McRoberts v Australia Meat Holdings Pty Ltd
[1997] QDC 206
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- McRoberts v Australia Meat Holdings Pty Ltd[1997] QDC 206
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McRoberts v Australia Meat Holdings Pty Ltd[1997] QDC 206
McRoberts v Australia Meat Holdings Pty Ltd[1997] QDC 206
IN THE DISTRICT COURT HELD AT TOOWOOMBA QUEENSLAND | Plaint No. 52 of 1995 |
BETWEEN:
CIMERRON JAMES McROBERTS of 7 West Street Toowoomba in the State of Queensland. | Plaintiff |
AND:
AUSTRALIA MEAT HOLDINGS PTY LTD (A.C.N. 011 062 338) a duly incorporated company having its registered office at 175 Riverview Road Dinmore in the State of Queensland. | Defendant |
REASONS FOR JUDGEMENT - McGILL D.C.J.
Delivered the 17th day of September 1997
The plaintiff was injured on 23 December, 1993 in the course of his employment as a laborer at the defendants abattoir. He claims that as a result of the injury he has been left with a permanent disability in the right arm causing a loss of earning capacity and other problems. Liability and quantum are both in issue.
Circumstances of the accident:
The bones, fat and other offcuts produced at the plant were brought on a conveyor belt into a room called the cracker room (p. 11). The conveyor belt deposited them at the base of an auger which lifted them to the top of a machine which ground them up as part of the process of converting them into the fertilizer blood and bone (p. 12). There was evidence that the machine broke down at times (p. 15, p. 115), and when this occurred the defendant, in order to avoid stopping the whole plant, would position a laborer or two in the cracker room next to the end of the conveyor belt to pull off the bones as they came along to the end of the belt and dump them on the floor. If this were not done they would pile up on the end of the auger and I suppose eventually build up on the conveyor belt interfering with its operation. Once the cracker was Operating again the bones would be picked up from the floor and put into the end of the auger. If the cracker took some time to repair the quantity of bones which piled up could be quite substantial. There was evidence from the plaintiff and from Mr Sutton that at times they piled up to the level of the conveyor belt or even above, and so filled that end of the cracker room, which was not a large room, that a door had to be opened and they had to be thrown out of the room (p. 17, 116).
There was not a great deal of space between the wall and the auger where the plaintiff, or anyone else doing the job, had to stand in order to pick the bones off the end of the conveyor belt (p. 13). The plaintiff and Mr Sutton said that as the bones built up on the floor whoever was doing the job would eventually be standing on the pile of bones (p. 16, p. 116). The plaintiff said that on the day in question he was standing on the pile of bones beside the belt, when his feet slipped on the bones and slid under the belt (p. 14). As he fell his right arm was caught close to the shoulder, on a low barrier beside the conveyor belt, thereby breaking his fall. No doubt this occurred because at the time he slipped he had his right arm over the conveyor belt in order to perform his task. He then pulled himself up using his left hand. He was at the time wearing rubber boots issued by the defendant (p. 14). He and Mr Sutton said it was common for people to slip when standing on the bones in this way (p. 17, p. 117), and it is not difficult to accept that a pile of bones and fat such as this would have been quite slippery. I accept the evidence of the plaintiff and Mr Sutton about the circumstances of the accident, which was uncontradicted.
Liability
The plaintiff at the time was 16 years of age and was probably reasonably fit and agile, but when working in such circumstances there is an obvious risk of slipping and falling which no amount of agility can really avoid. There is no suggestion that there was any secure handrail available for him to hang on to, and doing his job would probably have required the use of both hands in any case. It was argued that the plaintiff could have stood still and allowed the bones to build up around his feet and legs, and in that way prevent a situation from arising when he was actually standing on the bones and running the risk of slipping and falling. Apart from the fact that this would be most unnatural posture to adopt for any extended period of time, I think that it would be difficult to cope with any irregularity in the flow of bones on the conveyor belt without having some ability to move along the fairly short length of belt within which the bones have to be lifted off. I am not impressed by the suggestion that the plaintiff could have braced himself against the conveyor belt: see Exhibit 10. In any case there was no evidence that the plaintiff was ever given instruction as to how to do this task properly even if that would enable the risk of injury to be sufficiently reduced.
I do not regard the risk as an unavoidable one. The plaintiff could have been provided with a platform with a suitable surface and a barrier around it to keep the bones off the platform, from which to do the work. Probably a simpler solution however would have been to remove or open the barrier at the other side of the base of the auger. It appears from the photographs in Exhibit 10 that there was already some sort of opening in that position (photograph number 1) but if that were not suitable one could be installed there so that if the auger stopped the bones coming off the belt, after piling up to only a small extent, would simply fall off the other side of the auger housing onto the floor. If the breakdown continued the pile of bones could be spread around somewhat with rakes from positions of safety.
In these circumstances the plaintiff was plainly exposed to risk of injury, through slipping and falling, and the defendant has failed to take reasonable (or any) steps to remove or minimize that risk and was therefore in breach of its duty as an employer at common law. In the alternative a claim is made for breach of statutory duty relying on Section 9 of the Workplace Health and Safety Act 1989. I am not satisfied that it was not practicable for the defendant to do more to insure the health and safety of work for the plaintiff in the circumstances prevailing on this occasion, a matter in respect of which the defendant bears the onus: Rogers v. Brambles Australia Ltd. (QLR 28.6.97). I therefore find the defendant liable both for negligence and for breach of statutory duty.
There was a plea of contributory negligence, and it was argued on behalf of the defendant that the plaintiff was negligent in failing the brace himself against the conveyor belt, or in failing to call for assistance. As to the former, I have referred to the absence of instruction, and having looked at the photographs it is not immediately obvious to me how the plaintiff could have gone about bracing himself in the way suggested. As to the question of calling for assistance, the plaintiff's evidence was not that he was unable to cope with work. It is not clear how having two people there would have reduced the risk of his slipping. The system of work offered by the defendant did not involve the placing of the bones in bins or otherwise keeping them clear of the floor, and it was not a matter for the plaintiff to attempt to modify the system of work to make it safer. The plaintiff was a young laborer who was doing what he had been told to do in accordance with the system adopted by the defendant. c.f. Commissioner for Railways v. Halley (1978) 20 ALR 409 at 413. I find there was no contributory negligence by the plaintiff.
Quantum
There is no dispute that as a result of the fall the plaintiff suffered damage to the long thoracic nerve, which has resulted in paralysis of the serratus anterior muscle: Exhibit 7. Although such condition would normally recover, it does not always do so and in the present case it has not, and in view of the time which has elapsed since the accident it is reasonable to conclude that it will not do so. As pointed out by Dr Anderson in a report tendered on behalf of the defendant (Exhibit 7), the muscle is an important muscle which controls the scapula by holding it against the chest wall to allow movement of the shoulder joint. It is a powerful muscle used in pushing the arm forward, and when paralyzed it means the ability to lift the arm is diminished in terms of power and range. Dr Anderson put the disability at 20% of loss of use of the right arm: the plaintiff's expert witness, Dr Pentis, put the level of disability at 25%: Exhibit 1. It may be that the explanation for the difference in that Dr Pentis thought that the plaintiff had also developed some rotator cuff problems which he thought probably occurred at the same time. This condition was not mentioned by Dr Anderson, and I was left with the impression that Dr Pentis was somewhat uncertain about it also (p. 45), since as he pointed out the paralysis of the serratus anterior muscle will often be associated with pain on use of the shoulder (p. 39, 44). It may well be that problems with the rotator cuff are secondary to a disturbance in shoulder function associated with the muscle paralysis. If so they may be to some extent self limiting, since the plaintiff has said he is trying to use his left hand as much as possible (p. 30). He was right handed (p. 8), and he is trying to become left handed, and particularly attempts to avoid doing things which involve lifting the right hand.
When the mechanism of the fall as described by the plaintiff in his evidence was put to Dr Pentis he thought that could well lead to that sort of injury to the long thoracic nerve, but he thought it was less likely to result in injury to the rotator cuff, although that was possible (p. 45). On the whole I think it probable that the problems the plaintiff suffers in the shoulder were caused by this incident at work, either directly through some injury to the rotator cuff on that day, or indirectly as a consequence of the disturbance of the function of the shoulder through the paralysis of this important muscle. Obviously the plaintiff did suffer a significant injury on this day, since it caused the damage to the nerve which has led to the muscle paralysis.
When the plaintiff was seen by his GP Dr Carey three days after the incident, Dr Carey noted complaints of pain in the shoulder and the prominent right scapula (p. 85). I suspect that was consistent with the paralysis of this muscle, although the condition was not as clear cut as it became some months later when the muscle had suffered significant wasting as a consequence of the paralysis (p. 86). Dr Carey said (p. 96) that there was no muscle wastage present in December 1993, but several months later when he next examined the plaintiff there was significant muscle wasting, which was consistent with the injury having been suffered in December 1993 (although it did not fix the date of the injury with any precision). The plaintiff's mother said (p. 111) that when she saw the shoulder at about this time it was quite different from the way it had been when she had last seen it, although that was apparently quite a long time earlier since at the time of the accident the plaintiff was not living with his mother.
On the day of the accident the plaintiff continued at work for some hours although he said that he used his left hand as much as possible because of the pain in the right shoulder (p. 19). He did not go to the doctor for three days, hoping that the condition would settle (p. 20). His mother's evidence was to the effect that the plaintiff rarely sought medical treatment (p. 112). After the Christmas break the plaintiff returned to work, and seems to have continued at work for some considerable time thereafter, although from time to time the work would get too much for him (p. 22). When he became a packer and was required to do more lifting and stretching he had greater difficulty in coping (p. 25), something that is understandable in light of the medical evidence, and no doubt suffered more pain in the shoulder. Eventually he gave up work for the defendant in April this year (p. 29) and has been seeking alternative employment in Toowoomba and the Gold Coast, although apparently only on a casual basis (p. 30). The evidence of his efforts to obtain alternative employment was very vague and I am not persuaded that the plaintiff's inability to find employment with which he can cope is demonstrated by his having failed to find any notwithstanding having made some effort to do so over the last three months.
I think that the difficulties that the plaintiff had in the course of his employment until he stopped work as a meat worker served to confirm that the plaintiff is as a result of this injury unsuited to the relatively heavy and demanding work required of a meat worker. The fact that he was able to persevere with it for so long suggests however that it is not far beyond his capacity, which in turn suggests that activities which were perhaps not all that much less demanding would not be beyond him. Such a view is supported by the fact that he has been far from inactive in other respects since the accident. He has an interest of some long standing in boxing, and has from time to time since the accident engaged in boxing training, although not perhaps as intensively as he would have had he not been injured, and has since the accident even engaged in one short professional bout as a boxer (p. 23). Dr Carey was of the opinion that the paralysis of the muscle would probably strictly speaking render him medically unfit to box professionally (p. 94). It is certainly not the sort of activity which is going to be kind on his shoulder, and I suspect that boxing and more importantly the training, particularly sparing and punching bags (p. 133), is likely to have aggravated any problems he has had with his rotator cuff. The plaintiff has also on occasions played football since the accident (p. 24,34). No doubt his ability to play football is not what it was, but on the other hand the fact that he was prepared to attempt it does not suggest he is now seriously disabled by this injury.
Some of his evidence about not using the right arm may have overstated the position somewhat. Dr Pentis found a full range of movement of the right shoulder that was pained on stressing the muscles, apparently only on such stressing: Exhibit 1. There was evidence which I accept that the plaintiff has since the accident on those occasions when he has been engaged in boxing training at a gymnasium undertaken as part of the training thirty push-ups (p. 133). This suggests that even under those conditions the plaintiff does not suffer severe pain in the right shoulder, and he still has some reasonable capacity for use of the right arm.
I think that if the plaintiff continues to try to use his left hand rather than his right and attempts to avoid the sort of activities which will aggravate his right shoulder and avoids the sort of heavy and repetitive work which would aggravate it, his continuing symptoms will not be all that severe. I think that his disability is more based on functional limitation than pain. If he continues to provoke the rotator cuff then that condition could deteriorate but otherwise it is not suggested that the condition in likely to become worse in the future. The plaintiff is not in continuous pain, although he did say that he had some pain pretty well every day (p. 35). An important factor is his age: he was born 24 December 1976, (p. 8) and was 17 three days after his injury. He is now 20. He will have these symptoms for the rest of his life.
The plaintiff has complained about some deterioration in his temper and his motivation since this accident. Prior to the accident the plaintiff was interested in boxing and football which he had played at school and with a football club (pp. 8-9). No doubt these physical activities were an important source of his self esteem prior to the accident, and he has been left in a condition where it is probably better for him not to engage in that vigorous physical activity. I can understand his being unhappy and frustrated as a result of this. This is significant in terms of loss of amenities, although I think it is appropriate to bear in mind that there is some risk of injury associated with playing football and quite a lot associated with boxing, and minimizing his involvement in these activities is likely to be good for his physical health.
The plaintiff has some criminal history dating from March 1995, including convictions for assault, arson, and attempted false pretenses: Exhibit 11. This was put in evidence to damage the plaintiff's credibility, but it was argued that this sort of behavior was indirectly a consequence of the accident because of the loss of the more constructive physical outlet in competitive sports. There is however no actual evidence of any causal link, and I am not persuaded there was one. It is apparent that the plaintiff's home life has been somewhat unsettled, and that sort of thing is common in the backgrounds of those who come before the this court in its criminal jurisdiction.
The plaintiff's credibility was also attacked on the basis that he had sworn to a interrogatory claim that he had had gratuitous domestic assistance provided to him by two named girlfriends (p. 70), who were called and who denied having provided any such assistance (p. 127, 130). I am satisfied they did not provide assistance, and that the plaintiff's answer to the interrogatory was unreliable in this respect. In view of this and in the light of his conviction for an offence involving dishonesty, I have been cautious about accepting his evidence, but I think that much of what he told me was generally reliable. I am not so sure however that his evidence about the extent of his ongoing pain and, more particularly the restriction of his use of the right arm is reliable, particularly in the light of the evidence of his post accident activities. I think he has been to some extent exaggerating the extent of his disabilities, although I do not think he was deliberately trying to mislead me. I think he was presenting his account of his difficulties as fully and as pessimistically as possible. I suspect also that as he gets older he will adjust more to his condition and accommodate it better. I assess damages for pain and suffering and loss of amenities in the sum of $25,000, of which I apportion $7,000 to past loss. In making this assessment I have had regard, as a source of some guidance, to the assessments made in Glanville v. Cross (Forde DCJ, Plaint 2689/90, 17.12.91); Fidler v. Green (Pratt DCJ., Mackay Plaint 68/90, 22.10.92); Thurlow v. Arndette Pty Ltd (Williams J., Cairns Writ 101/95,30.11.95); Kelly v. CSR Ltd (White J., Writ 29/94, 16.8.96).
With regard to past economic loss, exhibit 8 identifies 6 periods when it was said the plaintiff was off work as a result of problems associated with his shoulder injury. This totals 25 and a half weeks. I think however that I should make some allowance for the possibility that had the accident not occurred the plaintiff may have lost some time from work during this period in any event, and for the fact that the plaintiff has done some casual work since he left the defendant's employment: p. 30. I think also that the plaintiff has not really been making reasonable efforts to obtain alternative employment during that period. Therefore I will allow past economic loss in the sum of $6,500.
Mr Sutton who had started work at the same time as the plaintiff, and was now working as a boner, earned $552.15 after tax for the week ended 15 June 1997 (Exhibit 14) but that included payment for time worked on a public holiday and it is not clear whether this would have inflated that week's pay (Exhibit 14 actually suggests that it did not). If the plaintiff would have earned say $540.00 net per week as a boner a loss at that rate over a period of 40 years would produce a present value with a discount rate of 5% of $487,000, but this is unrealistic as a measure of potential earning capacity, for a number of reasons. Work as a boner is not necessarily constant, since it depends on economic and I suppose industrial considerations which may well cause periods of unemployment. There is a reference for example at page 29 to a stand down at Beef City in September 1995. During this time the plaintiff obtained work with which he could cope at Queensco, a cheese factory, but there was no evidence as to what he was earning in that job. There is no evidence about the extent to which individuals do make a lifetime career of work as a boner: it does seem to be fairly heavy work, and I have a suspicion that it would be unusual for anyone to work as a boner for 40 years, but I really do not know.
Indeed there is not much evidence about his current earning capacity. There was evidence that he was earning about $320.00 nett per week when he left the defendant, doing work with which he really could not quite cope. Doing the best I can it seems the plaintiff has a residual earning capacity of the order of $300.00 per week. Some allowance should be made for the fact that the plaintiff will probably spend more time unemployed because of his inability to do heavy laboring work, and for the other vicissitudes of life. That would reduce the present value of his current earning capacity over 40 years from $271,000 to perhaps $240,000.
The difficulty with this sort of calculation is that it provides an appearance of mathematical accuracy which is unjustified by the very weak factual foundations on which it is built. Given the age of the plaintiff, it is very difficult to know either what he would have made of his life if this accident had not occurred or what he will make of his life now. Some aspects of his history are positive but some are not. There was evidence that there were a number of occasions on which he had been warned by his employer (p. 76), and this suggests an attitude towards authority which would not make him a particularly desirable employee, circumstance which may be supported by the fact of his criminal history. However I do not know whether he was unusual in the number of warnings he received from his employer.
In all the circumstances I do not think it is appropriate to place too much reliance on any calculations of this nature. I think in this case that a global award is more appropriate, which takes into account all of the above, evidence as to the plaintiff's pre and post accident earning capacity, my overall assessment of the plaintiff, and the fact that the onus is on the plaintiff to prove his economic loss as a result of the accident. I have also had regard to the approach adopted by the Court of Appeal in Suncorp Insurance and Finance v. Fitchett (Appeal number 2648/96, 6.5.97) where the court substituted an award for future economic loss of $90,000 in the case of a 33 year old plaintiff who had suffered 45% loss of function in the left leg, likely to increase to 70% in the long term, which significantly interfered with his capacity to work as a grazier. Doing the best I can I think that a reasonable assessment for the plaintiff's future economic loss is $120,000.
A claim is made for gratuitous assistance, but the evidence about this from the plaintiff at pages 35-37 is very vague and unsatisfactory. Although eventually an estimate of the number of hours per week was extracted from him by his counsel (p. 37), the figure given was quite inconsistent with the general tenor of his evidence about this matter and I cannot regard it as reliable. I have the distinct impression that very little assistance was actually provided. The matter is complicated by the fact that the plaintiff said (p. 36) that he had help from a couple of girlfriends, but did not there name them. Under cross examination (p. 69) he identified two of them as Julie Bryant and Michelle Halter, and he also said that Joanne Royal provided some assistance around the house (p. 69). Ms Royal and Ms Bryant were called and said they had not provided such assistance (p. 127, 130), which makes this claim even more doubtful. I accept their evidence. The plaintiff was never seriously disabled by his injury: he remained at work on the day he was injured, and worked on the next three days, although he modified his work patterns to accommodate the problem with his right arm. On the whole I am not persuaded that the plaintiff ever had any need for assistance as a result of his injuries, and if there was any help provided by the young men with whom he was living at the time it was minimal, I am not satisfied that there is any basis on which to make any award for gratuitous care.
Special damages represent the amounts paid by the workers compensation board (Exhibit 16) totaling $1,353.94 should be allowed. In addition I allow the sum of $910.75 by way Fox v. Wood component (Exhibit 15), since I understand that the plaintiff would not at the present time be able to obtain a refund of this amount on application to the Australian Taxation Office.
Summary
I assess damages as follows:
(a) Pain and suffering and loss of amenities | $25,000.00 |
(b) Interest on past component at 2% for 3⅔ years | $513.00 |
(c) Past economic loss | $6,500.00 |
(d) Interest on $1,905.62 at 4% for 3⅔ years | $279.00 |
(e) Future economic loss | $120,000.00 |
(f) Special damages | $2,264.69 |
SUB-TOTAL | $154,556.69 |
Less refund to Workcover | $6,861.07 |
BALANCE | $147,695.62 |
I therefore give judgment for the plaintiff for $146,903.62 together with interest of $792. I order the defendant to pay the plaintiff's costs of and incidental to the action including reserved costs (if any) to be taxed.