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  4. Lowe v Greenmountain Food Processing Pty Ltd - [2024] QDC 204

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Lowe v Greenmountain Food Processing Pty Ltd[2024] QDC 204

Lowe v Greenmountain Food Processing Pty Ltd[2024] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Ritchie James Edward Lowe v Greenmountain Food Processing Pty Ltd [2024] QDC 204

PARTIES:

RITCHIE JAMES EDWARD LOWE

(plaintiff)

v

GREENMOUNTAIN FOOD PROCESSING PTY LTD (ABN 46603 161 100)

(defendant)

FILE NO:

ID24/2020

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Ipswich

DELIVERED ON:

29 November 2024

DELIVERED AT:

Ipswich

HEARING DATE:

1, 2, 3, 4 August 2022 and 17 February 2023

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

  1. 1. Claim dismissed

CATCHWORDS:

WORKERS COMPENSATION – LIABILITY TO PAY COMPENSATION – LIABILITY OF EMPLOYER – whether the defendant is liable for the plaintiff’s injuries – where the defendant accepts they owe a duty to exercise reasonable care to guard against foreseeable risks – where the plaintiff has failed to make out a case of liability against the defendant

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – GENERALLY – assessment of common law damages under Part 9 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)

LEGISLATION:

Workers Compensation and Rehabilitation Act 2003 (Qld) ss 306O, 306P, sch 9

Workers Compensation and Rehabilitation regulations 2014 (Qld) sch 8

CASES:

Hobbs & Anor v Oil Drive [2008] QSC 45.

Fox v Wood (1981) 148 CLR 438

COUNSEL:

R D Green for the plaintiff

B Munro for the defendant

SOLICITORS:

Smiths Lawyers for the plaintiff

BT Lawyers for the defendant

Summary

  1. [1]
    In the course of performing meat processing work on the morning of 1 April 2019, when aged 23, the plaintiff’s right index finger came into contact with the blade of a bandsaw he was using.  He suffered significant injury; the partial amputation of his finger.  Notwithstanding the seriousness of his injury, he made a reasonably good recovery and was certified as being able to perform suitable duties from 27 April 2019.  His treating orthopaedic surgeon certified him as fit to return to his usual employment from 3 September 2019.  For reasons which remain unsatisfactorily explained, he did not do so.  He did, however, subsequently take up much more remunerative employment.  He also later returned to playing A Grade Rugby League with considerable success.
  2. [2]
    He brings this proceeding against the defendant, his former employer, alleging a multiplicity of breaches of duties owed to him as an employee.  Notwithstanding his certified fitness for his former work, his return to other more highly remunerative work and his demonstrated footballing ability as a playmaker repeatedly using his injured finger,[1]  he claims past economic loss in the sum of $79,200 and future loss of earning capacity of $460,000.  Those claims are entirely unmaintainable on the evidence.
  3. [3]
    However, for reasons which follow, the plaintiff has failed to make out a case of liability against the defendant.  The defendant accepts it owed him a duty to exercise reasonable care to guard him against foreseeable risks of injury.  It concedes that given the need for the plaintiff, or any worker in his position, to manually pass meat being processed through a bandsaw in a way which, necessarily, brings the worker’s fingers in close proximity of an unguarded blade, the risk of an injury of this kind is foreseeable and is not insignificant.
  4. [4]
    The plaintiff has, however, failed to prove any breaches of duty which he alleges.  Indeed, the particular risks and the measures which he alleges should have been taken to address them proved to be something of a moving feast with the matters articulated in the plaintiff’s final submissions bearing little resemblance to those pleaded and particularised.  Of those that were pleaded and particularised some were formally abandoned, no doubt because there was no evidentiary case to support them. Others went unaddressed, probably for the same reason, and others were contradicted or disproven by the plaintiff’s own evidence. 
  5. [5]
    By these observations I do not mean to speak perjoratively  of the plaintiff’s case.   Rather, it may simply be that they demonstrate why it is that not all workplace incidents and the resultant injuries can be sheeted home to an employer’s negligence, no matter how the worker may perceive events or rationalise how they must have come about, or how broadly a case may be pleaded.

Liability

  1. [6]
    An analysis of the reasons why the plaintiff has failed to make out a case of liability can conveniently commence with the evolving nature of his case.  To that end, it is convenient to start with how his case was pleaded, particularised and, ultimately, addressed upon.
  2. [7]
    In the plaintiff’s further amended Statement of Claim,[2] the alleged duties were pleaded, in very general terms, as follows:
  1. “3.At all times material to the proceeding it was the duty of the defendant to:
  1. (a)
    take all reasonable precautions for the safety of the plaintiff with respect to the provision of plant or equipment for the plaintiff’s use in the course of his employment with the defendant;
  2. (b)
    take reasonable care to ensure the plaintiff was not exposed to a risk of injury whilst performing his work for the defendant by among other things undertaking appropriate risk identification assessments;
  3. (c)
    take reasonable care to ensure that the plaintiff was not at risk of personal injury in undertaking his duties in the ordinary course of his employment;
  4. (d)
    take reasonable care to ensure that the duties to which the plaintiff was directed, and the manner in which he was required to perform such duties, was safe;
  5. (e)
    take reasonable care to ensure the plaintiff was not exposed to risk of injury in the system of work adopted for the purpose of fulfilling his contract of employment, particularly regarding the period of time he spent undertaking work on the bandsaw;
  6. (f)
    take reasonable care to ensure that the plaintiff was provided with appropriate plant and equipment for the conduct of his duties with the defendant in the course of his employment;
  7. (g)
    take reasonable care to ensure that the manner in which the plaintiff undertook his duties and the equipment provided to him was safe for his use;
  8. (h)
    take reasonable care to ensure that the plaintiff was provided appropriate training and instruction for the duties to which he was directed;
  9. (i)
    take reasonable care to ensure the plaintiff was provided appropriate instruction in relation to the duties he was directed to perform and the equipment he was required to use in performing such duties;
  10. (j)
    take reasonable care to ensure that the plaintiff was provided with proper or adequate supervision while undertaking work duties on the Thompson bandsaw.”
  1. [8]
    The facts and circumstances by which he came to be injured are pleaded as follows:
  1. “5.On or about 1 April 2019, at the premises from which the plaintiff undertook his employment duties with the defendant in the State of Queensland;
  1. (a)
    The plaintiff was tasked with cutting a rack of veal ribs using a Thompson bandsaw;
  2. (b)
    The plaintiff’s required to manually feed the rack of ribs towards the cutting edge of the blade and apply pressure to the meat he was cutting for the bandsaw blade to cut through the ribs;
  3. (ba)
    the veal rib rack being cut by the plaintiff was smaller in size than the rib racks he had been trained to cut using the bandsaw;
  4. (bb)
    because of the small size of the rib racks, the plaintiff was necessarily required to bring his hands and fingers in close proximity to the cutting edge of the blade of the Thompson bandsaw to comply with his training and instruction in using the Thompson bandsaw to cut rib racks;
  5. (bc)
    in the premises of the matters set forth in paragraphs 5(a) to 5(bb) hereof, the plaintiff was not able to keep his hands well clear of the cutting blade of the bandsaw, but consistent with his most immediate instruction from the employer’s servants or agents, undertook the task of cutting the veal rib racks as best as he was able;
  6. (c)
    while the plaintiff was cutting the veal rack of ribs, the rack of ribs moved as a result of slipping in the plaintiff’s hands and on the cutting guide’s surface;
  7. (d)
    when the ribs moved as described to [sic] in paragraph 5(c) hereof, the plaintiff’s right index finger came into contact with the moving blade of the bandsaw;
  8. (e)
    when the plaintiff’s right index finger came into contact with the moving blade of the bandsaw, he suffered personal injury.”[3]
  1. [9]
    The defendant’s negligence is pleaded as the cause of his injuries and particularised as follows:
  1. “7.The personal injuries and consequential loss and damage were caused by the negligence of the Defendant or by its servants or agents.

Particulars

  1. (a)
    Failing to take any or any adequate precautions for the Plaintiff whilst he was engaged upon his said employment, regarding training and instructing the Plaintiff to take measures to protect against the risk of fingers coming into contact with the Bandsaw;
  2. (b)
    Failing to provide and maintain for the Plaintiff a workstation that permitted him to attend to his duties including cutting meat with the blade of a Bandsaw without a risk of personal injury;
  3. (c)
    Failing to provide or implement and maintain a proper and safe system of work for the Plaintiff whilst he was engaged upon his said employment;
  4. (d)
    Failing to carry out any or any adequate risk identification or risk assessment with respect to the tasks to be performed by the Plaintiff in the course of his employment when cutting rib racks with the Bandsaw;
  5. (e)
    Failing to provide appropriate plant and equipment for the Plaintiff's use in the course of his employment;
  6. (f)
    Failing to implement a safe system of work;
  7. (g)
    Failing to develop a risk management approach by implementing systems or devices that would have resulted in safer plant and equipment for the Plaintiff's use at the Premises;
  8. (h)
    Failing to provide any or adequate training or instruction with respect to cutting the rib racks with the Bandsaw with particular reference to the risk of the rib rack moving in the course of a cut;
  9. (i)
    Failing to provide a workstation that permitted the Plaintiff to undertake his duties in cutting rib racks without an unreasonable risk of sustaining personal injury through contact with the bandsaw;
  10. (j)
    Failing to provide any or adequate supervision of the Plaintiff while undertaking rib rack cuts with the Bandsaw”
  1. [10]
    Lengthy further and better particulars were provided of the allegations upon which the defendant’s negligence was asserted.[4]
  1. “5.In response to paragraph 5 of the Defendant's Request concerning paragraph 7(a)(i):
  1. (a)
    In relation to the period of time that the Plaintiff ought to have spent on the Thompson bandsaw which should have been the subject of training is:
  1. i.that period up to when his concentration or attention could not remain focused on the task of operating the Thompson band saw safely or in accordance with instruction or training, with particular attention to the behaviours or mannerisms consistent with not being able to maintain concentration or attention in the operation of the band saw;
  2. ii.the period of time referable to the safe operation of the band saw including by reference to the material being cut or the risks associated with such operation of the machine;
  1. (b)
    The failure to provide such training caused or contributed to the incident on 1 April 2019 (“the incident”) by reason of the fact that the Plaintiff:
  1. i.Did not assess his capacity to undertake such duties safely, which if assessed he would have removed himself from the operation of the machine;
  2. ii.The Plaintiff was not able to assess the risks relating to the operation of the band saw in performing the cuts on the portions of meat that were smaller and slippery in so far as the Plaintiff was concerned, which risks if assessed by the Plaintiff would have enabled him to make a decision as to how to deal with such risks;
  3. iii.The Plaintiff did not consider the risks presented to him by reference to the weight, size, presentation or slipperiness of the rib racks he was cutting when the incident occurred, where if such risks had been assessed, the Plaintiff would have been able to respond to such risks;
  1. (c)
    In relation to the indicators that the Plaintiff was at risk of injury if continuing to undertake work on the Thompson bandsaw which ought to have been the subject of training:
  1. i.Falling concentration or lack of attention to safety needs in the operation of the band saw;
  2. ii.Variations in foot positioning or stance;
  3. iii.Wandering focus of vision or sight;
  4. iv.Intrusive thoughts unrelated to the task at hand in operating the band saw;
  5. v.The observation of difficulties created by the portions of meat being cut on the bandsaw including their size, weight and slipperiness;
  6. vi.The stability of the cutting band as it passed through the cutting plane;
  7. vii.The positioning of the hands by reference to the cutting edge of the band saw;
  8. viii.The production requirements relevant to the speed at which cuts of the rib racks were to be repeated by band saw operators such as the Plaintiff;
  1. (d)
    The failure to provide such further training caused or contributed to the incident by:
  1. i.Not preparing the Plaintiff properly to asses the risks associated with the operation of a dangerous piece of equipment such that he could take action to alleviate such risks;
  2. ii.Not preparing the Plaintiff to properly monitor his own conduct in the operation of a dangerous piece of equipment such that he could identify the risks to his personal safety in the operation of a dangerous piece of equipment;
  3. iii.Not preparing the Plaintiff to deal with production requirements such that he was unable to undertake the relevant tasks safely while maintaining production levels;
  4. iv.Not preparing the Plaintiff with options, in circumstances where he was unable to continue to operate the machine safely for any reason, in relation to production requirements;
  5. v.Not preparing the Plaintiff with the manner in which safety in the operation of the equipment could be prioritised by reference to all other factors impacting upon the Plaintiff's work duties.”
  1. [11]
    A second, also lengthy, set of further and better particulars were provided.[5]
  1. “1.In response to paragraph 1 of the Defendant’s Request for Further and Better Particulars of the Statement of Claim (the “Request”) regarding paragraph 7(a):
  1. (a)
    The Plaintiff says that the further training that he ought to have been provided by the Defendant to protect him against the risk of fingers coming into contact with the bandsaw includes:
  1. i.Training or instruction as to the appropriate period of time spent operating the bandsaw in circumstances where the work was repetitive in operating the bandsaw;
  2. ii.Training or instruction as to the proper and safe method of cutting smaller cuts of meat such as that he was cutting at the time of the incident;
  3. iii.Training or instruction to cease operating the bandsaw if the Plaintiff felt that he was unable to continue operating it in a fashion that enabled him to keep up with the production rate for the production line in which he was working at the time he sustained his injury;
  4. iv.Training or instruction in relation to the use of push sticks or other devices to assist the Plaintiff maintain production without permitting his hands to become too close to the cutting blade of the bandsaw;
  5. v.Training or instruction in relation to assessing his ability to undertake the cuts on smaller racks of ribs safely and requesting to be placed on another machine with blade stop functions;
  6. vi.Training or instruction in relation to the proper use and placement of the blade guide or blade guard to suit the size of the rib rack being cut by the Plaintiff at the time he sustained his injury;
  1. (b)
    The Defendant’s failure to provide the training or instruction referred to in paragraph 1(a) hereof caused or contributed to the Incident in that:
  1. i.The Plaintiff was required to remain on the machine without adequate and appropriate rotation or adequate and appropriate breaks, and;
  1. A.Had the Plaintiff been able to take adequate or appropriate breaks or be adequately or appropriately rotated from the operation of the machine his risk of injury would have been removed or minimised in the operation of the bandsaw;
  2. B.Had the Plaintiff been able to take adequate or appropriate breaks or be adequately or appropriately rotated from the bandsaw operation with the known risks to person while cutting small rib racks the risk of injury could have been removed or minimised;
  1. ii.The Plaintiff was unable to operate the machine he was allocated to for the purpose of cutting the rib racks that were smaller in size so that his fingers did not come into close proximity to the cutting blade of the bandsaw, and:
  1. A.Had the Plaintiff been instructed or trained in safely operating the bandsaw while cutting the smaller cuts of rib racks his fingers would not have come into such proximity to the cutting blade of the bandsaw;
  2. B.Had the Plaintiff been provided instruction or training in relation to the safe operation of the bandsaw while cutting the smaller sized rib racks he would have been able to undertake the work without permitting his fingers to come into such close proximity to the cutting blade of the bandsaw;
  3. C. Had the Plaintiff been provided training or instruction in relation to cutting the smaller sized rib racks he would not have suffered the injury he sustained;
  1. iii.The Plaintiff was unable to assess his exposure to risks to personal safety because had the Plaintiff been provided with training or instruction in relation to such matters as referred to in paragraph 1(a)(iv) he would have been able to make decision reflected in paragraphs 1(b)(i) to 1(b)(ii) hereof, which paragraphs the P1aintiff repeats and relies upon;
  2. iv.The Plaintiff was not trained in, instructed about or made aware of the availability of push sticks or other devices to assist the Plaintiff maintain production while cutting smaller rib racks without permitting his hands to come into close proximity to the cutting blade of the bandsaw when the incident occurred, and;
  1. A.Had the Plaintiff been so instructed or trained he would have been able to utilise such implements to maintain production without permitting his fingers to come into such close proximity to the cutting blade of the bandsaw;
  2. B.Had the Plaintiff been so instructed or trained he would have been able to maintain production rates without permitting his hands or fingers to come into such close proximity to the cutting blade of the bandsaw while maintaining production rates;
  3. C.Had the Plaintiff been so instructed or trained he would have been able to make use of such implements or devices to undertake his duties safely;
  1. v.The Plaintiff was unable to assess his ability to operate the bandsaw machine safely in performing cuts of the smaller rib racks, and;
  1. A.Had the Plaintiff been able to properly assess his ability to operate the bandsaw machine safely he would have been able to make decisions about his continued operation of the bandsaw;
  2. B.Had the Plaintiff been able to properly assess his ability to operate the bandsaw safely he would have been able to request moving to a bladestop machine;
  3. C.Had the Plaintiff been able to properly assess his ability to operate the bandsaw safely he would have been able to request moving to a bladestop machine which would have enabled the Defendant to make decisions about the safety of the Plaintiff consistent with him not being exposed to a risk of personal injury while cutting small rib racks;
  1. vi.The Plaintiff was not trained or instructed in the proper placement or alignment of the blade guide and was not instructed or trained in the use of a blade guard, and:
  1. A.Had the Plaintiff been able so trained or instructed he would have been able to adjust the blade guide or the blade guard so as to enable him to undertake his tasks in the continued operation of the bandsaw in cutting the smaller rib racks without risk of personal injury;
  2. B.Had the Plaintiff been so instructed or trained, he would have been aware of steps he could take to make his duties safe by enabling him to undertake the tasks without his fingers coming into such proximity to the cutting blade of the bandsaw;
  3. C.Had the Plaintiff been so instructed or trained, any request or attempt by the Plaintiff to adjust the saw guide or a safety guard would have put the Defendant in a better position to manage the risk of personal injury to the Plaintiff in relation to the use of a machine it knew was operated with risk of personal injury.
  1. 2.In response to paragraph 2 of the Request regarding paragraph 7(b) of the Statement of Claim:
  1. (a)
    The Plaintiff alleges that the workstation he ought to have been provided was one where:
  1. i.The Plaintiff was operating a bandsaw with a bladestop function;
  2. ii.The Plaintiff was aware of the importance of adjusting the blade guide;
  3. iii.The Plaintiff was aware of and able to use a blade guard;
  1. (b)
    The Defendant’s failure to provide a workstation as outlined in paragraph 2(a) hereof caused or contributed to the Incident as:
  1. i.The Plaintiff would not have suffered the injury or an injury with the seriousness he has experienced if he had been operating a machine with bladestop function;
  2. ii.The Plaintiff would have been able to maintain production rates without risk of personal injury, if he was provided a workstation with adjustment to the blade guide of blade guards;
  3. iii.The Plaintiff would have been put into a position to assess his concentration, ability, competence or attention in relation to undertaking the tasks of cutting the smaller rib racks had he been provided a workstation as outlined in paragraph 2(a) hereof;
  4. iv.The Defendant would have been in a better position to assess the safety of the Plaintiff in undertaking the tasks he was directed to when the Incident occurred had he been provided with a workstation as outlined in paragraph 2(a) hereof.
  1. 3.In response to paragraphs 3 of the Request regarding paragraph 7(e) of the Plaintiff’s Statement of Claim, the Plaintiff says that:
  1. (a)
    The plant and equipment that ought to have been provided includes:
  1. i.The matters set forth in paragraph 2 hereof which paragraph the Plaintiff repeats and relies upon;
  2. ii.Push sticks or other similar devices ought to have been provided;
  3. iii.A blade guard should have been provided for the machine that was being operated by the Plaintiff at the time of the Incident;
  1. (b)
    The Defendant’s failure to provide the plant and equipment referred to in paragraph 3(a) hereof caused or contributed to the incident as:
  1. i.A workstation as referred to in paragraph 2 hereof would have:
  1. A.Enabled the Defendant to better assess the risks to the Plaintiff’s person in operating the machine by any activation of the bladestop function;
  2. B.Enabled the Plaintiff to operate a bandsaw without the risk of personal injury or would have minimised the risk of personal injury;
  1. ii.Push sticks or other such similar devices would have enabled the Plaintiff to operate the bandsaw without his fingers coming into such proximity to the cutting edge of the bandsaw;
  2. iii.The positioning of a blade guard would have enabled the Plaintiff to undertake his work tasks without his fingers coming into such close proximity to the cutting edge of the bandsaw.
  1. 4.In response to paragraph 4 of the Request regarding paragraph 7(g) of the Plaintiff’s Statement of Claim, the Plaintiff:
  1. (a)
    Says that the systems the Defendant failed to implement include:
  1. i.The training or instruction referred to in paragraph 1 hereof, which paragraph the Plaintiff repeats and relies upon;
  2. ii.A system of work that provided for shorter periods of operation of such machines as the bandsaw, or alternatively greater rotation of such duties, for workers such as the Plaintiff given his experience and training;
  3. iii.A system that provided for monitoring or assessment of concentration, attention, competence, or confidence on the part of machine operators apart from errors in undertaking the tasks;
  4. iv.A system that provided for the use of guards or push sticks or other such implements or devices, that enabled smaller rib racks to be cut without the need for the operator’s fingers to come into such proximity to the cutting edge of the bandsaw while cutting smaller rib racks;
  5. v.A system that provided for the use of bandsaw machines with the bladestop function when operators were cutting smaller rib racks such as that undertaken by the Plaintiff when the Incident occurred;
  6. vi.A system that provided for monitoring and enforcement of documented procedures and training related to the use of bandsaws with particular reference to the adjustment of the blade guide and blade guard;
  7. vii.A system that provided for the assessment of the ability of machine operators to safely operate bandsaw machines such as that operated by the Plaintiff when the Incident occurred in circumstances where the rib racks were of a smaller size;
  1. (b)
    The Defendants failure to implement the systems referred to in paragraph 4(a) hereof caused or contributed to the incident as:
  1. i.The Plaintiff was not adequately trained such that the matters set forth in paragraph 1(b) hereof, which paragraph the Plaintiff repeats and relies upon, applied to the Plaintiff in the task he was performing when the Incident occurred;
  2. ii.The Plaintiff’s exposure to the risk of personal injury would have minimised or removed had he not been required to operate the bandsaw for the length of time he was operating it;
  3. iii.The Plaintiff’s exposure to the risk of personal injury would have been minimised or removed had he been assessed in terms of his concentration, attention, competence or confidence in operating the machine he was using, and performing such repetitive work, when the Incident occurred;
  4. iv.The Plaintiff would have been able to minimise or prevent the injury with the use of push sticks or other such similar devices or implements, that enabled him to undertake his tasks without his fingers coming into such close proximity to the cutting edge of the bandsaw;
  5. v.The Plaintiff would have been able to minimise or prevent injury or injury as serious as he suffered had he been using a machine with the bladestop function;
  6. vi.The Plaintiff would likely have been able to minimise or prevent the injury had his training been monitored or enforced in relation to the use of the bandsaw with particular reference to the use of the blade guide or the blade guard;
  7. viii.The Plaintiff would likely have not suffered the injury had he been properly assessed as to his ability to undertake the relevant tasks in accordance with production line requirements when cutting smaller sized rib racks;
  1. (c)
    The devices the Defendant failed to implement include the matters referred to at paragraph 3 hereof which paragraph the Plaintiff repeats and relies upon;
  2. (d)
    The Defendant’s failure to implement the devices referred to in paragraph 4(c) hereof caused or contributed to the Incident as are otherwise outlined in paragraph 4(b) hereof, which paragraph the Plaintiff repeats and relies upon.
  1. 5.In response to paragraph 5 of the Request regarding paragraph 7(i) of the Plaintiff’s Statement of Claim:
  1. (a)
    The Plaintiff repeats and relies upon the matters set forth in paragraph 2(a) hereof in relation to the workstation that ought to have been provided to the Plaintiff;
  2. (b)
    The Plaintiff repeats and relies upon the matters set forth in paragraph 2(b) hereof in relation to the manner in which the Defendant’s failure to provide such workstation caused or contributed to the Incident.”
  1. [12]
    Notwithstanding the extent and elaborate complexity of the allegations of negligence in the plaintiff’s evidentiary case there was a complete absence of any evidence which would support most of it.  A few specific examples will illustrate the more general point.
  2. [13]
    Notwithstanding the pleaded case that the Plaintiff was inadequately trained or instructed in relation to the appropriate time that he would spend on the bandsaw and “the indicators that he was at risk of [sic] continuing to undertake such work”,  particularised as ‘the period up to when his concentration or attention could not remain focused on the task of operating the bandsaw safely or in accordance with the instruction or training, with particular attention to behaviours or mannerisms consistent with not being able to maintain concentration or attention in the operation of the bandsaw” such that he “did not assess his capacity to undertake such duties safely which if assessed he would have removed himself from the operation of the machine”, he gave no evidence of “failing attention or lack of attention to safety needs in the operation of the bandsaw” or “wondering focus”, or “intrusive thoughts”.  Indeed, the only evidence relative to any of this part of the pleaded case was to the contrary.  So much so that with commendable brevity, that part of the case was abandoned in two sentences in the plaintiff’s written submissions as follows:-

“The plaintiff conceded in cross-examination that there were no signs of him losing concentration.  The plaintiff does not pursue bases of negligence related to such matters.”[6]

  1. [14]
    Notwithstanding the pleaded case that he was inadequately trained or instructed as to the priorities regarding safety in the operation of the bandsaw as opposed to production requirements such that he was not trained or instructed “to cease operating the bandsaw if (he), felt that he was unable to continue operating it in a fashion that enable him to keep up with the production rate for the production line in which he was working at the time he sustained his injury”,  he gave no evidence of there being any issues associated with the rate of production on the day or of any inability on his part to keep up.  He had given evidence of being slower when first trained and inducted into the use of the bandsaw; but not by the time he was injured.  Indeed, in evidence-in-chief, having said that he had no control over the speed at which the process line was operating, he was asked whether that had any impact on the way he was doing his work.  He answered:

“No.  After I got used to doing it, you keep up with the way the – the boners are going”.

  1. [15]
    He was asked what might happen if he did not keep up.  He answered (hypothetically given his earlier answers) that the meat piled up to be completed before taking breaks.  But the irrelevance of that to his case was demonstrated by the next question which was “Did that occur on – as far as you recall”, to which he answered “No.”
  2. [16]
    The same evidence disposes of allegations of negligence because of inadequate training as to “approaching the task of cutting slippery portions of meat with a slower production rate to provide for a safer process that would have prevented the injury by eliminating haste from the perceived requirements of undertaking the duties” and of “requiring the plaintiff to accommodate a rate of production that did not provide for his safety in undertaking his duties in cutting slippery portions of meat including the rib racks”.
  3. [17]
    Notwithstanding the pleaded case that he was inadequately trained or instructed “as to the proper or safe method of cutting smaller cuts of meat such as veal rib racks” such that “the proper and safe method” of cutting them ought to have been “to place the hand flat against the end of the chine bones being cut and avoid a pinch group so as to keep the fingers clear of the cutting surface of the bandsaw”, and notwithstanding the pleaded case that this was the method in which he ought to have been trained as “the means by which slippery meat could be secured”, there was not a shred of evidence to the effect that this was an available, appropriate or safe method.  The plaintiff agreed that the method which he adopted and which he had been trained, of using a pinch grip on the ribs of the rack with the fingers curled away from the blade, was to have a firm grip and was a good technique. 
  4. [18]
    The disassociation of the plaintiff’s evidentiary case from so much of his pleaded case is further demonstrated by his written submissions at the conclusion of the trial.  In those submissions the findings of fact which he urged the court to make relevant to the issue of liability were reduced to the following:
  1. “(a)
    the defendant did not assess the risk presented to operators of the bandsaw by small portions of meat or slippery meat;
  2. (b)
    plaintiff was trained in some respects only as to the operation of the bandsaw;
  3. (c)
    the plaintiff was not trained as to the risks presented by smaller portions of meat, slippery meat or the risks created by passing such portions of meat through the bandsaw;
  4. (d)
    the injury was sustained when passing a small portion of meat through the bandsaw where because of its size, the blade caught the meat and pulled the portion into the moving blade;
  5. (e)
    when passing the meat portion through the  blade of the bandsaw, the plaintiff was unable to let it go when the meat became caught in the moving blade;
  6. (f)
    because the plaintiff could not let go of the portion of his meat his finger was drawn into contact with the moving blade of the bandsaw;
  7. (g)
    because the plaintiff’s finger was drawn into the moving blade of the bandsaw he suffered a significant laceration described as a partial amputation;
  8. (h)
    the duty owed by the defendant to the plaintiff incorporates the matter set forth at paragraph 15 hereof;
  9. (i)
    the defendant did not meet the standard of reasonableness related to the elements of the duty it owed because:
  1. (i)
    it did not train the plaintiff to deal with smaller or slippery portions of meat;
  2. (ii)
    it did not provide plant and equipment that was fitted with blade technology when cutting smaller or slippery portions of meat;
  3. (iii)
    it did not prepare the plaintiff by training or instruction to identify a safe system of work when working with meat portions presented as slippery or with smaller than that to which he was accustomed;
  4. (iv)
    it did not supervise the plaintiff in relation to the proximity with which he was passing his fingers to the bandsaw when cutting the portions of meat he says were smaller;
  5. (v)
    it did not provide safe plant and equipment for the task to which he was assigned;
  6. (vi)
    it did not assess the actual risk presented to the plaintiff by the need for him to comply with the relevant standard and the slipperiness of the meat or its size;
  7. (vii)
    it did not provide for a system of work that enabled the plaintiff to safely cut the portions of meat he was directed to cut.”
  1. [19]
    He concluded that:

“All of these matters, it is submitted, could have been attended to without increasing costs in any meaningful way.  There was a training procedure that simply needed to be modified to accommodate the matters outlined above.  There were machines operating in the boning room that had BladeStop technology.  Supervisors were already present in the boning room and needed to attend to the particular issues with respect to the size and nature of the meat that was being cut by the plaintiff.  Alleviating or obviating the risk presented to the plaintiff would, it is respectfully submitted, have required reasonable efforts to be made by the defendant.  It did not do so and the plaintiff is therefore entitled to judgment in his cause of action.”[7]

  1. [20]
    Before returning to these matters which are now the essence of the plaintiff’s case, something first should be said about oral submissions made on the plaintiff’s behalf about concerns which he had on the morning in question and how those submissions contradict (or are contradicted by) the pleaded case.
  2. [21]
    When asked by me what the evidence was as to how much smaller the piece of meat the plaintiff was working on actually was, or whether it was a matter of intuition that if it were smaller by any degree then the fingers would be closer by some degree, counsel for the plaintiff submitted:

“So this is where I point to the evidence of Mr Lowe himself.  What he said about that, your Honour, is that the portions he was cutting were small, such that they created a concern in his mind.  And the concern in his mind was related to the close proximity his fingers were required to be to the moving blade in order to perform a cut on those smaller portions.  In my submission, that elevates it beyond speculation in the sense of relying upon intuitive aspects of that, though accepting if you’re dealing with a smaller portion, your margins are less.  In the instance of Mr Lowe undertaking the cut whereby he suffered injury, he talks about and gives evidence of the greater concern he had because of the smallness of the portions and the close proximity of his fingers.”

  1. [22]
    Counsel continued:

“So the risk – and this is the focal point of the issue of liability.  The risk is one that arises out of either or both the slipperiness of the meat and the portion.  What is conceded by the people who provided the training to Mr Lowe is that there’s nothing in the training documentation that identifies a process whereby Mr Lowe can do something about his perception of that risk, and that is where the deficiency arises insofar as the plaintiff’s case is concerned with respect to the defendant’s training.  That then permeates into things like instruction, and it permeates into things like supervision.” (emphasis added)

  1. [23]
    Then having noted that on the plaintiff’s evidence he had only been working on the bandsaw for two weeks (and even on the defendant’s case, only four weeks), counsel continued:

“Mr Lowe gave evidence that he had never encountered portions of the size or portions that had this slipperiness, noting that he had experienced yearling portions, but they didn’t present in this way. 

So whatever it was that he encountered on that morning is something that elevated the risk beyond what he felt he was prepared for, what he was trained for.  With that elevated risk, he developed greater concerns, but then there is an absolute absence of evidence about what he did in relation to that concern.  And that’s where it is said that the deficiency falls in relation to the system of work, the training and instruction, the supervision that was applied, and the way in which Mr Lowe was prepared to undertake that task.” (emphasis added)

  1. [24]
    Then, later again and after further questioning about what was being contended for as the deficiency in supervision, the evidence being that there were supervisors present but the criticism made that they were more concerned with observing the product as it was being produced rather than method being adopted in its production, this was submitted:

“The way it works, in my submission, your Honour, is that right back at the beginning when Mr Lowe was prepared by the organisation that employs him to operate the bandsaw, it provides in that training instruction a way that Mr Lowe can articulate or – that’s probably putting it too high – somehow indicate to a supervisor that he is facing an issue in performing the work.  Now notwithstanding the fact that Mr Lowe personally, subjectively, developed an elevated sense of concern about what was occurring because of the proximity of his fingers, he had no means and was taught no means, was instructed in no means, to do something about that risk.

Mr Lowe gave evidence of having a number of portions, and I am hoping this answers part of your Honour’s question.  Whilst it was a cut that occurred – and a cut to his finger that occurred on one instance, it is in the context of him experiencing these risks and issues on a number of instances prior to that.  He managed to deal with it, and he managed to deal with it out of his own knowledge bank and experience for a period of time only.

Ultimately, what happened or what transpired was, on his evidence, something that can be attributed to the characteristics and qualities of the meat that he was cutting on the bandsaw in those period – that period leading up to when the incident occurred.  So supervision then must hook into what is part of the training instruction and preparation such that when a worker who is operating a bandsaw says to a supervisor, “look, I can’t cut this in accordance with the proximity requirement.  I need to either go to the blade stop bandsaw or we need to do something else.”  It is sufficient, in my submission, for the plaintiff to identify that inadequacy in the training instruction – or the system between the training instruction and the supervisor.  So part of my answer is that its not one on one supervision.  Part of my submission in answer to your Honour’s question, and it is an entirely apposite question, is related to the interaction between the training instruction and the supervisor and his role.”

  1. [25]
    So as to be certain as to what was identified as the deficiency, I summarised it in this way with counsel’s concurrence:

“So as I understand that submission, now the insufficiency that you identify is that if in the mind of Mr Lowe, whose – because of size or slipperiness or both, perceives an increase in risk, his training or instruction has not provided him with a mechanism of communicating his concern and then it manifests itself in him being injured.  Is that a fair way of - - -

Mr Green: It is, your Honour.  Its not just communication but its also the practicality associated with dealing with that risk.”

  1. [26]
    Those submissions are inconsistent with, and directly contradict, the pleaded case.  As set out above, the plaintiff pleads that he ought to have been trained or instructed “in relation to assessing the risks associated with the performing cuts [sic] on small or slippery portions of meat”.[8]  As also set out above, in his first further and better particulars the plaintiff pleads that the failure to provide that training contributed to the incident “by reason of the fact that the plaintiff:
  1. (i)
    did not assess his capacity to undertake such duties safely, which if assessed he would have removed himself from the operation of the machine;
  2. (ii)
    the plaintiff was not able to assess the risks relating to the operation of the bandsaw in performing the cuts on the portions of meat that were smaller and slippery insofar as the plaintiff was concerned, which risks if assessed by the plaintiff would have enabled him to make a decision about how to deal with such risks;
  3. (iii)
    the plaintiff did not consider the risks presented to him by reference to the weight, size, presentation or slipperiness of the rib racks he was cutting when the incident occurred where if such risks had been assessed the plaintiff would have been able to respond to such risks.
  1. [27]
    To similar effect, in the second further and better particulars the plaintiff pleads an inability to assess his ability to operate the bandsaw safely in performing cuts on the smaller rib racks and, had he been able to properly assess his ability “he would have been able to make decisions about his continued operation of the bandsaw” and “he would have been able to request moving to a BladeStop machine” and “he would have been able to request moving to a blade stop machine which would have enabled the defendant to make decisions about the safety of the plaintiff consistent with his not being exposed to a risk of personal injury while cutting smaller rib racks”.
  2. [28]
    Therefore, the plaintiff’s pleaded case as to lack of instruction or training was that he was unable to assess the risk posed to him by operating the bandsaw when cutting smaller portions.  His pleaded case was that had he been trained such that he had that ability to assess the risk, he would have made decisions as to how to deal with the risks such as: desisting in using the bandsaw; requesting a move to another saw; or even removing himself from the operation of the bandsaw.  That is, his pleaded case was that he could have avoided the risk had he only been able to assess its presence.  His pleaded case was not that he did not know what steps he might take to avoid a risk of which he was aware.
  3. [29]
    To the contrary, however, the final submissions were the antithesis of the pleaded case.  His final submissions were that he was able to assess his ability to perform the work safely on the smaller cuts.  The small portions created a concern in his mind related to the close proximity of his fingers to the moving blade in order to perform the cut on those smaller portions.  The failing is now said to be that the training documentation did not identify a process whereby he could do something about his perception. It is now said that “whatever it was that he encountered on that morning that elevated the risk beyond what he felt he was prepared for, what he was trained for”.  But, as he further submits, having developed those greater concerns “there is an absolute absence of evidence about what he did in relation to that concern”.  More accurately it should be said that the evidence is that there was an absolute absence of any action being taken by him in relation to those concerns.  Certainly, he took none of the steps which he pleads he would have taken had he been able to assess his ability to do the work safely.
  4. [30]
    In my view, the conclusion which is open is that he did not in fact have those concerns on that morning.  Had he done so, he would have taken steps he knew were potentially available.  He would, at least, have raised those concerns.  In evidence-in-chief, having said there was no training about expressing concerns, he said, when asked how he felt about expressing concerns about the task if he had them:

“I would have.  I would have said that I don’t feel comfortable, as in my fingers being so close.”

But you didn’t on this occasion? – I didn’t at all.”

  1. [31]
    Furthermore, the plaintiff gave direct evidence that he did not hold concerns that morning beyond those generally associated with passing his fingers close to the bandsaw when operating it.  In evidence-in-chief he was asked, generally, if he recalled any of the circumstances prior to his suffering the injury to his finger “thinking about that morning” to which he answered “no”.
  2. [32]
    Having earlier given evidence that he “was a doing a smaller beef.  A yearling” that morning which he had described as “a bit slimy, slippery”, which he explained as “fat, like fatty”, he was asked if he noticed any change in the way in which the meat presented for cutting on that morning and he said “no”.
  3. [33]
    He was asked if it was all the same and he said “yep”.
  4. [34]
    He was then asked, directly:

“When you were doing the work on that morning did you form any concerns about the work you were doing with respect to the bandsaw”.

  1. [35]
    Tellingly, he simply responded “no”.
  2. [36]
    There was then this exchange:

“Did you have any concerns at all in the operation of the bandsaw with respect to that piece of machinery? - - - As before – before the injury?

Yes? - - - It was dangerous.

And what created that danger - - - Your fingers are so close to the saw - - - the blade.

What did that mean in terms of how you approached the task? - - - At the time, no.  Yeah, I – I was doing my job.

All right, but when you were doing your job, what were you thinking about the fact that the bandsaw was - - - ? - - -  You’ve got to be wary about – worried about.  Got to make sure they’re clear from the - - -

And what were you doing to make sure your fingers were clear? - - - concentrate.  You’ve got to concentrate.

Anything else? - - - Make sure you cut on the right ankles.”

  1. [37]
    That evidence was clearly about a general concern which he had about the dangerous process of cutting meat with the bandsaw with his fingers passing close to the blade about which he had to be wary and concentrate.  It was not evidence of a heightened, or different, concern about the process on this morning arising from the particular circumstances posed by the qualities of the meat he was working on on that occasion.
  2. [38]
    Later in his evidence-in-chief, having again said that the meat he was working on was smaller and slipperier than the meat of steers, the following exchange occurred:

“Okay.  Did you think about why that was the case when you were cutting it - - - As just the size difference?

Yep?  - - - I was thinking about it, yes. 

And what was your thought? - - - Like concentrate more on – on the smaller size.  Get the right angles.

The right angles to cut - - -? - - - Cut the back ribs off it, the - - -

All right? - - - - - - Carcass.”

  1. [39]
    In my view, that evidence demonstrates that the plaintiff was aware of the different size of the portions and was concentrating on the process he was performing in light of that.  It is not of evidence of heightened or different concerns.  Similarly, still in his evidence-in-chief:

“When you started to cut that portion of meat, did you have any concerns about your own personal health or safety? - - - That’s its dangerous.

And why was that? - - - So close to it.

Did you say anything to anyone about that? - - - No.

Why is that? - - - I just kept doing my job.  As in, just keep - - - .”

  1. [40]
    In this passage of evidence he simply identifies the general danger of passing one’s hands close to the blade when performing the cut.  His use of “so close to it” is not an expression of the dangerousness of the process only arising because of the qualities of that particular portion of meat.
  2. [41]
    That the plaintiff would have raised any concern if he actually had one is also consistent with other evidence, including further direct evidence given by him.
  3. [42]
    At the commencement of the trial, counsel for the defendant, with the plaintiff’s consent, tendered various documents related to employment of the plaintiff with various employers.  Amongst them were records of Programmed Integrated Workforce which related to work which the plaintiff performed with Martin Brower as a pickup and delivery truck driver.[9]  Included within those records was a document titled “Interview Guide” relating to an interview conducted on 6 August 2021.
  4. [43]
    The guide informs the interviewee that “Programmed do not want to place you in a role where any preexisting conditions you may have are aggravated.  It is important to ensure that you have declared all injuries or conditions”.  To that end, the question was asked “have you declared, or do you need to declare, any injuries or illnesses?  (i.e. sports, work, health conditions)”.  The plaintiff disclosed “cut finger on ban [sic] saw 2018 [sic] no ongoing issues.  Fully medically cleared”.  That disclosure, of itself is of some significance as to what the plaintiff alleges in this proceeding as to ongoing effects of the injury which impact upon his income earning ability.  These will be addressed later in these reasons. For immediate purposes, however, its significance lies in its relevance to further “Safety Focus Questions” asked in the interview.
  5. [44]
    Having disclosed his previous work with a bandsaw from which he sustained his disclosed finger injury, the plaintiff answered a series of safety focused questions by reference to his work with that equipment.
  6. [45]
    He was asked:

“Can you give an example of a hazard you have encountered at work?  What did you do to protect yourself?”

  1. [46]
    He answered:

“Bandsaw without guard”.

  1. [47]
    The next question was:

“If you are unsure about the duties required from you, what would you do?”

  1. [48]
    He answered:

“Ask supervisor”.

  1. [49]
    Next he was asked:

“Have you ever stopped working because you thought it was unsafe?  If yes, what was the situation?”.

  1. [50]
    He answered:

“Did question the bandsaw not having a guard and was advised by supervisor it was fine and continue work.”

  1. [51]
    Finally, he was asked:

“Have you ever been involved/orwitnessed a serious significant incident or near miss in the past.”

  1. [52]
    He answered:

“Finger cut in bandsaw at meat works”.

  1. [53]
    The plaintiff was cross-examined about his disclosure of the previous injury and his having no ongoing issues having been fully medically cleared.  He was not cross-examined on the safety focused questions and his answers.  Notwithstanding that he had not been cross-examined on them, he was taken, without objection, to that part of the interview guide in reexamination.  The exchange was as follows:

“Is that true what you’ve recorded there?  That you checked with your supervisor and that you asked a question about the blade guard? --- As a guard for sliding I would have asked about. 

You wrote that, didn’t you? - - - Yep.

Yes.  What I’m asking you is whether its true that you spoke to your supervisor about those things and in relation to the answers that you’ve given to those questions? - - - If I can remember, I would have, yeah.  I - - -

And that was before your injury? - - - Yeah.  Yeah.”

  1. [54]
    From that evidence it can be concluded that the plaintiff not only knew that if he had a concern about being able to safely operate the bandsaw he knew that he could raise it with a supervisor.  Further, it demonstrates that he had acted on that knowledge on an earlier occasion when he did have such concerns. 
  2. [55]
    In my view, this is further evidence contrary to the conclusion that he in fact held the now asserted concerns on the morning in question.  It is further evidence that even if he did hold such concerns, he did not require some further training or instruction to equip him with the ability to know what to do in light of those concerns.
  3. [56]
    Even if I did accept that he had those concerns, I could not conclude on the evidence that any failure to raise them or to take any other steps to address them was a consequence of a failure to properly train or instruct him to do so.  On his pleaded case and on his evidence he needed no such training or instruction (or, at least, no further training or instruction) in that regard.
  4. [57]
    This analysis further demonstrates the plaintiff’s failure to prove the case he brought.
  5. [58]
    Returning then to the remaining allegations of negligence and the factual findings in support of them which the plaintiff seeks as set out in his written submissions.  From these remaining allegations it can be seen that there are certain matters which are not controversial. 
  6. [59]
    First amongst the matters not in contention is that the meat processing in which the plaintiff was engaged, cutting ribs by use of a bandsaw, is inherently dangerous.  Of necessity, it requires the operator to manually hold and control portions of meat, passing them through the blade of the bandsaw.  Of necessity, this brings the fingers of the operator within close proximity of the blade.
  7. [60]
    Next, it is also not in contention that the risk posed by this process cannot be eliminated.  That is because it is not contentious that the blade cannot be fully guarded so as to remove the risk of fingers passing in close proximity of an open blade. A fully guarded blade would not permit the process of cutting the portions of meat to be performed.  To the extent that the originally pleaded case as to the provision of safe plant and equipment raised, and there was some evidence directed toward, the positioning or adjustment of the guard which does guard part of the blade, it became uncontentious that it was correctly positioned on the occasion in question.
  8. [61]
    Next, it is not in contention that the defendant had conducted assessment of the risk posed to operators of the bandsaw arising from the process of using the saw to cut portions of meat generally.  The allegation is that it was the particular risk presented by small portions of meat or slippery meat which was not assessed.
  9. [62]
    Next, and to like effect, it is not in contention that the defendant did provide training to the plaintiff as to the risks presented by passing portions of meat through the bandsaw generally.  The allegation is that he was not trained to deal with smaller or slippery portions.
  10. [63]
    From this it can be seen that central to the plaintiff’s case is proof that the portion of meat he was cutting when he sustained his injury was, because of its size and/or slipperiness, such as to pose a risk to the plaintiff beyond that which had previously been identified and assessed, and for which the training he had been provided to perform his work cutting portions of meat on the bandsaw was inadequate.  Failure to prove either of those matters must result in the plaintiff’s claim failing.  On the evidence, I am not satisfied of either.
  11. [64]
    I have already set out above the plaintiff’s evidence that leads me to conclude that the portions of meat which he was cutting that morning did not have qualities of size or slipperiness which gave rise to concerns beyond those generally held by him because of the inherent dangerousness of the process.   To those matters, in rejecting the plaintiff’s case that the portion concerned was, because of qualities of size and slipperiness, beyond the assessed risk and provided training, I would add the following.
  12. [65]
    Evidence upon which findings might be made as to the extent to which the portions were smaller is entirely absent from the plaintiff’s case.  The plaintiff had provided these particulars:

“Insofar as the plaintiff can estimate the difference between the portions he was trained and accustomed to cut, he considered the portion being cut at the time of the incident to be in the vicinity of 50mm to 100mm smaller by reference to its length and width and about half the weight, with his training focusing on performing cuts of rib racks of between 100mm and 1300mm, and the size of the rib racks that were being cut when the incident occurred at between 50 and 70mm.”

  1. [66]
    Self-evidently, those particulars are unhelpful because the measurements make no sense.  More to the point, though, is that the plaintiff made no attempt to place any meaningful evidence before the court upon which a finding of fact foundational to his case can be made.
  2. [67]
    What can be found on his evidence is that, notwithstanding his only having been engaged in that activity for a matter of weeks, he had cut yearlings before.  He gave that evidence directly in evidence in chief, qualifying it only with “but not as slippery”.
  3. [68]
    What emerged in cross-examination of the plaintiff was entirely unsupportive of his case as to portion size and as to training in respect of such portion size.  The following exchange took place:

“Okay.  Now, Mr Lowe, you gave some evidence this morning that the rib rack you were cutting when you were injured was small.  I’m just curious to know what you mean by small.  Do you mean unusually small, as in - - -? - - - To the –  like a yearling just is small.

Right? - - - Yeah.

And so do you say that you – none of your training had ever dealt with a rib rack of that size? - - - Yeah.

It had, hadn’t it? - - - Yeah.

You dealt with rib racks with some variation of a number of different sizes, hadn’t you?  Some are big, some are small? - - - Some.  Yeah.

Yeah.  And the descriptive term when you’re doing a section of work on rib racks is that you’re doing a run of rib racks.  Do you understand what I mean by that? - - - - The amount of carcases that - - -

That’s right.  Yeah.  So when I say you’re doing a run of rib racks, they all come from about the same size carcass.  Do you understand that? - - - Yep.

And the reason they come from about the same size carcass is the same reason that the specifications exist that that specification exists.  It’s the quality control.  Its so that all of the products are about the same size.  Do you accept that? - - - Yep. 

So accepting that there are some size differences in rib racks, if you were doing a run of one type of specification, at least all of the rib racks you were dealing with would be about the same size, wouldn’t they?  Around the same size.  Yeah.

Yes.  And that would give you some advantage, I would think, wouldn’t it, because you’d get – for that run anyway, you’d get a sense of how big each one is, which helps you judge that distance between you fingers and the blade doesn’t it? - - - Yes.

Their not all different.  You get a feel for the same size rib rack that’s your processing? - - - -.  Yep.  Yep.”

  1. [69]
    On that evidence alone, the plaintiff’s case as to portion size would fail, and with it his claim.  But there was further evidence. 
  2. [70]
    The defendant’s general manager, Mr Giddins, gave evidence based on production records for the day of the incident.  As to variation within the veal rib racks which the plaintiff was processing that morning, and bearing in mind the plaintiff had been performing the work for about an hour before he was injured, Mr Giddins explained that because the product being produced was a fixed price retail pack, quality control required there to be little variation in portion size.  This was a matter with which the plaintiff agreed in cross-examination.  As a consequence, the weight variation was 0.2 kilograms which Mr Giddins said was “negligible, particularly in terms of the difference in size that would result in such a variation”.  From this it can be concluded that the plaintiff was not, in the context of the production run of that day, confronted with a particularly, comparatively, small proportion which he was cutting when injured.
  3. [71]
    Perhaps more importantly Mr Giddins also gave evidence which does not support the conclusion that the veal rib racks upon which the plaintiff was working were of an order of magnitude smaller such as to place them beyond the assessed risk and provided training.
  4. [72]
    Having explained the racks “were specifically produced of a very set carcass weight, which was a veal carcass weight that weighed between 120 and 140 kgs”, he later explained in cross-examination that even for product other than veal the maximum beast weight from which rib racks were taken was 200 kilograms.  Importantly, for a consideration of whether the racks the plaintiff was working on that day were comparatively much smaller than others he would have worked upon, Mr Giddins explained that the weight difference was attributable to the muscle, not the size of the frame of the beast.  He had earlier given evidence that the maximum weight for veal is 150 kilograms.  He provided this evidence:

“Which means most veal have already got a frame, and the weight comes through the muscle.  The frame doesn’t really change.  So the frame of an animal fundamentally doesn’t change until he gets to about 180 to 200 kilos.  And, fundamentally, over 200 kilos is substantially changes to the point where we don’t get racks.  It substantially changes to the point where we don’t get racks off them anymore.  They’re just too big.  But the frame of the animal is fundamentally the same.  It’s the muscle that puts the weight on.”

  1. [73]
    Mr Giddins gave that evidence having just explained why the proposition that portion size would affect the proximity of the operators fingers to the saw blade was not necessarily correct.  This was the exchange:

“But when you’re cutting to that specification, you’re cutting along the ribs or the rib ends rather than between the ribs, aren’t you? - - - That’s correct yep.

Yep.  That will have a difference in the terms of the proximity of your fingers to the blade, having regard to the size of the portion of meat that’s being cut?  - - -  Not necessarily, no.

But it can? - - - It’s very – most of the rib ends are – if we go back to that there, you’ll find that specification is a rib length of 80mm which is a standard.  So – from the eye muscle.  So the rib length is fairly consistent.  The weight of that doesn’t change.  The weight of that’s variable.  I get it.  But the rib lengths generally not.  So the proximity of where you hold the piece of meat is really governed by the rib length.

Well, I accept - - - ? - - - So if the rib length was at 10 mm instead of 80 mm, yeah, most definitely, you’re moving towards closer to it.  But the rib length is a constant length.

I accept that.  But I’m going to suggest to you that if there are different weights, the weight is most likely to come from the portion of meat on the rib structure or the bone structure? - - - - No.  It’ll be the muscle.”

  1. [74]
    From this evidence it may be deduced that as between veal and other rib rack products, the size of the ribs themselves would not be so substantially different so as to require different risk assessment, processing method or training.
  2. [75]
    I reject the plaintiff’s allegations of negligence in so far as they are based on the size of the portions.  That is sufficient of itself to dismiss the claim without resort to consideration of the slipperiness of the portions.  That is because, on the case now articulated by the plaintiff, although making allegations about lack or absence of risk assessment for slippery meat and inadequate training in processing slippery meat, in the findings of fact which the plaintiff seeks as to how the injury was sustained, any slipperiness of the meat portion is not implicated at all.
  3. [76]
    As set out above, the plaintiff urges the court to find as a matter of fact that “the injury was sustained when passing a small portion of meat through the bandsaw where because of its size, the blade caught the meat and pulled the portion into the moving blade”.  The plaintiff does not urge any finding of fact that the meat became caught in the blade because of its slipperiness.  Nor does he urge any finding of fact that the slipperiness of the meat contributed in any way to what followed.  It is, on the plaintiff’s own case, a red herring.
  4. [77]
    Before I leave this foundational finding of fact urged upon the court by the plaintiff, it must be observed that there is absolutely no evidentiary basis for a finding that the blade caught the meat “because of its size”.  The plaintiff gave no evidence of the small size of the meat causing the blade to catch.  To the extent that he attributed any quality to the catching of the blade it seemed to be the slipperiness, but certainly not its size.  Having referred to the meat having slipped he was asked “and was there anything unusual about the way the portion of meat behaved after it slipped?”.  He answered, “Slipped, yeah.  As soon as it slipped, it just grabbed – the bandsaw grabs and takes”.
  5. [78]
    No other evidence was led in the plaintiff’s case supportive of such a finding.
  6. [79]
    To the extent the witnesses called in the defendant’s case were cross-examined about the possibility of meat becoming caught in the blade of the band saw, no suggestion was made that this could be caused by the small size of the meat portion.
  7. [80]
    The extent of the exchange with Mr Wood was:

“You accepted before there are times when meat can get caught in a bandsaw? - - - Yes. 

And if you have a particularly slippery piece of meat that got caught whilst it was being cut, that would be difficult to control, wouldn’t it? - - - Yes.”

  1. [81]
    And a little later:

“There are times when a blade can become blunt? - - - Yes.

Now, that can be one of the causes why meat catches in a blade when a cut has been formed? - - - Yes.

And that can be – can result in a violent reaction of the – sorry.  It can result in significant forces being applied to the portion of meat that’s being cut? - - - Yes.

And when significant forces are applied to the portion of meat, it becomes more difficult for the operator to control the meat? - - - Yes.

And if their fingers are in proximity to the blade that can result in the fingers being cut? - - - Yes.”

  1. [82]
    I hasten to observe that there was no evidence that the blade was blunt.  Indeed the evidence was that it was found not to be when checked after the incident.
  2. [83]
    The extent of the exchange with Mr Giddins was:

“There are times when operating a bandsaw a portion of meat can catch in the bandsaw while its being cut? - - - It does.

You accept that? - - - Yeah.  Its generally from connective tissue.

And when the meat catches on the bandsaw, it can behave erratically? - - - Yes.  Yes.”

  1. [84]
    I have already set out the very limited evidence which the plaintiff gave about the slipperiness of the meat portion.  There was no other evidence of slipperiness in the plaintiff’s case.
  2. [85]
    In addition to agreeing that a slippery piece of meat caught in a bandsaw would be difficult to control, as set out above, when cross-examined Mr Wood said:

“That’s not something which is specifically dealt with in your training from a practical perspective other than to direct them to the way in which they’re holding it? - - - Yes.  Throughout this training process, I am suspecting that that instance would have occurred because he had a fair bit of training, as I recollect, at least four or five days.  The potential is that he’d get a slippery piece of meat and that would get stuck in there.  So – and he was under training.  So it would have been covered under his training program. 

All right.  You don’t specifically recall - - -? - - - I don’t, no.”

  1. [86]
    The cross-examination of Mr Giddins about slipperiness of meat was:

“The other risk which I’m going to suggest to you is that some portions of meat can be slipperier than others - - -? - - - Yeah - - -.

When it’s being handled by a bandsaw operator? - - - That’s – that’s true, yeah.

Yes.  And that slipperiness presents a risk in relation to the way in which a bandsaw operator might approach the task that he’s given, running that portion through the bandsaw? - - - I’d – I’d – I’d probably – for – probably look at it in a different way.  We talk about slipperiness, I’d probably prefer about stickiness.  Okay. So stickiness has a – an ability for the meat to stick, I agree.  Slipperiness actually assists the bandsaw operator because there’s less force to guide the meat through the saw.  So the slipperiness of – in some establishments, particularly lamb establishments, they’ll actually go to the extent where they’ll put some potable water on the table so the meat can slide.  That actually is – is – is assistance to facilitate that process.  Same process, really.

I’ll suggest to you, though, the slipperiness of a particular portion of meat can adversely impact in the ability of the operator to take hold of the meat portion and control it as it passes through the bandsaw? - - - It – it look, it’s possible.  Slipperiness in that – I get it around a knee joint with synovia fluid.  Don’t generally a lot – see a lot of fluid around racks.  The – the – bone is frenched.  So all the meat is relieved from the bone at this point.  So these guys are holding bone.  Bone by itself is actually quite grippy, if – if he can appreciate.  I can understand slipperiness around synovia fluid out of a knee joints and – and – and the like.  Sometimes you’ll have some bruising that could be on – on the back.  I don’t suggest that bruising goes into the rack.  It gets boned out and goes elsewhere.  It goes into a different market.  So that slipperiness, stickiness, it does exist to an extent.  But I – I don’t believe there’s risk factors involved with it.”

  1. [87]
    Notwithstanding those witnesses having been cross-examined on the basis that a slippery piece of meat caught in the blade would be hard to control, the findings of fact now urged on the court by the plaintiff do not include any finding that, having been caught for whatever reason, the plaintiff was unable to control the meat because of its slipperiness.  Indeed, the findings of fact urged on the court by the plaintiff point in the opposite direction.  He seeks findings that he was unable to let it go when it became caught and that because he could not let it go, his finger was dragged into the blade.
  2. [88]
    For those reasons I simply cannot find, on the evidence, that, to the extent that the portion of meat was slippery, the slipperiness contributed to the plaintiff sustaining his injury.  Nor could I find that the slipperiness was to an extent which placed it beyond the assessed risk, adopted process and provided training.
  3. [89]
    In my view, the defendant assessed the risk posed by the necessity for an operator of the bandsaw to pass their fingers within close proximity of the, necessarily, exposed blade. It developed systems of work to mitigate against that risk.  It trained the plaintiff in those systems.  The plaintiff was competent to perform the work safely.  In those respects the defendant did what was reasonably practicable to protect the plaintiff against the risk of injury.
  4. [90]
    The other aspect of the plaintiff’s case on liability is that in light of the particular risks posed by small and/or slippery portions, the cuts being performed on them by the plaintiff should not have been performed on the blade saw which he was operating (the Thompson blade saw) but on a blade saw using BladeStop technology.
  5. [91]
    The plaintiff called Mr Ricky Blom, a mechanical engineer.  Mr Blom has a Master’s degree in mechanical engineering and an advanced Diploma in Occupational Health and Safety.  His report became Exhibit 23.
  6. [92]
    To the extent that Mr Blom purported to express opinions on risk management, for the reasons explained by Daubney J in Hobbs & Anor v Oil Drive[10] I have real reservations about whether there is a relevant area of expertise and, even if so, whether Mr Blom is an expert within it.  Notwithstanding those reservations his report identifies, perhaps in a factual sense, the measures it is said the defendant may have introduced with reasonable practicability.  The first is the use of machines with BladeStop technology and the other is provision and use of jigs, fixtures, push sticks or similar tools to push the cuts clear of the moving blade.
  7. [93]
    Dealing first with BladeStop technology, Mr Blom and the plaintiff identify that in its Occupational Health and Safety Hazard Analysis/Risk Assessment of 28 May 2018[11] a hazard was identified as “band saw blades that move at high speed”.  The “risk, likelihood, consequences, current controls” are identified as:

“It is considered possible that an operator may sustain a serious injury whilst using the bandsaw.  Administration controls in place: stricter training program with testing and reassessment functions.  (SWBR001) safe work instruction developed and part of the training program two band saws with blade stop technology have been introduced into production.  This type of band saw reduces the severity of injuries due to the sudden stop function.”

  1. [94]
    “Further control measures required” identify “look into BladeStop band saws to replace remaining Thompson band saws”.
  2. [95]
    In respect of the issue as to whether the replacement of the other bandsaws with those with BladeStop technology was a measure that was reasonably practical for the defendant to have taken prior to the incident in April the following year,  there was no evidentiary case advanced by the plaintiff to establish that these were reasonably practicable measures that a reasonably prudent employer would have introduced.  The extent of the plaintiff’s case in this regard may be summarised as: the technology was available; the defendant knew it to be so; and the defendant had introduced it to a limited extent.
  3. [96]
    By contrast, Mr Giddins gave detailed evidence relevant to the issue.  He gave evidence of capital expenditure by the company of $1,990,135 on equipment between October 2017 and June 2019.[12]  He explained that this capital investment was in the context of the company pursuing a strategy to open new markets for retail ready prepared meat.  As part of that, the first two BladeStop saws were purchased in May 2018 at a cost of $136,425.  Exhibit 34 identifies those as being for “value added T-bone”.  Two further band saws were purchased in November 2019, subsequent to the incident, at a cost of $136,427.90.[13]
  4. [97]
    Mr Giddins gave evidence to the effect that the successful development of the new markets then permitted further capital expenditure.
  5. [98]
    I accept the defendant’s submission that a delay in replacing the saw on which the plaintiff was injured with one with BladeStop technology was not unreasonable in all the circumstances.
  6. [99]
    Even if I were of the view that it was unreasonable, the plaintiff’s claim would still fail.  That is because of a fundamental flaw in the plaintiff’s case.  There is simply no evidence that if he had been operating a band saw with BladeStop technology on that day, with all other circumstances being exactly as they were, he would not have sustained his injury.
  7. [100]
    For the BladeStop technology to be engaged the plaintiff’s finger would have still had to come into contact with the blade.  As Mr Blom’s report identifies, as a factual matter not as a matter of expert opinion, the Scott Automation website identifies:

“BladeStop band saw is uniquely designed to reduce the risk of serious injury by mechanically stopping the blade when the unit senses the operator has come into contact.”

  1. [101]
    He identifies that a report published by Meat and Livestock Australia supports the manufacturer’s claims, stating:

“Benefits of Blade Stop

Improved operator safety is the only aim for this development, with the reduction (and possibly elimination) a band saw caused  amputations and major cuts.

It is important to note that in stopping the blade, blade contact with the operator is made.  The result is that the operator will receive a slight cut.  This being the case BladeStop is more correctly categorised as an injury minimisation rather than a safety device.”

  1. [102]
    This is reflected in the defendant’s safe work instruction effective 21 May 2018, no doubt implemented upon the company’s purchase that month of the first two saws with BladeStop technology.[14]  It includes:

“Never touch a moving saw blade – the BladeStop will not prevent injury.  It is designed to reduce its severity only.”

  1. [103]
    The best evidence of the extent of the plaintiff’s injuries is in the operation records of the surgeon, Dr Paul McEniery on the day of the incident.  They record under the heading “Findings”:

“Band saw

Perfused

Dorsal entry, bone loss

Dorsal/central slip and proximal P2 fractured off,

Radial lateral band lost

Ulnar lateral band repairable

Partial RDN and 100% dorsal radial sensory nerve lacerations

Radial digital artery – segmental loss”[15]

  1. [104]
    In a report to WorkCover dated 15 April 2019, Dr McEniery describes the injuries as follows:

“On the 1st of April he put his right index finger into a band saw.  The band saw entered dorsally into the base of the middle phalanx.  The central insertion and the articular surface were attached as one fragment and then middle phalanx fragment.  The radial digital nerve had a partial laceration and a large dorsal radial sensory nerve had been lacerated; these were repaired.  The ulnar neuro vascular bundle was intact.  The central slip fragment was held with a dorsal plate.”[16]

  1. [105]
    Understandably, there is no accurate evidence as to how long it took the blade to inflict those injuries.  The plaintiff was asked “Do you know how much time was involved between the meat slipping and - - -"?”.  He said, “Seconds.  It happened so quick.”
  2. [106]
    It is readily inferred that the injuries would have been inflicted very quickly.  The very purpose of the bandsaw was to cut through bone.
  3. [107]
    No attempt was made to place before the court evidence of what time would have elapsed before the blade was stopped if the BladeStop technology had been engaged.  No attempt was made to demonstrate the probability that in those circumstances the injury sustained would be less than that which actually was sustained.
  4. [108]
    The evidence demonstrates that blade caused major cuts and even amputations may still result when the technology is in use.  I cannot conclude that on the balance of probabilities the plaintiff would not have suffered the very same injuries as he unfortunately did.
  5. [109]
    The further measure identified by Mr Blom of using jigs, fixtures and pushsticks should be discarded.  His evidence on those matters was ill conceived and unscientific.  His identified measures were exposed as being relevant to the use of bandsaws in woodwork.  He would not make reasonable concessions in that regard asserting their relevance “to all industries”.  It was apparent that he had not considered the markedly different hygiene issues associated with using such implements in meat processing. To the extent that he later did so, it was in an ill informed and unscientific way.  He simply accessed information available to the general public.
  6. [110]
    The dogmatic way he gave evidence about these matters suggested the demeanour of a partisan advocate for the plaintiff’s cause not a dispassionate, unbiased expert.  Evidence of such partisanship is also found in the file note of a conference conducted with him on 13 July 2022,[17] in which he is recorded as having said:

“That they (the defendant’s representatives) were throwing some smoke and mirrors to counter the suggestion bout [sic] control measures.”

  1. [111]
    There was no evidence of the use of any such devices in meat processing.  Mr Woods had never seen any such use.  He identified several issues which may arise through their use such as catching and contamination, all of which seemed obvious and reasonable to me.  Beyond that, having heard the process described by the plaintiff and having watched its performance in videos, I cannot conceive of how the process which requires careful guidance and control could be performed with such devices.  In the absence of real and persuasive evidence, of which there is none, findings favouring the adoption of such methods must be rejected.
  2. [112]
    For all these reasons, the plaintiff has fundamentally failed to prove his case.  His claim must be dismissed.

Quantum

  1. [113]
    In order to consider the quantum of any damages which may have been awarded to the plaintiff had he been successful in making out a cause of action against the defendant, it is useful to say something more about the nature and extent of his injuries and the course and extent of his recovery from them.
  2. [114]
    I have already set out above the findings of Dr McEniery upon the plaintiff’s first presentation following the incident and in the surgery which Dr McEniery performed.  I have also set out the description of the injuries as contained in Dr McEniery’s report of 15 April 2019.  In that report, under the heading “Planned Future Treatment, Rehabilitation and Return to Work Plans”, Dr McEniery commented, “splinting for six weeks/until the fracture has united.  Suitable duties could be undertaken.”  Dr McEniery identified the suitable duties that the plaintiff could perform, as at that time, as “Ritchie will need to avoid right-handed tasks that could bump his right finger or that require right handed lifting”.
  3. [115]
    As to when the plaintiff would have capacity to upgrade to full hours and/or duties and, if unable to upgrade, the barriers impeding that, Dr McEniery said:

“This is a complex injury with bone loss/cartilage loss.  It is uncertain when Ritchie will return to normal duties and some degree of decreased PIP joint range of motion plus/minus pain is to be expected in the longer term.”

  1. [116]
    He expressed his opinion as to prognosis:

“Some degree of decreased right index finger range of motion is expected in the longer term and if the PIPJ is painful, PIPJ arthrodesis might be required later on.”

  1. [117]
    He said that it was not at that stage stable and stationary that it would not be stable for many months.
  2. [118]
    Having reviewed the plaintiff on 20 May 2019, Dr McEniery, that day, sought approval to conduct further surgery.  The request for approval was granted by WorkCover, that day, and the surgery was undertaken the following day, 21 May 2019.  Of that series of events, Dr McEniery reported to Dr LeMass of the Orthopaedic Department at the Ipswich Hospital in a report dated 29 March 2019 as follows:

“20 May: I reviewed Ritchie on the 20th May and his index finger has dropped into radial deviation and a swan neck deformity.  I sent him for a CT scan and this shows progressive loss of the joint space.  We had a long discussion and I have recommended removal of the plate and PIP joint arthrodesis given the appearance on CT, ie loss of joint space and the operative findings which was loss of cartilage on one of the proximal phalanx condyles.  Given that his joint is hyper extended, very stiff and painful I do not believe there is a likelihood of regaining pain free range of motion.

22 May: Ritchie was admitted to St Andrews Hospital on 21 May for arthrodesis of his right index PIP joint.  I had reviewed Ritchie on the 20th May and the CT showed joint loss and he was very stiff extending into a swan neck and ulna deviation deformity.  Given the joint appearances on CT and the known operative findings of some cartilage loss in the ulnar condyle of the proximal phalanx, I recommended arthrodesis and Ritchie had a think about that and then came back indicating he wanted to proceed.

The plate was removed.  Some swabs were taken as the distal edge of the incision had not completely healed.  The ulna lateral band repair remains solid.  The joint was repaired and fused using a HPS plate at 40 degrees and this was confirmed on II and I was quite happy with the alignment position allowing his thumb and index fingertips to meet in neutral position.  The plan is for Ritchie to wear a hand-based splint to protect the arthrodesis for the next four weeks at least.  I will review him in two weeks and with an x-ray at the four-week mark.  Once the arthrodesis units I would expect he could return to the meatworks but that is probably at least six to eight weeks away and playing rugby this season is unlikely.”

  1. [119]
    Dr McEniery reported to WorkCover in the same terms on 18 June 2019.  In that report he also said, “Ritchie has the capacity to undertake appropriate left-handed suitable duties.  Following arthrodesis union, he should be able to cease wearing the splint and start using his right hand”.  He opined that it would be at least six weeks at the earliest before the injury was stable.
  2. [120]
    Dr McEniery said that the finger would have been quite uncomfortable prior to the arthrodesis so it would have been reasonable for him to have that week off work.
  3. [121]
    Dr McEniery again reviewed the plaintiff on Monday, 8 July 2019.  On that occasion he reported:

“I reviewed Ritchie today following right index finger PIP joint arthrodesis.  I am quite happy with the position, ie angle of the arthrodesis and it is uniting on x-ray.  Ritchie does have some pain on stressing the PIP joint so he will need another month or so to allow further consolidation across the arthrodesis.  During that time he should continue protecting his finger in a splint but can leave it off for light tasks and I will review him in four weeks with a final x-ray if all is going well.”

  1. [122]
    Several records which are in evidence suggest that by this time the plaintiff was becoming frustrated with his predicament, particularly as it impacted upon his ability to play rugby league.  As set out above, when seen on 22 May 2019, Dr McEniery reported that “playing rugby this season is unlikely”.  I readily infer that this would have been a matter he discussed with the plaintiff on that occasion.  While no mention is made by Dr McEniery of any discussion of football at the consultation of Monday, 8 July 2019, it is apparent from other records that it occurred.
  2. [123]
    In evidence is the defendant’s rehabilitation records for the plaintiff.  They include a document titled “Event Log”.[18]  There are two entries for 10 July 2019, two days following the plaintiff’s consultation with Dr McEniery on the Monday.  The first recalls a telephone conversation between the complainant’s mother and the note’s author at 10.20 am.  It reads:

“Ritchie’s mother called and advised that Ritchie can see the theorist [sic] today as the Lowood Medical Centre has had a spot open up at 12:00.  I advised her that I will get a hold of Ritchie and get him to go as the appointment are very important for his mental health.  She agreed.  Ritchie signed out at 11:00 am and left the site.”

  1. [124]
    The next record of relevance relates to a second call made to the defendant’s rehabilitation representative on 10 July also recorded in the event log.  The call was received at 12:02 pm.  It records:

“Ritchie’s mother called again today and asked about getting a second opinion after Ritchie seen the surgeon on Monday had he flat out told Ritchie to give up on his football.  I explained to Donna that it is Ritchie’s choice to get a second opinion but I’m not too sure if that is something that WorkCover would pay for.  Donna went on to say that the doctor was nothing but a wanker and what type of person would say something like that when he’s already down in the dumps about this whole thing.  I didn’t say much back to her but just repeated what I had said about Ritchie getting a second opinion.”

  1. [125]
    Each of those records suggest that the impact of the injury upon the plaintiff’s ability to play rugby league was very much an issue and particularly as that may have been impacting upon his mental wellbeing.
  2. [126]
    Also in evidence is the communications record report of WorkCover Queensland.[19]  It contains a record made at 10.30 am on 10 July 2019 of a conversation with the plaintiff’s mother at 10.25 am; five minutes after she had spoken with the employer’s representative.  It records:

“PC from the worker’s mother at 10.25 am.

Call from the above wanting to know if she can get her son seen by another specialist.

The doctor he has been seeing advised the worker that he most likely would not play football again and she went on to say he gets paid to play football and wants to go see a sports specialist to make sure this is the case he can’t return to football.

CA advised that as his claim is for work related injury and wants to see sports specialist we would not be able to pay for this.

Donna said that was not fair on worker as he has had this injury and now not able to return to football and he has lost wages costs.

Explained that I would not approve this and get John to call her back to discuss further if he wants to pay for this that would be his decision.”

  1. [127]
    The therapist who the plaintiff was able to see on 10 July 2019 as referred to in his mother’s first call to his employer that day was Dr Katheryn Noon, a clinical psychologist.  Dr Noon’s records are in evidence.[20]  Dr Noon’s report to Dr O'Neill dated 21 July 2019 in respect of that initial consultation states:

“Ritchie reported worry about his future and his weight, low motivation, work place stress, and feelings of anger.  He was having difficulty adjusting to his new circumstances with the serious injury to his finger.  He reported his love of football and was an A-Grade player but can no longer participate because of the danger of injury to his finger.  Ritchie reported being angry with work.  The band saw that severed his finger had no safety guards.  Although he attended work on light duties, he did not want to return to work because his finger was permanently set in a position that was incompatible with the operation of the band saw.”

  1. [128]
    Dr Noon’s handwritten notes include:

“One month since surgery.  See surgeon 5 August.  Plates 2016 in right side of face, cracked cheek.  Rugby player – only played eight games.  North Tigers, Ipswich.  Wants a second opinion on whether can wear a brace.  Doesn’t want to return to work.  Won’t be able to use the band saw.”

  1. [129]
    Dr Noon administered a number of psychological tests.  The DASS 21 recorded a depression score of six (normal range zero to nine); an anxiety score of four (normal range zero to seven); and a stress score of two (normal range zero to fourteen).”
  2. [130]
    Notwithstanding WorkCover Queensland indicating in the phone call with the plaintiff’s mother on 10 July 2019 that it would not pay for a referral for an opinion of a specialist in sports medicine, the plaintiff did consult Dr Roy Saunders on 19 July 2019.  Dr Saunders’ progress notes do not record whether the referral was by any other practitioner or body.[21]  While little was said about Dr Saunders in evidence, the plaintiff simply confirming in cross-examination that he went to see Dr Saunders and that the doctor gave him some advice about the implications of returning to rugby league, and nothing was said of Dr Saunders’s qualifications, judicial notice can, I think, be taken of the fact that Dr Saunders is a medical practitioner engaged in sports medicine. Most particularly he has been associated with rugby league in Queensland, at the highest levels, for a lengthy period.  These are matters of public record and media reporting.
  3. [131]
    Dr Saunders’s notes record:

“His question today was easy, is it suitable or could he play football with it?  Having reviewed the x-ray and discussed it with him, my advice has been not.  I believe that there is significant risk of reinjury, or refracturing either the side of the plate, or through the broken damaged joint where despite the rod going through there, that the finger would break before the rod would.

The other issue is that he still has fortunately maintained sensation, and further injury may compromise that as well, so effectively my advice is that whilst he has some movement there, it would be a significant risk, and the consequences may be that he would have to have amputation of that finger, or part of that finger, which is his right‑hand dominant index finger, and that would result in significant reduction of his function.

My advice to him is not to play.”

  1. [132]
    It is unclear from Dr Saunders’s notes whether his opinion and advice related only to the time at which he saw the plaintiff (bearing in mind Dr McEniery having expressed an opinion that it was unlikely he would play in the 2019 season, although that view may have changed when he saw him on 8 July 2019) or whether it was an opinion which Dr Saunders held in respect of all future involvement in the sport.
  2. [133]
    Dr McEniery last saw the plaintiff on 2 September 2019.  His report from that occasion reads:

“I reviewed Ritchie today.  He reports ongoing pain and swelling of his index finger when exposed to a cold environment.  He reports being sent home from work last week with some swelling and showed me a picture taken from the radial side and has some mild swelling around the proximal portion of his finger.  Ritchie has a stable arthrodesis and a thumb and index finger pinch strength of 3.75 kilograms.  I sent him for a CT scan today to assess the PIP joint arthrodesis and there is sold union between the proximal middle phalanx on all of the CT slices.  There is no loosening of the plate.

I have reassured Ritchie that he has a solid arthrodesis and he can load it knowing that the arthrodesis has united.  I am not in a position to provide any permanent restrictions but it seems that the cold environment is a source of significant symptoms for Ritchie.  I have not made any further plans to review Ritchie and I have indicated that this condition is now stable and stationary.”

  1. [134]
    Dr McEniery certified the plaintiff as being fit to return to normal duties the following day, 3 September 2019.
  2. [135]
    The periods for which Dr McEniery certified the plaintiff as having no capacity for any type of work were: 1 April 2019 to 21 April 2019; 21 May 2019 to 9 June 2019.  To those periods may be added the week prior to him seeing the plaintiff on 20 May 2019 referred to in his report of 18 June 2019 as having been reasonable for the plaintiff to have off.
  3. [136]
    The plaintiff also returned to Dr Noon for a second consultation on 2 September 2019.  Dr Noon’s notes from that consultation record:

“Feeling good.  Much better than last time.  DASS 21 – no positive feeling (2) and overreact (1) rest.  No bandage or splint on finger.  Index scarred and in immobile position – adopted pin holding position.

Finger aches when used.  Light duties at work.  Finger swelled badly.  Back at work after second surgery only two to three weeks off.  16 September – light duties. Still going to physio.  Won’t go back to football until 2021.  Might try attending training.  Can’t ride motorbike until finger and hand have more strength.  Fishing and rivers with family.  Waterfall – Stony Creek outside Kilcoy.  Sleeping better 10.00 pm – 5.30 am.  Appetite – never a problem, put on a few kilos.  Told three years for feeling to come back in face (football injury).  Wants to get truck licence.  Have front end loader licence and did a course.  Heavy operations course.  Recommendation OT.  Questioned 2 on DASS 21 changed to zero.  Three others have cut fingers on band saw.  See again in month or six weeks.”

  1. [137]
    Dr Noon had administered the DASS 21 test again on that occasion.  The plaintiff recorded a depression score of two and anxiety and stress scores of zero.
  2. [138]
    Prior to seeing Dr McEniery for the last time, the plaintiff was referred to Dr Gavin Ballenden, a consultant physician and specialist in occupational medicine.  Dr Ballenden’s clinical examination and findings record:

“The scar from the injury started on the dorsal and radial side of the right index finger, proximal to the PIPJ and extended dorsally and distally across the base of the middle phalanx.

A surgical scar extended from that point in a curvilinear manner on the dorsum of the finger and then proximally on the ulnar side of the finger, through which surgeries were performed.

Photographs have been provided.  There was some distortion cosmetically as a result of the scar.

There was no loss of finger length.

Range of motion at the metacarpophalangeal joint was 20 plus minus 90, which is normal;

At the PIP joint 45 degrees fused; and at the DIP joint 40 per cent of  flexion but only 30 per cent of extension – range 30-40 per cent.

There was sensory loss on the dorsum of the finger, but with respect to the digital nerve mild sensory loss on the radial side of the finger only at the fingertip.  The outcome from the radial nerve repair is very good.  Monofilament testing was detected but sensation was altered.  Two point discrimination was detectable at 5mm, both on the radial and on the ulnar side of the fingertip.”

  1. [139]
    Dr Ballenden considered the injury stable and stationary and at maximum medical improvement.  He described the plaintiff as “virtually asymptomatic” and that it was not expected that his presentation would change substantially in the following year.  He observed that although the finger was restricted in range, it was in a “position of function”.  Dr Ballenden assessed an 8% whole person impairment referable to the finger injury and 2% referable to scarring with a total assessed WPI of 10%.
  2. [140]
    On 18 September 2019 the plaintiff consulted Dr David Melsom, hand and upper limb surgeon.  Having referred to the surgical history, Dr Melsom states:

“The arthrodesis technically is fine with no issues.  The finger has fused on the CT scan and there are no untoward features that I can see.  He is doing modified light duties work and not doing band saw work, which he was previously doing cutting the meat.”

  1. [141]
    That history, as apparently provided by the plaintiff is, on its face, at odds with what the plaintiff was in fact doing workwise at the time.  He had not, in fact, worked since being medically cleared by Dr McEniery to do so.

The event log for 3 September 2019 record:

“Called John Phillips at WorkCover to advise that Ritchie has a clearance to return but failed to return or notified the office.  John wasn’t in and I spoke with Katie.  She said she will pass on the information and chase it up.

Then, for 4 September 2019:

“Ritchie presented to the office with medical clearance.  Ritchie was not happy about having a clearance and stated over and over again ‘my finger is not right’.  Damien advised Ritchie that the company would be making decisions based on the Dr’s recommendations, and if Ritchie was not happy with those recommendations, then he should get a second opinion.  Ritchie said he was not happy with the Dr’s clearance.  It was decided that Ritchie would not be working today.  Ritchie said that he was going to get a second opinion.  Damien requested that Ritchie keeps the company informed.”

Then, for 9 September 2019:

“Ritchie presented to the office saying that he couldn’t work because his finger was sore.  Damien asked Ritchie if he had received a second opinion yet.  Ritchie said no, he has an appointment booked for tomorrow.  Damien advised Ritchie to keep the company updated.  If Ritchie received any WorkCover paperwork, he was to send it through.”

  1. [142]
    In that context, the plaintiff telling Dr Melsom on 18 September 2019 that he is doing modified light duties might be understood as a statement of what duties he was performing when last doing any work, rather than a misrepresentation that he was still attending work and performing duties.  Though Dr Melsom does not record, at least not in terms, that he was told by the plaintiff that Dr McEniery had cleared his return to work.
  2. [143]
    What he does record is:

“Ritchie has had quite significant hand therapy at EKCO Hand Therapy since the injury and has reached a plateau in terms of his WorkCover claim and also in terms of his symptoms.  He has seen Dr McEniery who does not want to see him again and is not really particularly interested in dealing with the sequalae.

Ritchie complains of pain around the finger in the cold room where he has to work with pain over the dorsum of the proximal interphalangeal joint in particular and swelling of the finger occurs on a regular basis.

Ritchie is not taking any analgesia.  He is not getting significant pain otherwise.  He has not gone back to his hobbies of sport and touch football on account of being advised that this would be a bad thing to do in respect of the metal work in the finger.”

  1. [144]
    Dr Melsom records his examination findings as:

“On examination Ritchie’s finger was in a flexed position of approximately 30 degrees and clinically united.  The soft tissue envelope was atrophic, but intact.  He had pain and prominence of the metal work under the proximal interphalangeal joint at the dorsal aspect of the joint, particularly on the ulnar aspect.  There was no pain distally over the middle phalanx and he had reasonably passive movement and some active movement of the distal interphalangeal joint of approximately 30 degrees.  Flexor digitorum profundus was intact and flexor digitorum superficialis could not be assessed.  He could flex with the proximal phalanx level with the middle finger and his metacarpophalangeal joint is not affected.  He had reasonable sensation in the pulp of the finger.”

  1. [145]
    Dr Melsom recorded his treatment plan as:

“The only option really for Ritchie would be removal of the metal work as I think there is some prominence where he is experiencing most of the pain, although it is not guaranteed this will remove his swelling or his pain and the chances are probably more 50/50.  I have explained this to him today.  I do not think there is any other treatment options and the fusion has otherwise been done well.

I have left Ritchie to have a think about things.  He is no longer under WorkCover, but clearly this could be reopened as a WorkCover claim to remove the metal work if necessary.  I have suggested that he try changing his job as in the future this is clearly not likely to be ideal for him, and he is certainly not going to the band saw work in the future.”

  1. [146]
    Dr Melsom was not called to give evidence.
  2. [147]
    On 3 December 2019 the plaintiff consulted Dr Malcom Wallace, orthopaedic surgeon, for medicolegal purposes.  Dr Wallace records the plaintiff’s presenting history to include:

“Initially, Mr Lowe states that he was off work for some two weeks before returning to work on light duties.  He had difficulty with his light duties and then after the arthrodesis was performed he again returned to light duties on a graduated return to work, but he was unable to continue under [sic] normal duties.  He had particular difficulty as he had been directed to work in the cold room.”

  1. [148]
    Dr Wallace records, having been told by the plaintiff, “Mr Lowe has not been able to return to work in the meatworks and continues to suffer ongoing symptoms associated with the injury”.  He records as “current symptoms”:

“Mr Lowe has ongoing scarring.  He has restriction of motion at the PIP joint of the index finger as a result of the arthrodesis.  He continues to have decreased sensation distal to the PIP joint on the radial side of the index finger.”

  1. [149]
    Under the heading “disability” Dr Wallace records:

“Mr Lowe states that he continues to suffer ongoing difficulties with cold intolerance and decreased sensation in his finger.  He has lost dexterity and grip strength.  He states that he has difficulty picking up coins, managing buttons and zippers.  He has difficulty opening jars and bottles.  He is unable to ride a motorbike and can no longer enjoy fishing.  He has not found gainful employment since the injury.  Around the house he has difficulty with using tools.  He has given up playing rugby league.  He is unable to manage other activities of daily living and personal care.”

  1. [150]
    Dr Wallace reported that on examination there were no signs of chronic regional pain syndrome.  There was well healed scarring about the PIP joint.  There was arthrodesis which was clinically sound at 35 degrees of flexion.  The range of motion of the DIP joint was between 30 degrees of flexion and minus 10 degrees of extension with normal metacarpophalangeal joint motion.
  2. [151]
    Dr Wallace considered the surgical arthrodesis of the PIP joint was in satisfactory position.  There was some residual scarring and decreased sensation in the index finger on the radial side and restricted motion in the PIP joint.  He considered that the plaintiff had maximum medical improvement and did not require further surgical treatment.
  3. [152]
    Like Dr Ballenden, he assessed a 10% whole person impairment calculated on the same basis.
  4. [153]
    As to the plaintiff’s then present and future employment Dr Wallace opined:

“Mr Lowe has not been able to return to employment since the incident.  His future employment, taking into consideration his training, education and experience will be adversely affected by the injury to his index finger and he will have difficulty with any manual work or work involving the use of tools, and he is unlikely to return to the type of work he was doing at the meatworks.  He is suitable for supervisory or sedentary work and may require retraining.”

  1. [154]
    He said the plaintiff’s capacity to enjoy his normal social activities and sport had been adversely affected.
  2. [155]
    On 25 May 2021 Dr Wallace attended a teleconference with the defendant’s solicitor and counsel.  Notes of that conference are in evidence.[22]
  3. [156]
    In part, those notes record:

“In my opinion, the plaintiff’s capacities as demonstrated in the surveillance demonstrate that he has a sound PIP arthrodesis which is strong, stable and pain free.  The strapping the plaintiff can be seen wearing while playing rugby is unlikely to provide any relief in terms of pain and I expect the purpose of the strapping is merely to prevent reinjury.  The plaintiff’s grip strength is not markedly affected by the injury.

I still believe the plaintiff will have some incapacity for work owing to loss of sensation and dexterity.  In particular using power tools, working in the cold or working as a knife hand may be problematic for the plaintiff.  Otherwise, I believe he has full capacity to work fulltime as a truck driver including performing deliveries, as a farm labourer and to perform heavy lifting and labouring.  Any work which requires a significant degree of dexterity is contraindicated.”

  1. [157]
    In cross-examination, Dr Wallace said that in his opinion “any work which requires a significant degree of dexterity is contraindicated”, would be better expressed as reduced capacity for such work.
  2. [158]
    Those revisions of Dr Wallace’s opinions were based on his assumption of certain factual matters and his observations of the surveillance footage of the Plaintiff working and playing football.  Those assumed facts have now been proven in the trial.  In my view, having been informed of those facts led to a significant review of Dr Wallace’s opinion as to the plaintiff’s capacity for work as a consequence of his injuries.  In my view, Dr Wallace’s revisions and concessions were candid and appropriate as one would expect of a dispassionate expert witness. They also confirm the Plaintiff’s ability to perform to perform fulltime work in other areas such as truck driving or labouring.
  3. [159]
    In giving evidence, Dr Wallace explained that “in fact the index finger does not contribute much to grip strength at all”.  As to finger pinch strength as recorded by Dr McEniery, Dr Wallace considered that Dr McEniery was not reporting anything other than normal pinch strength at that time.
  4. [160]
    In cross-examination, Dr Wallace said  the plaintiff’s capacity to work in cold environments would still be impaired if he does suffer aching in the finger in cold weather.
  5. [161]
    In the conference notes, Dr Wallace refers to the opinions of Dr Philip Allen, orthopaedic surgeon, expressed in a report of 25 February 2020.[23]  Dr Allen examined the plaintiff on that date.
  6. [162]
    As part of the presenting history, Dr Allen records the plaintiff told him that he was no longer employed at the meatworks and that he had been actively seeking employment for the past two months with the prospect recently of having secured employment with a plumbing supply business for which he had previously worked  as a driver.
  7. [163]
    The report records the plaintiff having stated his then current symptoms to be stiffness in his index finger as well as some occasional pain and throbbing which occurs “now and then” and that “it gets in the way”.
  8. [164]
    Dr Allen reported normal sensation of the radial border of the finger but diminished sensation affecting the ulnar side of the finger from the base to the tip.  He reported his summary and assessment as:

“Mr Lowe has sustained a partial amputation to his right index finger for which he is being treated surgically.

He has recovered from his injury and is left with a stiff right index finger with some compromise in function.  He has diminished sensation over the ulnar border of the index finger.

His treatment is now complete, and is fit to resume employment.

Mr Lowe is currently looking for employment and hopes to secure a job as a driver for a plumbing supplier.

No further treatment is envisaged for his injury.”

  1. [165]
    He assessed an 8% whole person impairment, being 7% contributable to the finger impairment and 1%  for scarring.
  2. [166]
    He expected there to be further improvement in symptoms.  In his report he said that over time the plaintiff was expected to increase his functional capacity as he used his hand more and more.  In his oral evidence he referred to adaptation rather than improved function per se.  In this regard, his evidence accorded closely with that of Dr Wallace.
  3. [167]
    As to the Plaintiff’s capacity to work in fields for which he is qualified, Dr Allen opined:

“I believe that Mr Lowe has capacity to return to unskilled work at this time and there are a wide range of employment opportunities which he can consider.

At this stage I would put no restrictions on him and leave him to assess his functional capacity with respect to various employments which he wishes to pursue.

There is no medical reason for applying specific restrictions at this point.”

  1. [168]
    That evidence provides the expert medical context against which the quantification of the plaintiff’s damages, particularly as to loss of earning capacity must be assessed.

General damages

  1. [169]
    The awarding and calculation of general damages are governed by s 306O and s 306P of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA) which requires ascribing an Injury Scale Value in accordance with Schedule 9 of the Workers Compensation and Rehabilitation Regulation 2014 (Qld) (WCRR).
  2. [170]
    The plaintiff submits that his injury falls with Item 115.2 of the Schedule and that it should be ascribed an ISV of 20.
  3. [171]
    The plaintiff contends for this ISV on the following basis.
  4. [172]
    It is contended that the descriptors for Item 115.2 (serous injury to one or more of the fingers or the thumb) of “a bursting wound or an injury causing severe damage with residual scarring and disfunction” accurately describe the nature of the injury to the plaintiff.  The submission does not descend to identify which of those two descriptors is the accurate description, although it would appear to be the second.  He submits “the injury interferes with the remaining function of the hand and there has been division of tendons with unsuccessful repair being undertaken.  The plaintiff is left with a fixed flexion deformity.  The item provides for a range of between 11 and 15 in terms of ISV’s.  Having regard to the multiple nature of the injury sustained, an uplift is advanced.  This is to take account of the adverse impact of the injury upon the plaintiff.  This is to be assessed having regard to the number of surgeries, the extent of rehabilitation and the symptoms the plaintiff continues to complain of.  An ISV of 20 is claimed.
  5. [173]
    The plaintiff then, by reference to matters set out in s 9 of Schedule 8 of the WRCR, points to a number of specific factors which he contends the court would have regard to being: the plaintiff’s age at the time of injury and life expectancy being a period of some 58 years during which “he must endure restrictions, pain and suffering and loss of amenities of life”; the absence of preexisting pathology or symptomatology; and the effects set out in his quantum statement.
  6. [174]
    By contrast, the defendant contends for an ISV of 10 assessed within Item 115.3 (moderate injury to one or more of the fingers or thumb).  The range of ISVs within Item 115.3 is 6 to 10.  The concession which the defendant makes to an assessment at the top of the range is based upon the additional comment about appropriate level set out in Item 115.3 that an ISV of or near the top of the range will appropriate if there is a DPI for the injury of 8% and the injury is to the dominant hand.
  7. [175]
    In my view, an 8% DPI is appropriate given Dr Allen’s assessment and Dr Wallace’s concession to that assessment when better informed of the facts.  I am mindful that Dr Ballenden also assessed a total WPI of 10% based upon 8% being attributable to the finger and 2% to scarring.  However, that assessment in August 2019 was well before the factual matters which caused Dr Wallace to review his assessment emerged.  Particularly, the plaintiff’s seemingly very successful return to rugby league was not anticipated at that earlier time.
  8. [176]
    In my view, the plaintiff’s contention for an ISV of 20 ought be rejected for a number of reasons.  First, is that the basis upon which it is now contended for is entirely different to the basis upon which it was pleaded.  In his Further Amended Statement of Claim the plaintiff contended “For an ISV of 20 by reference to Item 115.1 WCRR”.
  9. [177]
    Item 115.1 is for “extreme injury to one or more of the fingers or thumb”.  It has an ISV range of 16 to 25.  The relevant descriptor for this item is “total loss of function of the finger with the joints ankylosed in non-functional positions”.  An additional comment is that an ISV at or near the bottom of the range will be appropriate if there is a DPI for the injury of 14%.
  10. [178]
    Given those matters and the state of the evidence, it is entirely understandable that this pleaded basis for an ISV of 20 would be silently abandoned in the plaintiff’s final submissions.  Contending for a mid-range ISV for Item 115.1 when there is far from total loss of function of the finger, where the joints are not ankylosed in non-functional positions, and where even on the most generous assessment the total DPI was 10% not the 14% which would see the ISV at near or the bottom of the range, is unsustainable. 
  11. [179]
    The route by which the plaintiff now seeks to arrive at an ISV of 20 is by starting with a range of a 11 to 15 for a serious injury rather than an extreme injury, but seeking an uplift “having regard to the multiple nature of the injury sustained”.  The mixed use of the plural “multiple” and the singular “injury” demonstrates the obstacle which the plaintiff faces on his now chosen route to an ISV of 20.  The only basis upon which there could be said to be multiple injuries would be to break down the singular injury to the finger into separate injuries to bone, skin, nerves and tendons.  This should be rejected.  These are not multiple injuries in the sense referred to in ss 3, 4 and 9 of Schedule 8 of the WCRR. To the extent that they are relevant, the particular matters pointed to by the plaintiff for consideration pursuant to s 9 of Schedule 8 are not matters which would see a top range ISV of 15 uplifted by 33.3 per cent even if he could satisfy the criteria for an extreme injury, which he cannot.
  12. [180]
    Beyond those observations as to their relevance to ascribing an ISV in this case, I would add that it is difficult to see the particular losses of amenities of life which the plaintiff will “suffer from this incident for many years to come”.  It is quite clear from the evidence that the predominant amenity of life that it was feared the plaintiff would suffer the loss of was his ability to play football.  That would have been significant, but only for the duration of what would have been his footballing career, not the rest of his life.  However, the evidence clearly establishes that the loss of that amenity was short lived.  Despite the advice of no less an expert than Dr Saunders, the plaintiff made a successful return to rugby league in the Covid affected 2020 season.  He played A-Grade.  He played eight games scoring four tries.  That year he played for Northern Suburbs, Ipswich Tigers.  He was paid to play.  He played for them again in the 2021 season playing 10 games and scoring two tries.  In 2022 he moved north to the Cairns competition,  he and his brother having both been approached by Southern Suburbs Rugby League Club.  He again played in the A Grade competition.  He scored four tries.
  13. [181]
    To the extent that he and his father gave evidence that his injury had a significant effect upon his football, even if they genuinely held those subjective views, they are not supported by the objective evidence.  The most objective of the evidence is the video surveillance footage.  It shows the plaintiff very much involved in the A Grade games. 
  14. [182]
    He plays in the halves.  He is a playmaker. Of necessity, when attacking he is a ball receiver and distributor, so he catches and passes.  His evidence was that he played the whole 80 minutes of each of the games he played.  He has never missed a match due to the finger injury.  He did miss games because of a foot injury.  As well as playing the matches, he trains. 
  15. [183]
    Media articles attest to his ability.  The Cairns Post online had him as one of the best three Southern Suburbs players in its mid-season review on 24 June 2022.  Its report of 29 March 2022 referred to the signing of the plaintiff and his brother as “quality recruits” noting they had combined the previous weekend for three tries in a “nail biting win”.  On April 22 the Cairns Post referred to the acquisition of the plaintiff and his brother by Southern Suburbs as having provided the squad with plenty of depth, although noting that the plaintiff would miss the next match.  On 22 April 2022 the Post reported that “Suburbs is expected to welcome back Ritchie Lowe from injury, who will add a calming influence to the halves”.  On 20 June 2022 the plaintiff’s coach is quoted in the Cairns Post saying “Ritchie Lowe scored a great individual try”.
  16. [184]
    The Courier Mail online on 11 October 2020 has a photograph of the plaintiff diving to score a try, his arms and chest about a metre above the ground. The storing of a try in this fashion on 18 June 2022 is also seen in the video footage.  In an article published on 14 September 2020 covering the last round of the Ipswich competition, the Courier Mail included the plaintiff in its team of the week.  In previewing the upcoming Ipswich competition grand final the courier Mail published on 15 October 2020 that “the North’s backline is underrated but gets the job done week in week out with great combinations and this starts in the halves with Lewis Smith and Ritchie Lowe combining well and giving some great ball to their outside backs”.
  17. [185]
    When it comes to his rugby league ability, the plaintiff should not sell himself short; as he tended to do in his evidence.
  18. [186]
    On all the evidence it would seem that the initial opinion of his treating surgeon, Dr McEniery, proved correct.  The plaintiff only missed the 2019 season.
  19. [187]
    The plaintiff points to other matters said to provide context for this uplift of an ISV from 15 to 20.  These are “the numbers of surgeries, the extent of the rehabilitation and the symptoms the plaintiff continues to complain of”.  None of these matters justify the suggested uplift.  The plaintiff underwent two surgical procedures in a relatively short span of time; just under two months.  The surgeries, particularly the second, were successful.  He underwent hand therapy.  That may have been intensive; but it was for only about five months and resulted in gaining a full medical clearance.  His symptoms are not chronic.  Even when he saw Dr Melsom for second opinion in mid-September 2019, they were episodic rather than chronic, and not such as required him to take analgesics.
  20. [188]
    To the extent that they were relevant, the particular matters pointed to by the plaintiff would do no more than support ascribing an ISV at the top of the range for Item 115.3.  I ascribe an ISV of 10 and assess general damages at $16,050.

Past economic loss

  1. [189]
    Central to the quantification of the plaintiff’s past economic loss is the defendant’s pleading that the plaintiff unreasonably failed to mitigate his loss.  If the defendant has proven that allegation, then the plaintiff’s economic loss is restricted to the difference between what he received by way of statutory benefits from WorkCover and his usual weekly earnings between the date of the injury and 3 September 2019 when he was certified as fit to return to his ordinary duties.
  2. [190]
    In my view, the defendant has succeeded in proving that allegation.
  3. [191]
    The starting point, in my view, is that the plaintiff was certified by Dr McEniery as fully medically cleared to return to his former work.  Dr McEniery had been seeing him since the time of injury, had performed the two surgical procedures and had certified the alternative duties.  It can be accepted that at the time Dr McEniery gave him full medical clearance there had been recent pain and swelling of the finger in the context of working in the cold room.  This is reflected in the record in the Events Log for 28 August.  That record also records that there was discussion of the plaintiff going into a different role when he returned the following day which, it is said, was agreed by all as being best for all involved.  The records make clear, however, that this was effectively the last day the plaintiff presented for work.
  4. [192]
    It may also be accepted that in certifying him as fit to return to work Dr McEniery in his final letter of 2 September 2019, while saying he was not in a position to provide any permanent restrictions, did say that it seemed that the cold environment was the source of significant symptoms.  However, because of what transpired, there was never the opportunity for this to be considered in the context of the plaintiff’s ongoing employment.  The plaintiff did not attend work on 3 September, the day after he saw Dr McEniery and was given a medical clearance, nor did he call his employer.  It is apparent from the Events Log that the defendant had been made aware that the plaintiff was cleared to work as of that day.
  5. [193]
    On 4 September he did attend work with the medical clearance.  The Events Log records that he was not happy about the clearance repeatedly saying, “my finger is not right”.  He was informed that decisions would be made based on the doctor’s recommendations and if he was not happy with those recommendations he should get a second opinion.  It records that it was agreed that he would not work that day and the plaintiff said he would get a second opinion.  He was requested to keep the company informed.  He is then recorded as not having presented for work, or called, on 5 and 6 September being the remaining two days of that working week.
  6. [194]
    He did attend on Monday, 9 September but said he could not work as his finger was too sore.  He informed that he had a specialist appointment to obtain a second opinion the following day.  Again, he was asked to keep the company updated.  The Events Log for 9 September 2019 also records a conversation between the WorkCover case officer and Mr Porter in which WorkCover advised that the claim had expired and the plaintiff was now subject to the defendant’s internal procedures.  The case officer also informed that the plaintiff had let his permanent impairment offer expire and that solicitors had been involved in his claim.
  7. [195]
    The plaintiff is recorded as not having presented on each of 11, 12, 13, 16, 17, 18 and 19 September.  The Events Log records that Mr Porter emailed the plaintiff on 30 September to ascertain his intentions in regard to his employment.  It records that calls to his phone were going unanswered.
  8. [196]
    Although he attained a second opinion from Dr Melsom on 18 September 2019, it appears that this was never provided to the defendant for its consideration.  Like Dr McEniery’s letter of 2 September 2019, it contraindicated work in a cold environment.
  9. [197]
    The plaintiff submits that “Dr Melsom indicated that he thought that the plaintiff should change his job in the future”.[24]
  10. [198]
    The full sentence in Dr Melsom’s report is “I have suggested that he try changing his job as in the future this is clearly not likely to be ideal for him, and he is certainly not going to be going to the band saw work in the future”.[25]
  11. [199]
    In the context of the defendant asking to be informed of any second opinion, and in light of evidence as to the potential for redeployment to which I will come shortly, this full sentence is informative.  Dr Melsom was suggesting a change of job.  That does not necessarily involve a change of employer.
  12. [200]
    The defendant points to clause 14 of the industrial agreement which governed the plaintiff’s employment[26] as a source of power for it to redeploy the plaintiff.  Clause 14 confers a power to redeploy by direction upon provision of seven days’ notice if based upon reasonable operational requirements.  It is conditional upon the employee suffering no reduction in wages.  In my view, if the plaintiff could not continue safely to work in his former role on the band saw or in a cold environment more generally, the need for the company to redeploy him (rather than terminate his employment, potentially unlawfully) to work he could safely perform would fall within the employer’s reasonable operational requirements.
  13. [201]
    Moreover, as subclause 14.3 recognises, the plaintiff himself may have requested redeployment, albeit not with a guarantee of wage parity.  Again, no discussions about alternative roles took place because of the plaintiff’s disengagement.
  14. [202]
    Mr Porter readily conceded that at the time he was dealing with the plaintiff’s case he was unaware of any policy of redeploying employees.  However, It is clear that any issue of the plaintiff having returned to work under a full medical clearance, but being unable to practically perform work, for example because of a cold environment, would have been brought to Mr Giddin’s attention.  Mr Giddin’s gave evidence of a process whereby redeployment options would have been followed had the plaintiff engaged with the defendant.  There was evidence from both Mr Giddins and Mr Porter that such a process had been pursued with other employees.  Mr Giddins gave evidence of difficulties the company experienced with attraction and retention of employees which led to a preference for engaging employees on a permanent rather than casual basis.  This was seemingly directed to illustrating why it would be beneficial to the defendant to seek to redeploy a permanent employee such as the plaintiff.  Mr Giddins said that there were roles in warm environments available into which the plaintiff may have been redeployed and the defendant may have retrained him.  A forklift driver was an example. There were also labouring positions. In this regard, it should be borne in mind that although the plaintiff was working as a “sawyer” at the time he was injured, he was engaged as a “food processor-grade 3” under the industrial agreement. There are other roles which fall within that classification.
  15. [203]
    In the end, by letter dated 1 October 2019, the plaintiff was informed that his employment had been terminated for gross misconduct he having abandoned his employment.  In my view given the complete disengagement from his employer by the plaintiff, no conclusion other than that he had abandoned his employment was open.[27] 
  16. [204]
    In response to the defendant’s pleaded allegations that he abandoned his employment and failed to mitigate his loss, the plaintiff pleads that:

‘“He has been troubled by psychological issues arising out of his ongoing symptoms and the injury sustained in the incident;[28] ‘his inability to redeploy with the defendant do not properly constitute a refusal or failure to communicate with the defendant or its servants or agents, and at all times he has been engaged and responsive as his position after the injuries were sustained, permitted’;[29] and he ‘has at all material times been actively engaged in seeking alternative employment to the best of his ability’.”[30]

None of those pleaded matters are made out on the evidence.

  1. [205]
    In his written submissions, the plaintiff submits that “it should be noted that he discussed his employment with the defendant with various people providing psychological care to him.  They note the anger he felt toward the defendant, as well as the practical difficulties he says he encountered because of the fixed flexion deformity in performing the various roles he had been provided”.[31]  The evidentiary foundation for the submissions, at footnote 126, is “see for example Exhibit 1, doc 35, page 354.  This arose out of a number of sessions with the treatment provider”.
  2. [206]
    It is necessary to break the submission up to demonstrate that the identified evidence does not make it out. 
  3. [207]
    First, the only evidence cited is from one person providing psychological care to him, not several.  There is no evidence that there were others.
  4. [208]
    Secondly, the particular document identified is Dr Noon’s report of 21 July 2019.  Contrary to the submission, that did not arise out of a number of sessions with Dr Noon.  It arose out of the first treatment session.
  5. [209]
    Thirdly, the expressions of anger recorded after that first session are not repeated in the notes of the second (and last) session on 2 September 2019.  To the contrary, what is recorded is “Feeling good.  Much better than last time”.  Further, in the DAS S21 test completed on that occasion, the plaintiff had scored the statement “I couldn’t seem to experience any positive feeling at all” with a “2” indicating that this statement applied to him to “a considerable degree or a good part of the time”.  When Dr Noon questioned him about this she records, and it is evident on the face of the document, that he changed this to a “0” indicating that the statement “did not apply to him at all”.
  6. [210]
    Dr Noon’s notes refer to the plaintiff having scored the statement “I tended to overact to situations” with a “1” indicating that this applied to him “to some degree, or some of the time.  However, Dr Noon has misread the document.  The plaintiff in fact marked that statement with a “0”.  It was the previous statement “I found it difficult to work up the initiative to do things” that he scored at a “1”.
  7. [211]
    Fourthly, another test administered by Dr Noon on 2 September 2019 was the Impact Event Scale – Revised.  It instructs those completing the test:

“On the following page is a list of difficulties people sometimes have after stressful life events.  Please read each of them, and then indicate how distressing difficulty has been for you during the PAST SEVEN DAYS with respect to the above event.”

  1. [212]
    The scoring system is 1 to 5.  1 equals “not at all”.  2 equals “a little bit”.  3 equals “moderately”.  4 equals “quite a bit”.  5 equals “extremely”.  The only statement to which the plaintiff provided a score of 2, that is a little bit, was “any reminder brought back feelings of it”.  All other statements were scored 1, that is, not at all.  Most relevantly, and contrary to the submission, a response of “not at all” was provided to the statement “I felt irritable and angry”.
  2. [213]
    Fifthly, a further test administered was the WHODAS 2.0.  It is a disability measurement tool.  It requires the person to provide answers thinking back over the past 30 days.  The degrees of difficulty which can be nominated are “none, mild, moderate, severe, and extreme or cannot do”.
  3. [214]
    Most relevantly, the plaintiff was asked at questions D5.5 to D5.8, respectively, because of his health conditions (which the instructions state includes injury) how much difficulty he had in the past 30 days: in his day to day work; doing most important work tasks well; getting all of the work done that he needed to do; and getting his work done as quickly as needed.  To each of those the plaintiff answered “none”.
  4. [215]
    The evidence of Dr Noon, properly analysed, does not make good the submission which cites it in support.  It contradicts it. 
  5. [216]
    Before leaving Dr Noon’s evidence, one further observation should be made.  The plaintiff makes the further submission that “the finger injury impacted upon the decisions he was making and the manner in which he was pursuing such decisions”.  This submission cites his evidence that “it was like it was messing with me a bit after the injury” by which he meant “my thinking and stuff”.  In relation to this submission, there is an absence of evidence that this related to the time he disengaged with the defendant rather than some earlier time.  To the extent it is suggested that it was at the time of disengagement, it is inconsistent with Dr Noon’s notes and testing results as set above.  Furthermore, the plaintiff sought no further assistance from Dr Noon notwithstanding that there were planned to be six visits under the referral.[32]  And the last session on 2 September 2019 was only the second session with Dr Noon’s notes being headed “Ritchie Lowe 2/6 WC 2/9/19).  Dr Noon’s notes for that occasion concluded “see again in month or six weeks”, however, there is no evidence that there was any further contact with Dr Noon despite its availability. 
  6. [217]
    Next, the pleading that “the plaintiff’s inability to redeploy with the defendant do [sic] not properly constitute a failure or refusal to communicate with the defendant, and at all times he is engaged as responsive as his position after the injuries were sustained, permitted” has also not been made out for several reasons.
  7. [218]
    First, it is based on a false premise.  It may be correct to say that the plaintiff’s inability to redeploy does not constitute a failure or refusal to communicate; but it is not alleged that it does.  To the contrary, the plaintiff’s case is that any potential for redeployment was frustrated by the plaintiff’s refusal or failure to communicate.
  8. [219]
    Secondly, no inability of the plaintiff to redeploy has been proven.  Whether the plaintiff had the ability to redeploy is unknown because there was never an attempt to redeploy.  And, as the defendant has established, there was never an attempt to redeploy because the plaintiff disengaged, did not attend for work and was unresponsive to the defendant’s attempts to communicate with him.
  9. [220]
    Thirdly, there is nothing in the evidence to establish that the extremely limited engagement and communication the plaintiff had with the defendant was the extent of the responsiveness permitted by his position after the injuries.
  10. [221]
    Next, the allegation the plaintiff has been actively engaged in seeking alternative employment is not made out on the evidence.  In his submissions, the plaintiff has referred to his oral evidence of having looked for work with alternative employers while he was in the course of his return to work with the defendant.  He said that this was based on his view that he did not think he would get anywhere near the boning room.  He contends that this was reasonable having regard to his own experiences and that it was consistent with what is noted in various medical reports about his likelihood of returning to that type of work.  He referred to the evidence he gave to the effect that he felt he was of no use to his employer.  The only other evidence he points to of his attempts to find work are the Seek advertisements which are in evidence.  I shall return to those.  All that need  be noted about them for present purposes is that they substantially post date the cessation of his employment with the defendant; by about six months.
  11. [222]
    With one qualification, the submissions made for the plaintiff based on his own subjective views may be accepted at face value.  The qualification is that to the extent that he submits that his subjective views about his potential to return to the boning room were consistent with various medical opinions, there is no evidence from which to conclude that any such opinions were known to him at the times he says he was seeking alternative employment.  Dr McEniery had not expressed that view.  To the contrary, he was working with the plaintiff towards the return to his duties.  Dr Saunders had not expressed that view.  He was consulted about the plaintiff’s potential to return to rugby league, not his employment duties.  The only other opinion expressed before he disengaged with the defendant, having received Dr McEniery’s full medical clearance, was that of Dr Ballenden on 8 August 2019.  His opinion did not support the plaintiff’s subjective views.  To the contrary, the only comment made by Dr Ballenden about the potential of a return to work was “it is expected that he will be able to return to work”.
  12. [223]
    So, with that qualification, one may accept the plaintiff’s subjective reasons for seeking alternative employment while still on a return-to-work program with the defendant.  But where does that take him?  It is not that he sought, found and took alternative employment at a reduced rate of income.  His search was unsuccessful.  As he frankly conceded in evidence-in-chief, he got no interviews.  There is no evidence to support the conclusion that at the time of disengaging with the defendant upon being medically cleared to return to work he had good prospects of obtaining alternative employment.  The evidence is to the contrary.  Properly understood, the evidence to which the plaintiff points about having sought alternative employment before medical clearance does not make reasonable his disengagement from the defendant upon gaining medical clearance.  In terms of mitigating his loss, if anything, it makes it more unreasonable.
  13. [224]
    Returning then to the other evidence to which the plaintiff points to demonstrate his attempts to obtain employment; the Seek advertisements.  Those advertisements show that the plaintiff applied for a total of three jobs.  The date he applied for one is unclear, but it was in March 2020.  The other two were, respectively, applied for on 8 and 9 March 2020.  What those documents, therefore, demonstrate is that in a period of perhaps a few days in March 2020, six months after disengaging with the defendant, he applied for three jobs.  With the greatest respect to the plaintiff, it is hardly evidence of him actively engaging in seeking alternative employment to the best of his ability at all material times.  Respectfully, it demonstrates the opposite.
  14. [225]
    One cannot prophesise that had the plaintiff engaged with the employer he would have been redeployed.  Had any process along those lines ultimately proven unsuccessful such that the plaintiff eventually ceased employment with the defendant, then the reasonableness of that course may have been entirely different.  However, determining whether he has unreasonably failed to mitigate his loss is not to be approached on the basis that any process would have been unsuccessful and that he would not have been redeployed.
  15. [226]
    It was the plaintiff’s own actions in disengaging with his employment when disappointed to have been certified as medically cleared to return to work which brought to an end the permanent employment available to him.  In short, his own actions caused his loss.  Maintaining his employment as best he could, would have mitigated any potential loss.  He failed to do that.
  16. [227]
    I do not accept any such failure was reasonable.  In written submissions it is contended that against the suggestion that he “did not remain long enough with the defendant to give effect to any policy or process that might have eventuated in a job driving forklifts, it was clear to the plaintiff having regard to his actual experience, that there was nothing there for him”.[33]
  17. [228]
    The evidentiary foundation for that submission is said, in footnote 130, to be the evidence in the transcript of day two of the trial between lines one and 38.  That part of the transcript does record the cross-examination of the plaintiff about the possibility of him performing a forklift driver or labourer’s role.  Indeed, it concludes with the plaintiff’s agreement to this proposition:

“And do you accept that, really, you could have saved yourself a good degree of loss because you would have been in employment from September 2019 rather than unemployed for periods of time, as you’ve suggested to my friend, Mr Green.  Do you accept that? - - - Yeah.”

  1. [229]
    However, it does not support that part of the submission that it was clear to the plaintiff from his actual experience that there was nothing there for him.  The only evidence of the plaintiff’s actual experience of alternate roles were those he had performed when on suitable duties.  In cross-examining Mr Giddins about work performed by the plaintiff in the box room not being attractive vocationally, Mr Green for the plaintiff accepted that this work was only under the suitable duties program and it was not about being ongoing work.
  2. [230]
    To the extent that the plaintiff gave evidence about there being nothing for him based on his actual experience, it was that he was trying to leave even before he got full clearance because he did not think he was going to “get back up to in anywhere in the boner room” and that he “wouldn’t be able to get up and advance, or anything like that”.
  3. [231]
    As already noted, Dr Melsom’s suggestion of a change of job does not equate to a suggestion to change employer.
  4. [232]
    In the plaintiff’s written submissions it is submitted that Dr McEniery’s report of 18 June 2019 “is informative”.[34]  He refers to Dr McEniery having noted: that there would be a further review four weeks hence; that the flexion deformity would be permanent; that the injury would take at least six weeks to be stable and stationary; and that it would have been reasonable for the plaintiff to have had time off work in the week prior to the arthrodesis; and that his suitable duties would be lefthanded.
  5. [233]
      The plaintiff then refers to “an example of a suitable duties program signed by Dr McEniery is to be compared with one that is not”.  The evidentiary foundation for this submission is said to be the two certificates that appear in Exhibit 1, document 36, pages 435 and 436.  Having examined those certificates, I am not at all sure that they support the plaintiff’s submissions.  One is clearly the suitable duties plan signed by the plaintiff and his rehabilitation and return to work coordinator on 6 August 2019.  It was also signed by his supervisor, Daryl Woods.  Curiously, Mr Woods has dated his signature 9 September 2019.  However, as I will explain, that is clearly a mistake lest it be thought that Mr Woods was signing off on a plan a month later and after the plaintiff had received a full clearance on 2 September 2019.
  6. [234]
    It is clear that this was a plan as presented to Dr McEniery for his consideration.  Dr McEniery approved the plan, signing it on 13 August 2019.  It can be seen that Mr Wood’s signature with the 9 September date was on the document provided to Dr McEniery; quite obviously before 13 August.
  7. [235]
    The plaintiff refers to Dr McEniery having passed a line through some of the duties, this being the asserted distinction between the plan he approved and that which he did not.  However, although it is correct in a literal sense to say that Dr McEniery has passed a line through the box listing the proposed duties, it is difficult to construe that line as him disapproving any of those duties.  It is an oblique line, upward from the left to the right.  The only full word it passes through is “hose” in the duty of “hose cattle”.
  8. [236]
    Another example of an earlier suitable duties plan approved by Dr McEniery is found at Exhibit 1, document 40.  It is the plan he approved on 17 April 2019.  In the boxes marked “Duties” and “Restrictions” he has clearly marked his approval with a tick in the box.  Given his approval being indicated in that way on the earlier plan, I would readily conclude that the passage of the line to which the plaintiff points was not a striking through in disapproval of the “hose cattle” duty, but a tick of approval for the collection of duties.  Even if I were wrong in that, the suggested disapproval of hosing is very limited indeed.
  9. [237]
    The plaintiff further submits that the suitable duties program had as a goal a return to full duties and that this goal “is to be seen in contrast to the various observations of a number of doctors to the effect that in their view, the plaintiff was not going to return to such work as he was doing at the time of the incident”, and that “the goal should be seen in the context of such observations or opinions as unlikely though consistent with the objects of the business of the defendant”.  He further submits that “such observations are also the proper context to understand the notes recorded by the staff members of the defendant in the ‘alternative duties staff – sign in/out sheets’”.
  10. [238]
    The difficulty with those submissions, in my respectful view, is that they do not grapple with Dr McEniery having signed off o the approved plans with that long term goal of a return to full duties and his certifying attainment of that goal on 2 September 2019 with an express inability to provide any permanent restrictions, although noting cold as a source of significant symptoms.
  11. [239]
    These findings are sufficient to conclude that the plaintiff’s claim for past economic loss should be limited to the difference between his usual weekly earnings and the benefits paid to him by WorkCover up until the cessation of his employment with the defendant in October 2019.  I would assess that in the amount of $6,148.23 in accordance with the defendant’s submissions.  However, for completeness, I will make some observations about his evidence concerning work that he did obtain as it is relevant not only to his claim for past economic loss, but also his claim for future economic loss.
  12. [240]
    The plaintiff gave evidence of avoiding using power tools following the second surgery because of the shaking.  He also conceded using them with his left, non-dominant hand.  This was a form of adaptation as referred to both Dr Allen and Dr Wallace, as was adapting to performing finer motor skill activity using the thumb and middle finger rather than the index finger.
  13. [241]
    The plaintiff spoke of difficulties in carrying objects when working for TP Elite because of his finger getting in the way.  Such difficulties were not evident in the video surveillance footage.
  14. [242]
    The plaintiff gave evidence of difficulty in gripping packages when working for TP Elite.  That evidence is at odds with the medical evidence as to the fingers from which grip strength is derived generally, and the subjective measurement of the plaintiff’s grip strength.
  15. [243]
    In respect of his work with Martin Brower Pty Ltd through Programmed Skilled Workforce he said that he had difficulty with his injured finger working in a cold room for about half an hour at the start of the day.  Notwithstanding that, he would perform driving duties for eight to twelve hours per day.  The plaintiff left that employment, which was quite remunerative particularly in comparison with the work for the defendant, after about six months to take up the offer to play rugby league with Southern Suburbs in the Cairns competition to which I have already referred.
  16. [244]
    Notwithstanding his evidence about experiencing difficulty with his finger in cold environments, in applying for work with Martin Brower through Programmed Skilled Workforce he provided a CV in which he listed amongst his skills an ability to perform a range of manual work tasks and an ability to work in fast paced and refrigerated environments.
  17. [245]
    As earlier noted, he declared his finger injury and that there were no ongoing issues having been fully medically cleared.
  18. [246]
    As part of that employment process he was sent for a medical examination which included a musculoskeletal and fitness assessment conducted on 12 August 2021 by Sonic Health Plus.  His upper limb strength was assessed as good, including his grip strength for which he rated four out of a possible five.  The comments included in the assessment report were “nil abnormalities, nil risk of injury”.
  19. [247]
    Also as part of that employment process, on 5 August 2021 the plaintiff completed a Safe Start Report Questionnaire.  In that, he again disclosed his finger injury, which he described as “cut through right index finger on a band saw”.  He was asked the following questions:

“How difficult is it to open bottles or jars?;

How difficult is it to make a tight fist?;

How difficult is it for you to use buttons, pins, hooks or zippers?;

How difficult is it for you to do heavy housework such as washing floors, vacuuming or mowing lawns?;

How difficult is it for you to lift an object from the floor e.g. a bag of groceries or a cardboard box?.” 

To each of those questions he answered ‘not at all’.

  1. [248]
    To each of those questions he answered ‘not at all’.
  2. [249]
    In answer to whether he struggled with any physical aspects with the duties in previous or current roles he said, “no”.
  3. [250]
    When asked how often he felt soreness in any part of his limbs or back after doing his usual work he answered ,“none of the time”.
  4. [251]
    He said that there were no reasonable adjustments that needed to be considered in order for him to safely perform work with any existing injury.
  5. [252]
    In my view, all of that is consistent with him being able to perform that work for eight to twelve hours per day.
  6. [253]
    Of course, it is also entirely consistent with his demonstrated proficiency as an A-grade rugby league player over, by then, two seasons subsequent to his injury. 

Interest on past economic loss

  1. [254]
    As submitted by the respondent, any calculation of interest must be performed after deduction of the sums paid by WorkCover Queensland ($5,346.29) and Centrelink ($21,372).  Given those amounts exceed the damages award that would have been made, no interest is awardable.

Loss of past superannuation entitlements

  1. [255]
    Based on the award I would have made, at the rate of 9.5%,lost superannuation entitlements amount to $584.04.

Fox v Wood

  1. [256]
    An award of $646 under this head of damages is uncontentious.

Future loss of earnings

  1. [257]
    In my view, the plaintiff’s claim for future loss of earnings is unsupported by any evidentiary foundation and which, in order to award it, would require the court to ignore the evidence.  This is perhaps no better reflected in his counsel’s frank concession at the commencement of his oral submissions that “quantum is much more problematic for Mr Lowe”.
  2. [258]
    He seeks an award of $460,000 “approached on a global basis (which) would be designed to accommodate the loss of income earning capacity related to the effects of his injury and ongoing impairment”.
  3. [259]
    The underpinning mathematics is a notional $550 net weekly loss for the remainder of his working life to age 67.  It is submitted that “it is not unrealistic to approach the assessment of future loss of earning capacity” on that basis.  In my respectful view it is entirely unrealistic.  The $550 is derived from the difference between the average net weekly income for level 5 step 1 and level 7 step 1.[35]
  4. [260]
    The written submissions go on immediately to say:

“It is submitted that the evidence before the court suggests that she would have completed her studies by the time of trial and it is further submitted that she should be regarded as person likely to have obtained such a role commensurate with those qualifications by now”. 

Given that the plaintiff is male and not female, that there is no evidence of him studying for any qualification nor of any role commensurate with any qualification, it would appear that this part of the of the submission is an artefact from submissions prepared for some other case part of which has been copied and pasted into the submissions for this case.

  1. [261]
    The submissions continue, and concede, “there may no doubt be times where the plaintiff has secure employment though there are doubts about the longevity of such employment and he will face uncertainty and disadvantage because of his injury”.
  2. [262]
    On the evidence, the only doubt about the longevity of secure employment which the plaintiff may have from time to time, other than uncertainty faced by all workers, arises his demonstrated pattern of voluntarily leaving such employment.  As with his failure to mitigate his past loss, his propensity to give up well paid work for reasons unrelated to his injury should not factor in an assessment of future economic loss caused by the injury.
  3. [263]
    The greatest example of this propensity, and the best illustration of the unsustainability of the plaintiff’s asserted basis for calculation of loss, is that by August 2021, less than two years post injury, the plaintiff had obtained secure work as a driver for Martin Brower through Programmed Integrated Workforce.  His average weekly earnings at that time were $1,580; more than double his weekly wage with the defendant.  Despite matters of which he complained about cold conditions in the first half hour of the day, he demonstrated a clear capacity to perform the work for up to 12 hours per day.  In this work, he was at no economic disadvantage; he was 100 per cent ahead of where he had been.
  4. [264]
    In the course of oral submissions the following exchange took place:

“His Honour: But isn’t it evidence of the fact that whatever residual disability or – he has got as a consequence of his finger – a man of his education, training and experience – which – as you describe it as rudimentary – is nonetheless, on the open job market, able to obtain employment which was better paid than the employment in which he injured himself.

Mr Green: Yes, your Honour.  I accept that.  I think that’s clear on the evidence.  The only caveat I would add to that is the assistance his father gave to that process whereby he was employed, and whilst Mr Lowe expresses a general view that the employment will  be available to him if he were to chose to come back to Brisbane, there is no guarantee of that.”

  1. [265]
    Following this, Mr Green for the plaintiff conceded that “what is put forward is the high-water mark”.  No other basis for calculation was put forward.  Later, when challenged as to how a claim for future economic loss of $460,000 could be justified on the facts in this case, Mr Green, again, made a frank concession saying “only because Mr Lowe himself says that he has difficulty with his finger.  It is evidence that he has made decisions in the past of that, unrelated to the observations of his employer”.  That frank concession implicitly recognises that the plaintiff’s subjective view as the only basis for such an award is inconsistent with the objective evidence as to his abilities and capacities (much of which the plaintiff was himself the source) and the medical evidence.
  2. [266]
    Notwithstanding having secured this comparatively highly remunerative work, he gave that job away to play rugby league in Cairns.  The work he obtained there doing bread deliveries was much less well remunerated and match payments did not make up the difference.
  3. [267]
    It is submitted for the plaintiff that “arguably, this is not something the plaintiff was likely to have done if his career had not been interrupted by the effect of the injury”.[36]  That submission cannot be accepted.  It is clear on the evidence that playing rugby league is the plaintiff’s passion.  If he was prepared to give up a job paying more than $1500 per week to pursue that passion, I readily conclude he would have given up a job with the defendant which paid half as much to do so.
  4. [268]
    The plaintiff’s claim for past economic loss conceded that he was not entitled to damages when working in that significantly higher paid employment, or for any loss sustained when he left that employment to play rugby league in Cairns.  The extrapolation of this for the purposes of assessing future economic loss is not that it is some interruption to the period for which he can claim loss of income, it is to recognise that if and when he chooses to pursue work outside of maintaining a football career, there is work within his abilities, which has been demonstrably available to him and which, is much better paid than the work he performed for the defendant.
  5. [269]
    The defendant, fairly and correctly, concedes that in the course of his working life the plaintiff will be at some disadvantage in the open workforce because of his injury for which he should be modestly compensated.  The defendant submits that this should not exceed $30,000.
  6. [270]
    When assessing a global sum to recognise some disadvantage, as I am required to do in this case, is not a scientific exercise.  The cases referred to in the defendant’s submissions provide some useful yardsticks, but no two cases are on all fours.  The defendant recognises that some of the cases are now dated and the awards made in them must be viewed in that context.
  7. [271]
    I would have been a little more generous than the defendant’s submissions.  I would have awarded $45,000.  This does not purport to be a precise figure reached on an identifiable mathematical basis; However, it represents a little more than $20 per week projected over the plaintiff’s working life.

Loss of future superannuation entitlements

  1. [272]
    Calculated at the rate of 11.3% the award under this head would have been $5,098.50.

Past special damages

  1. [273]
    Statutory refunds totalling $35,226.30 are uncontroversial.
  2. [274]
    The plaintiff claims $2,500 for analgesics in the order of two tablets per day for 202 weeks.  In my view, the evidence of the doctors as to what they had been told of his need for analgesics does not support this.  It was much more occasional.
  3. [275]
    I would allow $500.
  4. [276]
    I would allow the plaintiff’s claim for $1,000 to obtain his truck licence.  That was a step integral to obtaining the well paid employment which, essentially, put to an end any claim for ongoing weekly economic loss (viewed separately from the abandonment of employment).
  5. [277]
    I would allow the Medicare refund of $471.10.

Future expenses

  1. [278]
    There is little evidence supporting this claim, although one would infer that there will be occasions when he will need to see his doctor in relation to the finger.
  2. [279]
    Future pharmaceuticals I would also infer will be required from time to time.
  3. [280]
    Doing the best I can, I would allow $2,500 on a global basis.

Disposition

  1. [281]
    The claim is dismissed.

Footnotes

[1] This ability was demonstrated in video footage of the plaintiff playing rugby league, and his concessions in evidence that, as a halfback, he was continually involved in the game; catching, passing, tackling etc.

[2] Court document no. 56 at para 3.

[3]Ibid, para 5.

[4] Court document no. 40.

[5] Court document no. 57.

[6] Plaintiff’s written submissions, para 35.

[7] Plaintiff’s written submissions, paras 44 and 45.

[8] Further Amended Statement of Claim, para 7(a)(vii).

[9] Exhibit 3.

[10] Hobbs & Anor v Oil Drive [2008] QSC 45.

[11] Exhibit 1, document 14.

[12] Exhibit 34.

[13] Exhibit 36.

[14] Exhibit 1, doc 9.

[15] Exhibit 1, doc 36, p 384.

[16] Exhibit 1, doc 35, p 397.

[17] Exhibit 24.

[18] Exhibit 1, doc 43.

[19] Exhibit 10.

[20] Exhibit 1, doc 35.

[21] Exhibit 1.  Doc 30.

[22] Exhibit 22.

[23] Exhibit 27.

[24] Footnote 123 sets out a quote from Dr Nelson’s report in support of the submission.  The footnote reads “Dr Melson noted that the plaintiff was ‘certainly not going to be going to the band saw in the future’”.

[25] The plaintiff’s submission is in his written submissions at para 87.

[26] Exhibit 37.

[27] That conclusion is, in my view, supported by cl 12 of the Industrial Agreement (Exhibit 37).  Whilst neither party referred to it, it provides that if an employee is absent from work without notification for two consecutive working days, they will have been considered to have abandoned their employment.  It provides that should that occur the employer would then take reasonable steps to contact them and if the employer was unsuccessful, the engagement would be terminated.  This seems to be precisely what occurred in the case of the plaintiff.

[28] Amended Reply, court document no. 43, para 11(A)(d).

[29] Para 11(A)(e).

[30] Para 11(A)(f).

[31] Plaintiff’s written submissions, para 89.

[32] Dr Noon’s report of 21 July 2019 says: Progress will be evaluated after the sixth session”.

[33] Plaintiff’s written submissions, para 90.

[34] Plaintiff’s written submission, para 88.

[35] Plaintiff’s written submissions, para 109 and footnote 156.

[36] Plaintiffs written submissions, para 107.

Close

Editorial Notes

  • Published Case Name:

    Ritchie James Edward Lowe v Greenmountain Food Processing Pty Ltd

  • Shortened Case Name:

    Lowe v Greenmountain Food Processing Pty Ltd

  • MNC:

    [2024] QDC 204

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren SC, DCJ

  • Date:

    29 Nov 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Fox v Wood (1981) 148 CLR 438
1 citation
Jump To
Cite 1 - (1981) 148 CLR 438
Hobbs v Oildrive [2008] QSC 45
2 citations
Jump To
Cite 1 - [2008] QSC 45
Cite 2 - [2008] QSC 45

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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