Spina v Australia Meat Holdings P/L
[2000] QCA 497
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- Unreported Judgment
- Appeal Determined (QCA)
- Spina v Australia Meat Holdings P/L[2000] QCA 497
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Spina v Australia Meat Holdings P/L[2000] QCA 497
Spina v Australia Meat Holdings P/L[2000] QCA 497
SUPREME COURT OF QUEENSLAND
CITATION: | Spina v Australia Meat Holdings P/L [2000] QCA 497 |
PARTIES: | SALVATORE RORY SPINA (plaintiff/respondent) v AUSTRALIA MEAT HOLDINGS PTY LTD ACN 011 062 338 (defendant/appellant) |
FILE NO/S: | Appeal No 2410 of 2000 DC No 149 of 1996 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Townsville |
DELIVERED ON: | 8 December 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 September 2000 |
JUDGES: | Pincus and Thomas JJA, Jones J Judgment of the Court |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | TORTS – NEGLIGENCE - PROOF OF NEGLIGENCE - SUFFICIENCY OF EVIDENCE - whether findings of trial judge founded upon too fragile an evidentiary base to support them - comprehensive reasons of trial judge - ample evidence to support specific findings DAMAGES – MEASURE OF DAMAGE - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - whether allowance for impairment of earning capacity so far out of line with an appropriate award as to require intervention EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - SAFE SYSTEM OF WORK - plaintiff was awarded damages for injury to right hand sustained in course of employment at meat works - action for breach of employment contract - rejection of cross claim ANI Corporation Limited v Wylie [2000] QCA 314, Appeal No 4092 of 1999, 4 August 2000, referred to Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258, considered Jackson v Coal Resources of Queensland Limited [2000] QCA 82, Appeal No 3262 of 1999, 21 March 2000, considered |
COUNSEL: | R J Douglas SC with M A Fellows for the appellant D G H Turnbull for the respondent |
SOLICITORS: | Thompson Hannan Lawyers for the appellant Giudes & Elliott (Townsville) for the respondent |
- THE COURT: The respondent/plaintiff in an action against the appellant in the District Court at Townsville was awarded damages for an injury to his right hand sustained in the course of his employment on 29 November, 1995. The action was framed as a claim for breach of the respondent’s contract of employment. The appellant had sought to raise a cross claim based on breaches of express and implied terms of that contract of employment. The learned trial judge found that breach of employment was proven against the appellant and further that the respondent was not himself guilty of any breach of duty. His Honour awarded $68,061.66 which included $40,000.00 for impairment of earning capacity.
- By this appeal, the appellant argues that it was not in breach of its duty of care and that the learned trial judge’s rejection of the cross claim was wrong.
Background facts
- The plaintiff was at the time of this incident employed as a labourer at the appellant’s meat works at Townsville. He commenced this employment in March, 1995 at which time he was given an induction course which included instructions in the use of a variety of items of equipment and in safety procedures. This instruction, in particular, included the use of a mesh glove when using a knife in the opposite hand.
- The respondent was at first assigned to work in the hides department where his duties involved the carrying and stacking of hides. These tasks did not require the use of a knife. Approximately three weeks prior to the incident on 29 November, 1995 the respondent was assigned to an area known as “the gut box”. He was not given any further instructions about the use of equipment when he took up these new duties. The new tasks were explained by the supervisor, Mr Monaghan who satisfied himself that the respondent had “all the correct equipment...which included … a mesh glove”.[1]
- The “gut box” area of the meat works is located below the slaughter floor. It is to here that “condemned” material, principally consisting of haunches and foetuses, were sent by means of a chute to the work bench where the plaintiff had to separate and then redirect material to other collection or inspection areas. Work in this area involved the use of a knife.
- The gut box area was relatively isolated to meet quarantine requirements and this meant that employees did not mix with employees processing meat for consumption. However, the supervisor visited the gut box from time to time. The frequency of his visits and what he ought to have observed about the working practices of employees in the gut box area were matters of dispute. The learned trial judge found, relevantly, that the frequency of visits was in accordance with the respondent’s evidence, viz. about twice daily. His Honour also accepted that on occasions when the supervisor visited, the employees in this area were not wearing the mesh glove whilst using a knife.
- The material arrived at the work bench by means of a chute at the bottom of which was a gate mechanism controlled by the respondent. When the slaughter floor had no more material to deliver, a pink glove was sent down the chute. This was the indication to the respondent that his work for the day had finished.
- This signal was received on the day in question which caused the respondent to close and latch the gate mechanism, to remove his apron and commence to clean his equipment. As he was in the process of doing this further material came down the chute to the gut box. The plaintiff again donned his work apron and the cotton glove on his right hand but did not put on the steel mesh glove. Whilst using the knife on this new material he sustained the injury to his right index finger. It is common ground that the plaintiff would not have sustained the injury if he had been wearing the mesh glove.
- The principal matters upon which the learned trial judge based his conclusion that there was a breach of the employer’s duty were –
(i)failure, after the March 1995 induction course, to give specific directions as to the wearing of the mesh glove or any reminder that the wearing of a mesh glove was required.[2]
(ii)failure to enforce the wearing of the mesh glove when it knew or ought to have known that the requirement to do so was not being observed.
His Honour summed up the position –
“However, I find the real cause of the Plaintiff’s accident was however that there was no insistence that the mesh glove be worn in the “gut box” area. On the Defendant’s case, the Plaintiff was given advice and a booklet (Exhibit 19) at the time of his induction. He carried his mesh glove to the work station each day but wore it intermittently. From the time of the Plaintiff’s induction to the date of the accident, no person in authority had directed him that at all times he should wear the mesh glove, despite the fact that it was known, or ought to have been known, that for inexperienced employees working in relative isolation, the accumulation of fat or other tissue would constitute a significant temptation for employees to remove the mesh glove.”[3]
- On the issue of the respondent’s breach of duty, the appellants at trial relied upon the fact that instruction to use the mesh glove had been given at the time of his induction, that he had been provided with a safety booklet, that he had been supplied with all relevant safety equipment, that he habitually used that equipment and that he was aware of its purpose and need.
- The learned trial judge expressed his conclusion as follows:-
“I do not think I should take the view that the facts that brought the conclusion that the Plaintiff is in breach of his contract of employment. I think the instructions given were completely inadequate and insufficiently specific for an inexperienced knife-hand and that there was no enforcement of wearing the mesh glove in the “gut box” area. In my view this cannot be said to be a case of disobedience of instructions. I am not satisfied any finding of contributory negligence should be made against the Plaintiff.”[4]
Appeal issues
- The Notice of Appeal and the early written submissions by the parties sought to deal with issues of contributory negligence, breach by an employee of an implied contractual duty to take care and the right of an employer to cross claim for such a breach. These questions were considered in ANI Corporation Limited v Wylie[5] but did not arise for the learned trial judge because of his finding that there was no negligence or breach of duty on the part of the respondent.
- For the reasons hereafter set out we are of the view that the learned trial judge was correct in his conclusion and consequently there is no warrant for further consideration of those questions on this appeal.
- The appellant attacks the findings of the learned primary trial judge as being founded upon too fragile an (evidentiary) base to support them. The appellant submits that His Honour should have been moved (or more moved) by evidence of the system of initial safety instruction for employees and the re-instruction of any employee who was observed to be doing something wrong and by evidence from the respondent that he was aware that he had to wear protective equipment, that he had in fact worn the mesh glove on the day of the incident and knew its purpose was to avoid being cut. The appellant submits that the respondent chose not to wear the mesh glove because of his personal comfort. It argues this would have been the outcome even if the instruction to wear the glove had been repeated and enforced and that therefore the lack of instruction was not the cause of the injury.
- The appellant contends that this case bears the character of cases such as Jackson v Coal Resources of Queensland Limited[6] which concerned a person injured in the performance of a simple task with an obvious danger. Ultimately the outcome of such cases turn on their own facts. In the joint judgment in Jackson the following appears:-
“No doubt also minds may differ as to the extent to which in the performance of a simple task which nevertheless may place a person in a situation of danger unless performed with care, detailed instructions and constant supervision are necessary. But we cannot be satisfied that the learned primary judge was wrong in the present case when he said that it ‘is difficult to see what extra information the defendant should have given him to alert him to the risk of injury.’”[7]
- Here the learned primary judge in comprehensive reasons identified the extra information and instruction that ought to have been given by the appellant to this inexperienced knife hand in fulfilment of its duty as an employer.
- Despite the detailed submissions in which were identified various passages of the evidence to which the learned trial judge did not make reference, there was in our view, ample evidence to support the specific findings of fact which His Honour did make and which formed the basis for his decision. In particular, His Honour found that at times the plaintiff did not wear the mesh glove whilst working in the gut box area.[8] The plaintiff’s evidence about not wearing the glove at all times was supported by the observations of his co-worker Mr Salvador (whose evidence the learned trial judge found convincing).[9] Mr Salvador gave evidence that he was not reprimanded for not wearing a mesh glove when Mr Monaghan carried out his supervisory duties in the gut box area.
- The material findings of fact are well supported in the evidence. His Honour has identified the evidence upon which he has relied and his basis of preferring that evidence to contrary suggestions. The fact that His Honour did not make reference to some concessions made by the respondent in cross examination about his awareness that he could be injured if he did not wear protective clothing does not diminish His Honour’s appreciation of the inadequacies in the system of work which he identified in his reasons.
- In all the circumstances it has not been shown that the learned primary judge was wrong in the conclusions he reached on the issue of liability.
Impairment of earning capacity
- The appellant argues that the allowance of $40,000.00 for impairment of earning capacity is, in accordance with the principle in Elford v FAI General Insurance Company Limited,[10] so far out of line with an appropriate award as to require the intervention of this Court.
- The respondent, as a consequence of this incident, suffered a division of a tendon in his right index finger and minor damage to the digital nerves. He has been left with a 5-10% disability of his right (non dominant) arm. The statement of disability is not reflective of the difficulty which the respondent experiences when the arm is used. He suffers symptoms of constant pain if engaged in activities requiring strenuous use of the arm. The pain eases or is not present when the arm is not so used. It is this need to avoid the heavy use of the arm which has influenced the respondent’s choice of employment and the extent of the claim that he makes for impairment of earning capacity. There is no recommendation for further treatment and no likelihood of improvement in the respondent’s condition.
- After recovering from the effects of the injury, the respondent returned to his employment at the meat works on 8 February, 1996. He worked there, but with considerable pain, until October, 1998 when he was no longer able to cope with the symptoms. He had made requests of the personnel office for lighter duties from time to time. This resulted in his being assigned to driving a fork lift but only for short periods at a time. Even driving the forklift involved some heavy work such as manoeuvring heavy hides onto the forklift and strapping the hides with tape. It was the level of pain which he was experiencing and the lack of opportunity for alternative duties which caused him to resign from the meatworks. His Honour appears to have accepted the respondent’s explanation that he continued in this employment because the income “was higher than he might have expected to receive elsewhere.”[11]
- Before commencing employment with the appellant, the respondent worked in his capacity as a qualified baker. He gained those trade qualifications in 1984 and worked using the qualifications for the next 10 years. In evidence he identified a number of tasks which involved the heavy use of both hands which would be beyond his post-accident capacity. As a consequence he approached relatives to create a position for him in a pizza shop which was within his capacity but which returned a significantly reduced income. The differential between the weekly wage at the meatworks and the pizza business was approximately $130.00 per week.
- The learned trial judge found that it was reasonable for the respondent to seek lighter employment but found also that there was some “potential opportunity for him to [gain higher remuneration by] returning to his trade as a baker, although there is some restriction in that employment”.[12] His Honour found particularly that the respondent had not exercised his full earning capacity over the 16 month period prior to trial.[13]
- At the time of trial the plaintiff was 35 years of age. The potential working period during which he would suffer some diminution in earning capacity was between 25 – 30 years. The learned trial judge projected his loss over 20 years, which, in itself, constitutes a significant discount in the computation of the allowance of $40,000.00. The allowance in this sum reflects a diminution of earning capacity of $60.00 per week over that period, virtually a halving of the differential between the respondent’s potential earnings at the meatworks and his present earnings.
- It cannot be said, in our view, that this allowance for loss of earning capacity – effectively a $60.00 per week loss over a 20 year period - is out of line with an appropriate award in the circumstances of this case.
- We would therefore dismiss the appeal and order that the appellant pay the respondent’s costs.