ was not unknown; it happened ‘every now and then, not every day.’  He had seen it happen but had not witnessed any serious injury before the plaintiff was hurt.
  1. The other witness was Allan Matthews who was rodding next to the plaintiff. He explained (T 192.35) that the plaintiff:

 

‘was working on one beast.  Then the next one that come through the stimulator … sort of reared up or reared back, flicked its head backwards, and that’s about all we really all seen and then he was just standing there holding his hand.’

Mr Matthews’ recollection was that the cow ‘flicked its head’ as it was stimulated.  He, too, had previously witnessed cattle convulsing and knocking the knife hand of a slaughterman. 

  1. The knocker controlled the space between the beasts. He operated the sling which deposited animals onto the table by a foot pedal. When dropped onto the table the carcasses lay on their side, body first, i.e. legs and hooves last in the direction of movement. When the plaintiff stood at the front of the table separating weasands the next animal on which he was to work would be to his right and its head and neck would be closest to him.
  1. Mr Shulz worked occasionally as a knocker. He testified that knockers are instructed to deposit the carcasses on the table so that the hooves of one did not touch the back of the adjacent beast but ‘there was no specific distance between the bodies.’ (T 182.35) This requirement was one of hygiene, not safety. It was to avoid contamination passing from carcass to carcass. It was a requirement of the Australian Quarantine Inspection Service which regulated the export of meat.
    Mr Shulz’s evidence is confirmed by Exhibit 25, a written instruction issued by the defendant to its knockers.  The relevant instruction was to:

 

‘Tip animal out of restrainer onto sticking table making sure that bodies do not touch.’

  1. It is obvious that a workman standing near a beast before it had been rendered completely quiescent might be struck if it moved suddenly. If the workman were required to hold and use an extremely sharp knife, as the plaintiff was, while adjacent to such an animal the danger is equally obvious. It could be removed by maintaining between carcasses a space sufficient to put a knifeman beyond the reach of convulsions. The defendant did not implement or maintain any system to ensure a separation sufficient to protect its slaughtermen.
  1. Important evidence on this topic was given by Mr Teunis the defendant’s workplace health and safety facilitator at the Murrarie abattoir. He said (T 286.10-287.30):

 

‘We had a system in place where the beasts were required to be separated.

 

We have already talked about that … That was because of quarantine and hygiene?  -  No, I didn’t say that. …  I said that principally that was a safety requirement, but if … the beasts were banked up together or pushed up against the other then that would become a safety issue.  They certainly overlap.

 

… What is the safety issue if the beasts touch each other? – The safety issue is fundamentally the fact that if they touch each other that while you are working on one beast that beast is in close proximity, that if it is stimulated, it can twitch and affect your operation on the beast. …

 

It is not just the touching, it is the fact they might get too close? …  [T]he hygiene point is the touching. … But the too close is a health and safety issue, yes.

 

 

You have never instructed a knocker, have you, to ensure that there is adequate distance between beasts to ensure that the beast next door doesn’t hit the worker’s knife hand? – No.

 

 

The only distance the vet was concerned about, the only distance quarantine was concerned about was the distance to ensure the beasts weren’t touching each other? – That’s right … the bottom line is they need to be separate and you’re right, there is no definition of how far they need to be apart.’

  1. Mr Kahler, an engineer who gave evidence in the plaintiff’s case, said in his report:

 

‘It is possible to organise a sensor so that the person doing the stunning does not perform this task until the last animal onto the chain is at a predetermined minimum distance from the discharge of the stunning facility.

 

There will be other ways in which a minimum separation distance can be achieved but it would require examination of the operation and of the collective knowledge and experience of the workforce to find the optimum acceptable solution.  However, unless there is a minimum separation distance, it is predictable that, either during the activity of stunning or during any other activity on the slat conveyer a beast may inadvertently move and … strike a workman …’

This testimony was given without objection.   It is, in any event, self evident.  In his oral evidence Mr Kahler described how a sensor would ensure a minimum separation distance.  He said (T 177):

 

‘… there’s many … types of sensors.  There are just simply ultrasonic sensors that … measure to a depth so that they could sense the presence of the carcass and … give the person a light or something that … says, “Time to go.”, but basically … you’re letting a machine decide when … the slat conveyor is ready to accept the animal.  It may be even a defined mark that is put in, but really it is about saying, “This is the point at which we want the animals discharged to ensure reduced contact between animals.” 

 

The sensor would give the knocker a signal as to when the beast should … go … on the slats? – Yes.’

  1. Counsel for the defendant submitted that the plaintiff’s account of the action should be rejected. The argument depends upon the evidence that the conveyor table had ceased to operate for a minute or more and that the accident occurred just after it recommenced. There was a pause of two or three seconds between the table starting and the stimulator receiving current. The plaintiff believed that he was struck by an animal in contact with the stimulator. The task on which the plaintiff was engaged took him about 30 seconds to perform on each carcass. The slaughtermen were instructed to put their knives in a protective pouch attached to a belt at all times when they were not actually being used. The plaintiff was aware of the instruction and agreed that it was essential for safety that knives be pouched whenever they were not in use.
  1. The defendant’s point is that when the table is not in motion beasts are not moving and when a particular task is completed on a carcass there is nothing for the rodder to do until the table starts and another animal moves down to his position. If a table were inactive for a minute or more the plaintiff must have completed his task of freeing the weasand. The next beast for his attention would have been the one that came from the stimulator that struck him. Therefore, it is argued, that the plaintiff should have been standing with his knife pouched waiting for the animal to reach him. There would have been nothing to preoccupy his attention and he should have been able to stand clear of the animal under the stimulator.
  1. The logic is impeccable but I accept the plaintiff’s evidence that at the time he was struck by the animal to his right he was engaged in the task of freeing the weasand of another beast with his knife. He was concentrating on that task and did not observe the beast to his right and behind him. He was adamant about that and I thought he was genuine in his evidence. He was not an intelligent man and not articulate but I thought him truthful and reliable.
  1. It is true, as the defendant submits, that the plaintiff would not have been engaged in separating the weasand if the table had just recommenced to move. I think the likely explanation is that the injury occurred longer after the table recommenced than the plaintiff recollected. The plaintiff was unsure of the exact sequence which is not surprising. His work was repetitious, the task was uniform and the table frequently stopped. I think it is likely that the table had started and some beasts passed requiring his attention before he was struck. I think it improbable that it was the first beast to pass under the stimulator after the recommencement that caused his injury.
  1. The next point to consider is the provision and wearing of cut-resistant gloves. The plaintiff alleges that the defendant was at fault in not providing him with such gloves, not instructing him to wear them and not training him to perform his tasks while wearing the gloves. The defendant counter-attacks that the plaintiff was himself negligent in not wearing the gloves which were provided. The evidence shows that cut-resistant gloves were available at the relevant time and that, had the plaintiff worn such a glove on his left hand, the knife would not have cut his flesh or into the structures of his wrist. The evidence also establishes that the defendant did not instruct rodders to wear the gloves and did not insist that they do so. Indeed it informed them that they need not wear them when performing their tasks. By contrast employees performing the ‘follow on tasks’ in the abattoir were made to wear the gloves. The reason given for not insisting that those on the kill floor wear gloves was that there was resistance to their use, the workforce was militant and the defendant was reluctant to undertake any action which might foment industrial conflict.
  1. The evidence should be rehearsed.
  1. The plaintiff’s evidence (T 49-50) was that the gloves were ‘a bit impractical’ because ‘you’ve got to feel for the weasand meat … to get your finger[s] in there to get a good grip to clear it away …’. The loss of feel associated with wearing a glove over the fingers made the task harder. As well there were considerations of hygiene. The gloves ‘fill up with blood … if you’ve got bare hands you could wash all the blood off … [b]ut with gloves, you still have remnants … in your gloves.’ Mr Caird confirmed that in other areas of the abattoir ‘they make you wear gloves’ but the foreman in the kill floor observed the slaughtermen going about their work without gloves and ‘didn’t do anything’.
  1. In cross-examination the plaintiff said that when working on beasts after their hides had been removed, doing such jobs as cutting off heads and tails and trimming, he wore cut-resistant gloves. Their use was compulsory. However, on the kill floor where he was injured it was not compulsory. Mr Teunis ‘and everyone sat there and watched us do it … [and] never said nothing …’. (T 98.04) He accepted that the defendant made the gloves available to its employees. It was put to him that he knew that ‘one item of protective equipment for the benefit of workers was a
    cut-resistant glove’ (T 116.34).  He answered ‘Yeah. On certain jobs you were made aware you had to wear them and other jobs … they never told you to wear them.’ 
  1. Mr Shulz gave similar evidence. He knew why the rodders did not wear gloves. It was ‘because they were a hindrance … when they had to separate the weasand from the windpipe. They couldn’t get their fingers in … to separate them.’ (T 182)
  1. Mr Matthews corroborated the evidence that gloves were not required to be worn by the slaughtermen on the kill floor:

 

‘[N]o-one wore them from where I worked …  [W]e spoke about it with the foremen … and we come to an agreement … where it wasn’t safe or hygienic enough because I don’t think the vet would have liked us wearing gloves … because they go on contamination with the other animals.’ (T 196)

This concern is that gloves are harder to clean than hands with the risk that infection from one animal might be retained on gloves and passed to another.

  1. Mr Teunis’ evidence was to the same effect. There were, according to Mr Teunis, three grades of slaughtermen, A, B and C. C grade slaughtermen include the follow on labour. The defendant ‘implemented mandatory use of the … cut-resistants for all C grade tasks’. The plaintiff was a B grade slaughterman on the kill floor and there was no mandatory requirement for him to wear the glove. Mr Teunis explained that the defendant’s management was conscious of the need to provide a safe working environment and believed that wearing cut-resistant gloves would help achieve that end. The employees’ representatives, members of the Meatworkers Union were unconvinced that slaughtermen should wear gloves. ‘[T]hey believed that the introduction of gloves in those areas would … increase the likelihood of injury.’ The reason was that ‘[u]sing the glove … can inhibit … ability to grab hold of the hide. … Things do feel differently and … there is some fear that … it was unsafe to use the gloves … [W]e introduced the gloves in the C grade area first … because all new employees were … introduced … to those C grade areas and it was the new employees who were most at risk …’
  1. Despite Mr Teunis’ personal belief that the use of cut-resistant gloves would reduce the risk of injury and that all workers who used knives should wear the gloves the defendant moved with amazing slowness to implement the measure. In  February 1996 there was a trial of cut-resistant gloves but their use was not made mandatory for anyone.  The compulsion on C grade slaughtermen to wear gloves came later.  On 5 May 1998 a memorandum was issued to employees directing those of them ‘supplied with cut-resistant gloves’ to wear them.  Notwithstanding this the defendant permitted the kill floor slaughtermen not to wear them.  No action of any sort was taken against A and B grade slaughtermen who did not wear gloves.  On 23 February 2000 the defendant’s safety committee decided that comprehensive use of cut-resistant gloves was not practical.  The end result was that after four years of considering the use of such gloves the defendant did not get to the point of directing its slaughtermen to wear gloves.
  1. Some other matters should be mentioned. At least two other abattoirs in South East Queensland succeeded in implementing the use of gloves by its slaughtermen. The next point to note is that Mr Teunis agreed that if slaughtermen were to be encouraged or directed to wear the protective gloves they should first be trained in performing their tasks while wearing the glove. The use of the glove would create some added difficulty in the sense of decreased sensation and ability to grasp the weasand. Mr Kahler gave evidence that the training would not be extensive and that after about a day’s practice the worker would be competent and confident. The defendant did not ever provide such training or encouragement. (T 282.20-282.40) The third point to mention is that problems of hygiene could have been overcome by wearing a latex glove on top of the cut-resistant glove. The latex glove could be washed as easily as a bare hand after finishing with one beast and before starting the next.
  1. On 24 January 1997 Mr Teunis on behalf of the defendant issued a memorandum to all employees. It recited the terms of s 36 of the Workplace Health and Safety Act 1995 (Qld).  Relevantly it provided, and the memorandum repeated:

 

‘A worker … has the following obligations at a workplace –

 

(b)To use personal protective equipment if the equipment is provided by the worker’s employer and the worker is properly instructed in its use.’

There was no satisfactory evidence that the memorandum came to the attention of the plaintiff, or any other slaughterman, and no evidence of how the plaintiff or the average meatworker would have reconciled s 36(b) with the defendant’s instructions not to wear gloves. 

  1. On 15 December 1997 Mr Teunis issued an interim report on the use of cut-resistant gloves. He recommended that ‘it be mandatory for all new employees using knives to wear cut-resistant gloves.’ The plaintiff was not, in December 1997, a new employee. On 31 March 1998 the safety committee chaired by Mr Teunis resolved ‘that safety gloves be implemented in high risk areas.’ There was no evidence that the kill floor was regarded as a high risk area. If it was Mr Teunis disregarded the resolution of his own committee. As I have pointed out, the evidence shows that employees on the kill floor were not required to wear gloves. An employee information booklet given to all employees when first engaged contained, amongst its many pages, a list of employee responsibilities. The first was ‘to wear and use the provided safety protective equipment and clothing properly.’
  1. The provisions of the WorkCover Queensland Act 1996 (Qld) have materially altered the onus and standard of proof in actions by injured workmen against their employers.  Section 312 provides:

312.(1)In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim –

(a)that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable;

(b)that the actual and direct event giving rise to the worker’s injury was actually foreseen or reasonably readily foreseeable by the employer;

(c)that the worker did not know and had no reasonable means of knowing that the actual and direct event giving rise to the injury might happen;

(d)that the injury sustained by the worker did not arise out of a relevant failure of the worker to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility;

(e)that the worker did everything reasonably possible to avoid sustaining the injury;

(f)that the event giving rise to the worker’s injury was not solely as a result of inattention, momentary or otherwise, on the worker’s part;

(g)that the injury sustained by the worker did not arise out of a relevant failure of the worker to use all the protective clothing and equipment provided, or provided for, by the employer and in the way instructed by the employer.

(h)that the worker did not relevantly fail to inform the employer of any unsafe plant or equipment as soon as practicable after the worker’s discover and relevant knowledge of the unsafe nature of the plant or equipment;

(i)that the worker did not inappropriately interfere with or misuse or fail to use anything provided that was designed to reduce the worker’s exposure to risk of injury.

(2)If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim.

(3)If the claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim.

(4)If the claimant fails to prove any of the matters mentioned in subsection (1)(c) to (i), the court must –

(a)dismiss the claim;  or

(b)reduce the claimant’s damages on the basis that the worker substantially contributed to the worker’s injury.

(5)In deciding whether a worker has been guilty of completely causative or contributory negligence, the court is not confined to a consideration of and reliance on the matters mentioned in subsection (1)(c) to (i).

Reduction of damages because of contributory negligence

314.(1)A court must make a finding of contributory negligence if the worker –

(a)relevantly failed to comply, so far as was practicable, with instructions given by the worker’s employer for the health and safety of the worker or other persons unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker’s injury;  or

(b)failed at the material time to use, so far as was practicable, protective clothing and equipment provided, or provided for, by the worker’s employer, in a way in which the worker had been properly instructed to use them unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker’s injury;  or

(c)failed at the material time to use, so far as was practicable, anything provided that was designed to reduce the worker’s exposure to risk of injury unless the claimant can prove, on the balance of probabilities, that the failure did not cause or contribute to the worker’s injury;  or

(d)inappropriately interfered with or misused something provided that was designed to reduce the worker’s exposure to risk of injury;  or

(e)was at the relevant time adversely affected by the intentional consumption of a substance that induces impairment unless the claimant can prove that the adverse affect did not cause or contribute to the worker’s injury;  or

(f)has failed without reasonable excuse to attend on more than 1 occasion any safety training course organised by the worker’s employer that is conducted during normal working house at which the information given would probably have enabled the worker to avoid, or minimise the effects of, the event giving rise to the worker’s injury.

(2)If an injury sustained by a worker was caused or contributed to by 1 or more of the circumstances mentioned in subsection (1), the court must reduce the damages for the worker’s injury under subsection (3).

(3)For subsection (2), the court must reduce the award of damages by at least 25% for each of the circumstances causing or contributing to the injury.’

  1. The onus is thus on the plaintiff to prove that the defendant made no genuine and reasonable attempt to put in place an appropriate system of work to guard him against injury arising out of events that were reasonably readily foreseeable, as well as the other matters specified in s 312.
  1. This is a ‘system of work’ case. The defendant submitted that the plaintiff must fail because he had not proved the matter described in s 312(1)(a). The submission relies upon the lengthy evidence given by Mr Teunis of the attempts made by him and his committee to secure a safe workplace at Murrarie abattoir. I accept without hesitation Mr Teunis’ evidence that he was concerned about the safety of the defendant’s employees and the attempts he made to improve it. In a general sense the defendant, through Mr Teunis, took its obligation seriously and did attempt to reduce dangers in the workplace. However, s 312(1)(a) is concerned with the particular system of work which is said in a particular case to have been defective. In this case the system involves the deposit of carcasses onto the conveyor table to be worked upon by the slaughtermen. The system was unsafe if there were not a sufficient space between beasts to prevent one of them striking a knife hand. As to that system the defendant made no attempt at all to make it safe. It never occurred to Mr Teunis, or anyone else, to insist on any separation other than a few millimetres to satisfy the officers of the Quarantine Service as to hygiene. There is no doubt that an injury caused in the manner experienced by the plaintiff was reasonably and readily foreseeable by the defendant. Its own employees observed such things occur. Mr Teunis was aware of it. It does not matter that in other respects the abattoir was a safe place in which to work. Nor does it matter that the evidence did not establish the dimension of separation which would have made the system safe. The defendant did not attempt the measurement. It is clear that the space was in fact insufficient and there was no system of controlling the separation to provide a safe distance between beasts.
  1. As I mentioned both plaintiff and defendant rely upon the fact that the plaintiff did not wear a cut-resistant glove. There is no doubt that such a glove would have prevented his injury. The plaintiff alleges that the defendant’s system of work was deficient in that it did not instruct the plaintiff to wear the glove or train him so as to make him familiar with the performance of his task while wearing a glove. The defendant alleges that having provided a glove to the plaintiff, his failure to wear it constitutes contributory negligence for the purposes of s 312(1)(g) and s 314(1)(b). The defendant also argues that its lack of insistence that the plaintiff wear the glove was not negligent because it had made a genuine and reasonable attempt to have the slaughtermen wear gloves and therefore ‘to put in place an appropriate system or work to guard the worker against injury.’
  1. The evidence in support of the last contention comes largely from Mr Teunis who accounted how the defendant did not want to force the issue with its employees who were conservative and resistant to change, but not averse to taking industrial action against what they saw as unreasonable conduct by an employer. The defendant was anxious to be and to be seen as a considerate and humane employer.
  1. This is all very well, but the defendant’s humanity and concern for industrial harmony jeopardised the safety of its workers. The defendant’s attitude, that it was not negligent in not insisting that its slaughtermen wear protective gloves because of union resistance but that the plaintiff should have his damages reduced by at least a quarter because he was negligent in not wearing them, should not pass without criticism. Other abattoir operators succeeded in gloving their slaughtermen. The defendant did not do so although for years it knew of the safety value of the gloves. It appears to have made no real attempt to insist upon their use on the kill floor. There was no satisfactory evidence that there would have been industrial disruption had such an instruction been given and insisted upon, and no evidence that any industrial dispute could not have been satisfactorily resolved. The mere suspicion that there might have been trouble was enough to deter the defendant. Nor did the defendant attempt to persuade slaughtermen to wear gloves by assisting and training them in the performance of the task with gloves.
  1. Accordingly the plaintiff has shown to my satisfaction that the defendant made no genuine and reasonable attempt to have its slaughtermen wear the gloves. Indeed it did the opposite. It expressly instructed them that they did not need to wear them.
  1. There is a further point. The provision of a minimum safe space between beasts became more important if the slaughtermen were not wearing gloves, as they were not, to the defendant’s knowledge. The risk of knife injury to an experienced slaughterman was small though actual. The risk was appreciably increased if a convulsing beast were close to the slaughterman while he worked. If the defendant were not to insist upon the use of gloves it was clearly negligent not to insist upon a safe space between animals.
  1. I am therefore satisfied that the plaintiff has proved the matters contained in
    s 312(1)(a) and (b).  Section 312(1)(c) is alarmingly vague for a provision which might operate to disentitle a worker injured by his employer’s negligence from recovering damages.  I take ‘the actual and direct event giving rise to the injury’ to be the immediate and last cause of the injury.  In this case that was the convulsion of the cow’s head which struck the plaintiff’s right arm.  I am satisfied that at the time his head was turned away from the cow and he was engrossed in the task of separating the weasand on the adjacent beast.  Accordingly he did not know and had no reasonable means of knowing that the cow behind would convulse and strike him.
  1. Of the remaining paragraphs in s 312(1) only (g) is relevant and that can be considered conveniently with s 314(b), which is the only part of that section relevant to the question of contributory negligence. The question is whether the plaintiff’s failure to wear a glove was a failure to take reasonable care for his own safety or, in the words of the legislation, whether the injury ‘sustained … did not arise out of a relevant failure … to use all the protective clothing … provided … in the way instructed by the employer’ or whether the plaintiff ‘failed … to use, so far as was practicable, protective clothing … provided … by the … employer in a way in which the worker had been properly instructed to use them …’.
  1. A cut-resistant glove was provided to the plaintiff or at least made available for his use. However, he was told that he need not wear it while performing rodding duties. None of the other slaughtermen on the kill floor wore a glove and this practice was observed and condoned, if not approved by the defendant. It cannot, therefore, be said that the plaintiff failed to use protective clothing in the way in which he had been properly instructed. He was not instructed to use the gloves. Indeed the appropriate finding is that he was instructed not to wear a glove while rodding.
  1. For the same reason Exhibit 27 is of no assistance to the defendant. Even if the plaintiff read it he would not have understood that s 36(b) of the Workplace Health and Safety Act obliged him to use the protective glove.  The section did not literally apply to him.  The glove was not provided for his work on the kill floor and he was not properly instructed in its use.  In any event he would have understood the direct oral instruction not to wear gloves and to override the memorandum, even if he understood it. 
  1. The plaintiff has therefore proved an entitlement to damages without reduction for any contributory negligence.

Damages

  1. The plaintiff was 37 years of age when injured. He had left school after year 10 at the age of 15. Between November 1979 and 1 September 2000 he worked in abattoirs in Rockhampton, Bowen and Brisbane. The chronology attached to his counsel’s submissions show that in the 21 years in which he worked as a slaughterman he was out of work for about 11 months. He appears to have had little difficulty in finding work. He is a single man and I would assess him to be an industrious worker. His education is limited as is his intelligence. He is suitable only for unskilled or semi-skilled manual work. The abattoir at Murrarie closed in December 2000. It reopened under new ownership shortly afterwards. The plaintiff made determined efforts to obtain employment at the abattoir and in other positions. He had some residual pain and discomfort from his injury which constituted a handicap to a manual worker. He was unsuccessful in obtaining employment until early December 2002 when he was engaged by a suburban RSL club to drive its courtesy bus and perform miscellaneous duties in the clubhouse. He continues in that employment, which is part time.
  1. The initial prognosis for the plaintiff, subsequent to the surgical repair of his injuries, was that he would make a full recovery or something close to it. In fact he has continued to complain of symptoms which have increased. This led to a spirited debate at the trial about the genuineness of the plaintiff’s complaints and their origin. The defendant was disposed to argue that there was a degree of conscious exaggeration, if not invention, in the plaintiff’s account of his injuries and hints of this are to be found in the reports of the doctors who examined the plaintiff on behalf of the defendant for the purposes of the litigation. By the time evidence had been taken from all the medical specialists it was clear that the plaintiff’s complaints are genuine and have a physiological basis. There remains a debate whether the ongoing and partially disabling symptoms are a sequel of the injury of 1 September 2000.
  1. In fairness to the plaintiff I should record my observations and impressions. I thought he was genuine. He gave evidence for almost a day during which his testimony was interrupted while other witnesses were interposed. When he walked into and out of the courtroom his left arm appeared to dangle as though it were painful to move. While giving evidence the plaintiff tended to gesture with his hands as an aid to expression. He is not an articulate man. He frequently moved his right hand but seldom his left. On the occasions he did so, he did not move it much and soon returned it to rest on his leg. There was nothing theatrical about his demeanour. It appeared that his left arm caused him discomfort.
  1. The plaintiff’s persistent and determined efforts to find work after his injury, and his attempts to obtain new work skills in order to obtain employment, are in evidence. They tend to dispel the suspicion that he was exaggerating his disability in order to increase any award of damages.
  1. Following his injury the plaintiff was taken to the Princess Alexandra Hospital where his wrist wounds were explored and repaired. He had suffered severing injuries to an artery, several tendons and bruising to the ulnar and median nerves. He remained in hospital for two days.
  1. The plaintiff told Dr Cameron, neurologist, who examined him on 13 March 2001, that he had been unable to return to work because of ‘left hand problems’. He experienced discomfort and pain over the left wrist and hand which felt stiff. He had poor grip and some numbness in his fourth and fifth fingers and along the ulnar border of the left hand. On examination there were neurological indications of ulnar nerve damage in the left hand but ‘the ulnar nerve of the left elbow was not sensitive to palpation.’ Nerve conduction studies suggested ‘a borderline ulnar disturbance at the left elbow’. Dr Cameron thought the plaintiff had minimal changes at the left ulnar nerve at the elbow which was asymptomatic. He thought that the plaintiff would regain further sensation in the hand which might take as much as two years. He thought the plaintiff would be left ‘with some minor impairment in left hand function as a consequence of this ulnar nerve injury.’ He thought it unlikely that the plaintiff could return to work as a slaughterman or as a heavy labourer with his hand in its then condition. He recommended rehabilitation for a return to work in a ‘light manual activity.’
  1. A report from an occupational therapist to whom the plaintiff was referred by WorkCover reveals that by the end of April 2001 the plaintiff had attended ‘(8) twice weekly work hardening sessions’ and undertaken exercise at home to strengthen his left hand and wrist. He had experienced sharp pain ‘while attempting repeated 4.5 kg weight bar exercises’. At the completion of the rehabilitation program the plaintiff reported no improvement in the strength and function of his wrist or a reduction in his pain. On 1 May 2001 Dr Goode, a specialist in occupational medicine, reported that the plaintiff complained of ongoing symptoms of pain and discomfort in his left hand and wrist, which Dr Goode thought were probably related to the effects of surgery.
  1. When in the hospital the plaintiff was under the care of Dr Rowan, orthopaedic surgeon, who examined the plaintiff for the purposes of a report on 16 March 2001. Dr Rowan anticipated a good recovery and that the plaintiff would ultimately be left with ‘minimal function of permanent impairment’ but would have some sensory deficits in the left palm. Dr Rowan again saw the plaintiff on 29 June 2001 when examination showed diminished grip strength in the left hand and diminished sensation.
  1. On 15 September 2001 the plaintiff was examined by Dr Couzens, a hand surgeon, who reported that the plaintiff experienced a burning pain in the region of the surgery and a sharp pain ‘which occurred with grip … localised along the ulnar border of the hand and forearm.’ The pain was worse at night or when lifting or when gripping. Its level was significant. It interfered with his work and physical activity. There were also complaints of paresthesia and numbness in his left fifth finger. His left hand grip was weak. Dr Couzens noted some wasting of the muscles of the left forearm and tenderness over the base of the hand. The ulnar nerve ‘was non-tender in its course in the forearm and also posterior to the medial epicondyle.’ This is the elbow. Compression of the ulnar nerve combined with elbow flexion did not produce neurological symptoms in the hand.
  1. Dr Couzens re-examined the plaintiff on 13 July 2002. The plaintiff’s condition as reported to Dr Couzens was essentially unchanged. Dr Couzens reported:

 

‘Because of the symptoms that he reported … it was felt that he would not be suited to returning to work requiring manual handling.  After assessment it was felt that he would be suited to light driving work…

 

He characterises the pain at the level of the wrist as being a tight sensation.  The pain … in the fingers he describes … as a sharp sensation.

 

He also complains of a sharp pain at the level of the scar over the ulnar side of the wrist.  He also complains of a cramping in the fingers with gripping.

 

… 

 

He states that the pain is constant …  He describes [it] as a stinging, shooting, aching, throbbing, dull and cramping sensation.  [He] says the pain stops him from doing some daily activities and interferes with sleep.’

  1. Dr Couzens thought that the plaintiff was co-operative during his examination and ‘was not hyperreactive’. Nevertheless he thought the plaintiff described symptoms which it was difficult ‘to explain given the nature of his injury.’ The doctor thought that it was unlikely that the plaintiff would return to heavy labouring work but he ‘would not ordinarily have expected that an injury of this nature would have prevented’ a return to such work.
  1. Dr Duke, orthopaedic surgeon, examined the plaintiff on 21 May 2002. He noted that the plaintiff complained of pain ‘from the elbow down to the hand’ as well as local pain around the wound. He had difficulty in lifting weights. Dr Duke thought that the plaintiff had suffered ‘a minor injury to some flexor tendons, and the ulnar artery.’ He thought the ‘ongoing problems’ did not ‘relate to anything that has been damaged or repaired.’ He thought the plaintiff embellished his symptoms. A subsequent report by Dr Duke, 22 July 2003, was to the same effect. Dr Duke thought that the plaintiff’s claims of ‘ongoing significant symptomatology … cannot be explained on a pathological basis.’
  1. The plaintiff was also examined by Dr Saines, neurologist, at the request of the defendant on 21 July 2003. The plaintiff complained to him of:

 

‘pain around the left wrist more so on the palmar aspect.  There is also pain extending up the forearm to the elbow … and some shooting pain which radiates from the wrist into the fingers particularly on the ulnar aspect.  There are various sensory symptoms in the hand, including numbness and tingling …  [G]rip and other activities involving the left hand seem to increase the symptoms …  [G]rip strength in the hand is reduced. …  [H]and symptoms are … not improving.’ 

  1. Dr Saines reported that results of nerve conduction studies on the left hand were normal and that ‘[f]rom a neurological view point he has made a full recovery on both clinical and electrophysiological grounds.’ There was no ‘current neurological disability.’ Dr Saines thought that the information for the plaintiff’s complaints must lie elsewhere.
  1. A different picture emerged when the plaintiff was referred by his general practitioner to Dr Robinson, orthopaedic surgeon, for treatment, not for the purposes of providing a forensic report. Dr Robinson diagnosed an ulnar nerve neuropathy at the elbow with some mild neuropathy at the wrist. This explained the decreased sensation on the ulnar side of the hand and pain in the forearm. In a report dated
    30 May 2004 Dr Robinson expanded upon his diagnosis: 

 

‘[The plaintiff] lacerated the … tendon at the wrist … [which] was repaired …  It is common practice after surgery of this type for the injured part to be elevated in a “Gallows Sling” … which has the elbow bent to a right angle and the forearm and hand extending vertically …  Any swelling around the operated area drains … and is likely to collect around the elbow …

 

[The plaintiff] has consistently described symptoms of ulnar nerve irritation from the time of the first documented report.  Nerve conduction studies provided by two different neurologists have indicated abnormalities of nerve conduction at the elbow over a two year period.  It is highly likely that [the plaintiff’s] ulnar nerve irritation at the elbow relates back to the initial injury and some postoperative swelling and scarring at the elbow as a result of the normal postoperative after the injury.’

  1. Dr Robinson also noted:

 

‘Irritation of the ulnar nerve at the elbow when bumped causes tingling to the little and ring fingers and also a vague ache within the muscles of the hand …  Disturbance of the ulnar nerve conduction can cause … vague symptoms within the hand, a sensation of … fatiguing and clumsiness …  These are all symptoms which are provided by [the plaintiff] …’

  1. Dr Duke examined the plaintiff shortly before trial, on 26 May 2004. By then he had a copy of Dr Robinson’s report. He was persuaded by it and his examination to agree that the plaintiff had ulnar nerve neuropathy at the elbow which was the cause of his symptoms. Dr Duke thought that the plaintiff was ‘significantly worse than when [he] last saw him, although the condition was starting to develop then.’
  1. Notwithstanding his change of diagnosis Dr Duke did not believe that the neuritis at the elbow was a sequel to the plaintiff’s injury. This view is shared by Dr Saines and Dr Cameron. The basis for their opinion is that the onset of elbow symptoms is too removed in time from the injury in September 2000 for it to be causally related. Dr Duke knows of no case in which a gallows sling has caused ulnar neuropathy. He makes the point that if there were any clinical evidence to that effect then the slings would not be used. Had the use of the sling caused the neuropathy at the elbow there would have been symptoms at the elbow and in the forearm immediately. The first indication of such symptoms occurred more than six months later and gradually increased until the diagnosis was made by Dr Robinson.
  1. Dr Saines accepts that ulnar neuropathy can occur following surgery, usually where an arm is immobilised for several hours. The occasions are rare and symptoms are immediately apparent. There is no record that the plaintiff complained of discomfort or pain in his forearm or elbow at the time of, or in the months following, his injury. Dr Cameron, too, thought that if ulnar neuropathy at the elbow had been sustained as described by Dr Robinson from wearing a gallows sling, ‘the condition would have come on straight away.’ He disagreed that scarring to the nerve could have occurred because of the suspension of the plaintiff’s left arm in a sling. Moreover an MRI scan does not show such scarring.
  1. Dr Robinson is the only specialist who attributes the ulnar neuritis to the plaintiff’s initial injury. The other five specialists who gave evidence expressed the contrary opinion. Their primary reason was that if the ulnar neuritis was related to post-operative immobilisation the plaintiff would have experienced symptoms in his left elbow and forearm at the time.  The evidence of Drs Duke, Couzens, Rowan, Cameron and Saines is found respectively at T 345.45 – T 346.21;  T357.1 - 357.18 and 362.10 – 362.20;  T 375.10 and Exhibit 44;  Exhibit 40;  T 407-410.  None of the doctors has knowledge of ulnar neuritis at the elbow being caused by a gallows sling.  The examinations of the plaintiff conducted by those doctors support the opinion that the first symptoms in the plaintiff’s elbow and forearm were not manifest until a considerable time after the infliction of his injury at the abattoir.
  1. There is compelling evidence that on the occasions of the earlier examinations the plaintiff was not exhibiting symptoms of neuritis located at the elbow. Dr Cameron in his report of 15 March 2001 noted that ‘the ulnar nerve of the left elbow is not sensitive to palpation’. Dr Rowan on 16 March 2001 noted ‘no evidence of ulnar nerve lesion’. Dr Couzens on 15 September 2001 found that ‘the ulnar nerve was non-tender in its course in the forearm and also posterior to the medial epicondyle. Compression of the ulnar nerve, combined with elbow flexion did not reproduce neurological symptoms in the hand.’ Dr Saines’ examination of 21 July 2003 showed that the plaintiff was slightly tender over the ulnar nerve at the left elbow but the nerve conduction studies showed the nerve at the elbow to be normal.
  1. When the plaintiff was examined by Dr Robinson in April 2004 and by Dr Duke in May of this year the clinical findings were quite different. There were clear indications of ulnar nerve involvement at the elbow. Dr Robinson’s report records a complaint by the plaintiff of constant pain in his elbow intermittently extending to his fingertips, as well as pain around the medial aspect to this elbow radiating down his arm. None of the earlier reports record such complaints.
  1. The doctors, other than Dr Robinson, rejected the use of the gallows sling as a cause of the elbow neuritis. The evidence of Dr Couzens is at T 345.55; Dr Rowan at T 360.24;  Dr Saines at T 372.30;  Dr Cameron in Exhibit 40, para 17;  and Dr Duke in Exhibit 54, para 3.  Dr Robinson conceded that there was a degree of speculation in his attribution of cause. 
  1. The evidence of the doctors is that ulnar nerve neuropathy at the elbow is a common complaint in the community and that its aetiology is unknown. It may come on for a variety of reasons or for no known cause. Dr Robinson accepts this to be the position but thinks that it is more probable that the elevation in the sling was the cause of the neuropathy.
  1. The onus is on the plaintiff to prove that his ulnar neuritis at the elbow was caused by his wrist injury or the operative and/or post-operative treatment for that injury. The weight of the evidence is against, even strongly against, a finding that it was the elevation in the sling that caused the neuritis to develop. I am disposed to accord particular weight to Dr Robinson’s opinion because he correctly diagnosed the plaintiff’s condition at a time when other specialists were sceptical of the plaintiff’s complaints, but, even so, the evidence as a whole does not allow that finding to be made. There is no rational basis for preferring Dr Robinson’s opinion over that of the other medical specialists. It is possible that the plaintiff’s neuritis is a consequence of his treatment but the evidence does not permit a conclusion that, on the balance of probability, elevation in the gallows sling was the cause.
  1. It is, I think, significant that the plaintiff’s symptoms of elbow neuropathy were not present for some months after his treatment and developed gradually. It is right, I would accept, that had restraint and elevation in the sling been the cause, symptoms would have been apparent earlier. In this regard the earlier report of Dr Cameron is important. Palpation of the nerve with the elbow flexed did not produce discomfort in March 2001. Had neuritis then been present there would have been symptoms. Dr Couzen’s examinations show the gradual onset of symptoms commencing in about September 2001. They slowly increased thereafter.
  1. Counsel for the plaintiff points to complaints of symptoms made by the plaintiff in the weeks following his injury and treatment which are indicative of ulnar nerve involvement. These complaints are recorded in the hospital records as well as early reports from general practitioners. The point about them is that they are limited to symptoms occurring below the wrist, in the hand and the fingers. Either in the accident or the operation the plaintiff’s ulnar nerve at the wrist was damaged, which would explain these symptoms. Had there been nerve damage at the elbow there would have been symptoms above the wrist, and there were none until at least a year. The plaintiff points to a letter by the orthopaedic registrar of the Princess Alexandra Hospital, dated 10 September 2001, which notes that on 8 February 2001 the plaintiff complained ‘of some ongoing pain in his arm and hand.’ Dr Andrews was not called and there is no more precise record of what the plaintiff’s particular complaint was at that time. It is clear enough that the report was compiled from the hospital’s records. This report is too lacking in particularity to overcome the problem of a lack of early complaint of elbow or forearm pain.
  1. Accordingly I conclude that the plaintiff has not proved that his ulnar neuritis is an injury for which he can recover damages. These should be assessed on the basis that the plaintiff suffered his documented wrist injury which left him with a weakened and painful hand for about two years after which the disability was overtaken by the developing ulnar neuritis.
  1. The plaintiff is to be compensated for his injury and consequent disability for the time taken to recover from the wrist injury and the handicap it placed upon him in terms of working. I would assess that he was disabled for a period of two years after which, ignoring the elbow trouble, he would have been fit to return to most occupations for which he was equipped though he would have had some slight residual disadvantage in terms of altered sensation and grip.
  1. The plaintiff suffered a painful and inconvenient injury. The symptoms are well documented in the medical reports. The plaintiff has had pain for which he has taken analgesics. He had trouble sleeping and was unable to follow the pursuits of his leisure. I would assess general damages for pain, suffering and loss of amenity at $30,000.
  1. Consequent on my finding that the plaintiff was disabled by his relevant injury for a period of about two years I would assess damages for past economic loss in accordance with the approach taken by his counsel in her written submissions. I allow past loss for the period 1 September 2000 until 4 December 2002 when he found work at the RSL club. I note that in July 2002 Dr Couzens said the plaintiff could not return to ‘manual handling’. I am satisfied that the plaintiff tried conscientiously to find work and that his unemployment until December 2002 was caused by his wrist injury and its aftermath. The figure is $61,350 ($11,050 for the loss of income between 1 September 2000 and 1 December 2000 when the defendant’s abattoir closed and $50,300 for the period 1 December 2000 to 1 December 2002, adapting figures from Ms Heyworth-Smith’s scenario 2). I would round this figure down to $60,000 to allow for the contingency that the plaintiff may have not found work immediately after closure of the defendant’s abattoir. I would not have expected the plaintiff to be out of work for long. His history suggests he found work easily and my impression is that he would have sought work diligently.
  1. Interest on damages for past economic loss is ($60,000 minus $24,212.23) x 5 per cent x 3.8 years = $6,800.
  1. The plaintiff is entitled to an award of damages to reflect the loss of superannuation he would have earned on his lost earnings. The amount is ($60,000 x 8 per cent) = $4,800. Interest on this amount at 5 per cent x 3.8 years comes to $912.00.
  1. The assessment of damages for future economic loss is obviously difficult. The plaintiff’s impairment for employment is to be assessed by reference only to the injury to the structures of his wrist. The symptomology and weakness occasioned by the elbow neuritis must be disregarded. The assessment is to proceed on the assumption that in December 2002 the plaintiff had recovered as much of the function of his left arm as will occur and could then have resumed employment as a slaughterman or unskilled manual worker. There is, as I mentioned, a residual loss of grip and sensation which has been quantified as an impairment of between two and four per cent. While the figure is not great it is of more significance to a labourer of low intelligence and little education who has only his strength and manual dexterity to offer an employer. I am satisfied that there is, for the purposes of s 317 of the Act, ‘at least a 51 per cent likelihood’ that the impairment will result in some loss of earnings in the future. There is a diminution of his capacity to earn income which is likely to result in actual loss in the future. It is not possible to determine the extent of the loss with any precision.
  1. The plaintiff is 41 and might be expected to work another 24 years. It is reasonable to allow two years lost earnings in that time as a likely consequence of his disability. A year’s net income as a slaughterman is about $25,000. Two years lost earnings is therefore $50,000 which should be reduced by a quarter for its immediate receipt. The amount is $37,500.
  1. The plaintiff is also entitled to the value of lost future superannuation benefit at nine per cent of damages for future economic loss. This amount is $3,375.
  1. The plaintiff’s special damages on which the parties are agreed amount to $7,912.16. There is a further amount, the refund due to the Health Insurance Commission, on which the parties do not agree despite asserting in their respective written submissions that they do. The parties set out different figures for the ‘agreed’ amount. I will adopt the plaintiff’s figure. If it is wrong and the defendant cares about it the judgment can be amended. This results in an amount of ‘agreed’ special damages in the sum of $8,481. In addition I will allow the plaintiff the cost of purchasing a machine to aid his sleep in the sum of $200, and pharmaceutical and travel expenses in the sum of $343.45. I will allow interest on the sum of $543 at five per cent for 3.8 years. Rounded down the figure is $100.
  1. I am not satisfied that the plaintiff will incur future medical expenses in relation to his wrist injury or will require the equipment recommended by Mrs Stephenson. The suggestion that there be further surgical intervention and a need for appliances was predicated upon the elbow neuritis being a condition for which the defendant was responsible. I am not satisfied that the plaintiff requires a motor vehicle with automatic transmission by reason of his residual wrist injury. The Fox v Wood component is agreed at $4,429.  Accordingly I assess damages:

 

Head of Damage

Amount

i.

General damages

30,000.00

ii.

Past economic loss

60,000.00

iii.

Interest on past economic loss

6,800.00

iv.

Past superannuation

4,800.00

v.

Interest on past superannuation

912.00

vi.

Future economic loss

    37,500.00

vii.

Future loss of superannuation

3,375.00

viii.

Special damages

9,024.00

ix.

Interest on past special damages

100.00

x.

Fox v Wood component

    4,439.00

 

Sub Total

156,950.00

 

Less WorkCover Refund

  29,050.00

 

Total

127,900.00

 

Close

Editorial Notes

  • Published Case Name:

    Caird v State of Queensland

  • Shortened Case Name:

    Caird v State of Queensland

  • MNC:

    [2004] QSC 217

  • Court:

    QSC

  • Judge(s):

    Chesterman J

  • Date:

    30 Jul 2004

Litigation History

No Litigation History

Appeal Status

No Status