Brunker v Consolidated Meat Group Pty Ltd
[2008] QSC 198
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- Unreported Judgment
- Brunker v Consolidated Meat Group Pty Ltd[2008] QSC 198
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Brunker v Consolidated Meat Group Pty Ltd[2008] QSC 198
Brunker v Consolidated Meat Group Pty Ltd[2008] QSC 198
SUPREME COURT OF QUEENSLAND
CITATION: | Brunker v Consolidated Meat Group Pty Ltd |
PARTIES: | BRUNKER V CONSOLIDATED MEAT GROUP |
FILE NO/S: | 1018/03 |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
ORIGINATING COURT: | Supreme Court at Townsville |
DELIVERED ON: | 29 August 2008 |
DELIVERED AT: | Townsville |
HEARING DATE: | 18, 19 & 20 August 2008 |
JUDGES: | Cullinane J |
ORDERS: | Judgment for the plaintiff against the defendant in the sum of $88S,489.08 |
CATCHWORDS: | NEGLIGENCE- BREACH OF DUTY -BREACH OF STATUTORY DUTY - CAUSATION - DAMAGES – where plaintiff was employed as a slicer in a meat works - where plaintiff moved a quantity of meat onto conveyor - where plaintiff suffered injury- whether defendant liable pursuant to s 28 of the Workplace Health and Safety Act 1995 - whether defendants breached common law duty of care - whether plaintiff was guilty of contributory negligence Workplace Health and Safety Act 1995, s 28 Bourke v Power Serve Pty Ltd and WorkCover Queensland & Anor (2008) QCA 225 cited Turner v State of South Australia 42 ALR 669 cited |
COUNSEL: | Moon, AJ for the plaintiff Arnold, A for the defendants |
SOLICITORS: | Ruddy Tomlins and Baxter for the plaintiff Swanwick Murray and Roche for the defendant |
- The plaintiff claims damages for personal injuries said to have been suffered by him in March 2000 in the course of his employment as a slicer at the defendant's meatworks at Rockhampton.
- The plaintiff was born on 4 December 1956. He left school at about age 15 having completed Grade 9.
- Although the statement of claim alleges that the incident occurred on or about 20 March 2000 other material before the court identifies the incident as having occurred on 29 March 2000.
- There is very little if any contention about the facts of the incident itself but there is a substantial dispute as to what injury if any the plaintiff sustained in the incident and whether he presently suffers any consequences of any such injury.
- The plaintiff had been working at the meatworks for approximately three years prior to the incident.
- On the evening in question he was engaged in slicing shins and chuck steak.
- There were, on this day, less people engaged at the plaintiff’s station than was normally the case. The result was a build up of meat.
- Exhibit 7A is a report of Mr Kahler, an engineer who was called as a witness. Photographs which appear at page 3 of that report show a boning line. Photographs at page 6 show a slicing table. The plaintiff was working at the position marked 2. These photographs were taken on an earlier occasion and the plaintiff thought there were some alterations between that time and when he was working there but these are not material to this matter.
- A build up of meat occurred on the plaintiff’s table and the foreman, one Adrian Doube, walked to the chain and told the plaintiff to "stop the meat". By this the plaintiff understood him to mean that the meat should not be placed on the conveyor but left on the table.
- The meat conveyor was immediately to the left of the plaintiffs table. The chain was stopped for about 10 to 15 minutes. During this time the plaintiff continued to work on shins and chucks and a substantial quantity of meat built up on the table in front of him and to either side of him.
- The meat to the plaintiffs left was the meat that the plaintiff had sliced whilst the meat to his right was coming from the boners and was meat which the plaintiff had to slice.
- The plaintiff gave evidence that the chuck tenders came in sizes of about one to two kilos or two to three kilos. The shins varied between six, seven and eight kilos.
- The plaintiffs estimate was that the quantity of meat which had built up and which had to be placed on the conveyor was about 60 to 70 kilograms, something which he said he calculated by reference to the type of meat in the pile and the number of each of these types.
- Mr Kahler did a calculation by reference to the tally sheets of the defendant and calculated as best as could be done from the information available that the weight of the meat in the pile could have been in the order of 110 kilograms.
- The plaintiff estimated the height of the pile of meat as about two to three feet, and its width was about two feet or so.
- The foreman again approached the plaintiff and said "Put the meat on the belt" and walked off.
- Having been told by the foreman to put the meat back on the belt, the plaintiff lent forward, extending his right arm and placed it around the pile of meat and twisted to the left so as to scoop the meat onto the conveyor. He was endeavouring to move the whole pile in one movement so that his workplace would be clear and the meat would be conveyed down the processing line.
- There was no real dispute that the quantity of meat was such as to be too heavy to be safely moved in a single movement as the plaintiff did.
- The plaintiff says that he got the pile onto the conveyor and then felt a sharp upper back pain "through into the chest". He said that the pain "stemmed from in the upper back --- through the upper back --- into the chest and then was aggravated by any movement of the right shoulder."
- The plaintiff reported the incident and continued working for a short while and then told the foreman that he wanted to see the nurse. He saw the nurse at a nurse station at the meatworks and told him of the circumstances in which he had been injured and the areas in which he was suffering pain.
- Although the defendant in its pleading put the occurrence in issue there was no evidence led by it challenging the plaintiffs account.
- The plaintiff says that he was at no time given instructions about lifting. Exhibits 17A and B are documents which bear the plaintiffs signature. One is dated 23 January 2001 which post-dates the accident whilst the other is dated 20 January 2000 which pre-dates it. Each has the plaintiff signing a document which reads "I have completed the safety induction programme and fully understand my obligations while I am an employee/contractor of Consolidated Meat Group."
- The earlier of the two refers only to "an employee".
- The plaintiff says that whilst he signed these documents he did so because he was asked to do so but he was never at any time given any instructions about lifting or the risks involved in doing so.
- The defendant did not lead any evidence which contradicted this.
- The plaintiff has pleaded his case in negligence, breach of duty and breach of statutory duty.
- The breach of statutory duty alleged is that contained in s 28 of the Workplace Health and Safety Act 1995 as amended.
- Section 28(1) of the Act imposes on an employer the obligation to ensure the workplace health and safety of its workers.
- Breach of this section gives rise to a civil cause of action. This duty is absolute. See Bourke v Power Serve Pty Ltd and WorkCover Queensland & Anor (2008) QCA 225.
- The effect of the legislation is summarised in paragraphs 32 and 33 of that judgment:
"[32] Under s 28(1) the employer's duty to ensure the employee's safety is absolute. It is not expressed as a duty to supply equipment, advice, training, conditons, or assistance of a particular type or at all. Subject to the operation of s 26, s 27 and s 37, if an employee such as the appellant is injured through the failure of a piece of necessary safety equipment provided to him by his employer there is a breach of the obligation imposed by s 28(1). The employer has failed to ensure the safety of the employee. Causation is established. if the employee's safety had been ensured, the employee would have been so injured
[33] A requirement that the appellant prove that "had there been a system of inspections and checks the defect in the pole strap would have been detected" is not to be found in s 28(1). Nor is it justified by s 27. an employer can avoid liability, where there is no regulation, ministerial notice, advisory standard or industry code within the meaning of s 27(1), by choosing "any appropriate way to discharge the ... workplace health and safety obligation for exposure to the risk" and by taking "reasonable precautions" and exercising proper diligence to ensure the obligation is discharged The employer may also establish a defence under s 37 or discharge the obligation imposed by s 28(1) by acting in accordance with s 26. Section 26 has no relevance for present purposes. Section 27 however does not define the obligation under s 28(1). It states, in quite general terms, a means by which such obligation may be discharged"
- The defendant here did not seek to lead any evidence which might have provided an answer to the plaintiff's cause of action based upon breach of statutory duty.
- The plaintiff is entitled to succeed upon this basis alone.
- In addition however, it seems to me that the plaintiff would be entitled to succeed in accordance with common law principles.
- It was, in my view, plainly foreseeable that in the circumstances in which the plaintiff found himself when he was told to put the meat back on the conveyor he would attempt to do so in the way that he did so as to enable the defendant's processing operations to continue and to enable his own work to be performed without the impediment of the build up of meat in front of him.
- The case bears a good deal of similarity it seems to me at least in principle with that of Turner v State of South Australia 42 ALR 669.
- The defendant ought to have had in place a system which would have prevented the plaintiff being exposed to an unnecessary risk of injury in the way that he was. The various ways in which a safe system might have prevented the accident are discussed by Mr Kahler in his report and I accept his opinions. It seems to me that one simple way to have avoided the incident was to have instructed the plaintiff not to attempt to move the meat in one movement and to have either instructed the plaintiff as to a safe way of moving the meat or to have provided assistance to him to do so.
- The defendant alleges that the plaintiff was guilty of contributory negligence in failing to move the meat in a number of movements with smaller quantities being moved each time.
- The plaintiff in taking the steps that he did, did so to enable to defendant's factory to resume its operation and was, on my view of things, doing what could have been expected of any employee in the situation he found himself in. I reject the allegation that he was guilty of contributory negligence. I find the defendant guilty of negligence and breach of statutory duty.
- The plaintiff has resided in Collinsville all of his life having been educated there. For a period after leaving school he worked as a cleaner in a butcher's shop and then as a labourer with the Bowen Council and Queensland Rail.
- He commenced work at Collinsville Mines as an underground miner when he was 24. He worked as a machine operator.
- The plaintiff left the mines at a time when its closure was imminent. He left on 30 November 1997.
- His evidence is that he had intended up until that time to work in the mines until retirement.
- He was unable to obtain employment in any of the mining operations around the area and took a job as a meatworker at the defendant's meatworks in Rockhampton. His partner and their child had moved to Rockhampton and taking this employment enabled the plaintiff to be near his daughter.
- He says that it was always his intention to get a job back in the mines when jobs were available.
- The mine in which the plaintiff had worked was a coal mine and it is the plaintiff's case that he intended always to return to work as an underground miner. There are, of course, a number of coal mines in the Bowen Basin. Collinsville is situated in part of the Bowen Basin.
- The plaintiff in framing his claim in accordance with the UCPR based his claim for economic loss upon the income he would have earned as a meatworker. At a somewhat belated stage of proceedings the basis of the claim was altered so as to claim economic loss as a miner.
- The income which a coal miner would earn is far greater than that which a meatworker would earn. The damages which the plaintiff would receive if damages were assessed on this basis would inevitably be far greater than what they would be if damages were assessed on the basis that he was going to remain a meatworker. Such a claim therefore has to be treated with some degree of scepticism and scrutinised very carefully.
- The plaintiff is a tall and solidly built man. He has had little in the way of education and I mean no disrespect to him when I say that he does not present as a man of high intelligence.
- He has lived virtually all of his life in a mining town and for some 17 years he was employed as an underground miner.
- There was evidence from a younger brother of the plaintiff, one Mark John Brunker who worked at the Collinsville mines in both the open cut and later the underground section between 1987 and 1994.
- Following that he worked at the North Goonyella mine and then a mine at Tieri for some years. Since 1999 he has been employed at the Moranbah mine. He provided evidence of his earnings over the period from the year ended 30 June 2002 until 30 June 2008. He has progressed within the industry to the position where he is now a supervisor.
- Russell Lee York is an employee manager and a workplace health and safety officer for a company. He has been in his current position for some four years and prior to that was an employment manager for that company's predecessor. His employer provides labour for the companies which operate the coal mines
- He has the task of placing workers at mines in the Bowen Basin. He was previously an underground miner.
- His evidence was that from the year 2000 onwards work as an underground miner in the various mines in the Bowen Basis has been plentiful and that the plaintiff, with his experience, ought to have had no difficulty obtaining employment during this time.
- Mr York said he himself had been retrenched from his job as a miner during the period from 1979 until 2002 on three occasions but there was always mining work to go to.
- The evidence suggests that the plaintiff had a good work history and my impression of him was that he was a man who took some pride in his ability to perform physical work.
- Following the incident he saw Dr Angus, a doctor to whom the defendant referred employees who had suffered injuries.
- At this time the plaintiff says the pain in the upper back ran around into the chest region and that movement of his shoulder had an impact on the pain in the upper part of his back. This is the way in which the plaintiff described his pain and the area of his difficulties on a number of occasions in evidence. His quantum statement suggests that the pain has increased with time and the location of the pain is now somewhat more generally described. See paragraph 6 of Exhibit 8.
- Dr Angus was called as a witness by the defendant. He accepted that the effect of his notes was that the plaintiff saw him complaining of pain and discomfort in the chest "and to the right upper thoracic scapula type area".
- The plaintiff was prescribed Voltaren for pain and continued working. He says that Dr Angus told him that he should continue working and "to see how it goes."
- He says that he suffered pain and discomfort working as a slicer but continued to work However because his problems were not improving he saw a chiropractor in July 2000. The chiropractor was apparently based at the meatworks. Following the treatment by the chiropractor he suffered some acute pain in his chest. This lead him to return to see Dr Angus and he was placed on light duties for a few weeks and then sent back to the boning room pushing meat cartons. He continued doing various jobs at the meatworks until about April 200I when he was handed a letter of termination. He has not worked since that time.
- In about September 2000 the plaintiff was found to have fractured ribs. This was found upon X-ray and a whole body bone scan. It seems clear that these ribs were fractured in the course of a manipulation by the chiropractor and were the cause of the acute pain in his chest that he felt following the treatment. Some attack was made upon his credit because of his failure to tell Dr Angus and other medical practitioners whom he saw of the onset of the pain following the chiropractic treatment. The plaintiff said that he was concerned about making any claim that the chiropractor had caused the fractures in the absence of sufficient evidence that this was so. I do not think his explanation reflects adversely on his credit.
- The plaintiff says that he suffers pain constantly. He has pain in his upper back and in his shoulder. He has pain which is not constant in the right chest area. He says that his whole right side causes him pain, sometimes in the collarbone area, sometimes in the right chest, sometimes in the upper back and sometimes in the right shoulder. He says that he suffers soreness when he moves his shoulder which appears to have got worse with time. He takes substantial medication including significant dosages of Tramal, a pain killer.
- There is a dispute between specialists who were called to give evidence as to what if any condition the plaintiff suffers from and whether he suffers from any condition which is a consequence of the incident of 30 March 2000.
- The primary dispute in the medical evidence lies between the evidence of Dr Maguire, an orthopaedic surgeon who was called for the plaintiff and Dr Steadman, an orthopaedic surgeon called by the defendant.
- Dr Maguire's practice includes a particular interest in the area of the shoulder. The other specialists called do not have this particular area of interest. This is not to suggest that as orthopaedic surgeons they are not fully qualified to speak about these matters.
- An MRI carried out in November 2001 revealed a rotator cuff tear of the supraspinatus of the right shoulder. There is a dispute between Dr Maguire and Dr Steadman as to the cause of this.
- Dr Steadman is of the view that it is not possible to make a specific diagnosis of any condition (apart from the supraspinatis) suffered by the plaintiff and he cannot identify any mechanism of injury which would have caused any of the complaints which the plaintiff makes. He says that the rotator cuff tear is the consequence of degenerative change and places some emphasis upon references in the MRI report of mild degenerative change of the acromoclavicular joint with a small spur laterally.
- He is critical of Dr Maguire's diagnosis of a soft tissue injury to the right peri scapular muscles and right thoracic region.
- Dr Maguire expresses the view that the plaintiff suffers from two conditions, both of which are a consequence of the injury he sustained on 30 March 2000.
- One of these is in the area of the thoracic spine being in the nature of a soft tissue injury to the right peri scapular muscles (this was referred to at times as the medial posterior scapular) with associated muscle spasm and decreased range of motion of the thoracic spine. The medial posterior scapular is situated towards the spine on the inside of the shoulder blade. Dr Maguire explained that it was "between the top of the shoulder and the middle of the shoulder blade, so the shoulder blade goes from what you can see at the top to about midway down the spine".
- Dr Maguire says that the plaintiff has sustained a soft tissue injury in the region and the specific muscles involved include injuries to the levator scapular, the rhomboids, both major and minor, and in particular the serratus anterior, trapezius and external oblique. He rejects the suggestion that such a diagnosis is not known in mainstream surgical practice as Dr Steadman suggested. He also rejects the suggestion that his assessment of the plaintiff’s level of physical impairment in this regard is entirely subjective or probably related to post injury pathology. He says that the plaintiff clearly has weakness associated with forward flexion, abduction, internal rotation and external rotation.
- The second condition which the plaintiff suffers from is the rotator cuff tear of the supraspinatus of the right shoulder to which reference has already been made. It is Dr Maguire's view that this is a consequence of the accident. According to Dr Maguire it is highly unlikely that a person of the plaintiff’s age with no symptoms in the area would have such a condition. It is much more likely that it is the consequence of a specific injury on a specific occasion and he thinks that the injury which appeared on the investigative findings is a consequence of the incident of 30 January 2001. He rejects Dr Steadman's view that the rotator cuff injury is most likely age related.
- The observations of Dr Maguire and Dr Steadman of the plaintiff and his restrictions are markedly different. This is not to suggest that the plaintiff was found by Dr Steadman to have a normal right shoulder. There was some prominence of the acromoclavicular joint and wasting of the neck and inner scapula and pectoral muscles in the right side before the shoulder girdle. However Dr Maguire found a significantly greater loss of movement. He also found a protraction of the scapula, something which he says the plaintiff could not simulate. This involves moving the plaintiff’s arms forward and observing the shoulder blade which sticks out. Dr Steadman says he attempted to do this and did not observe any protraction.
- I should mention that the plaintiff was seen by Dr Thomas, an orthopaedic surgeon in Cairns to whom he was referred by the defendant. He saw the plaintiff in August 2000. He was complaining of pain around the right thoracic area and tenderness of the right lower ribs in the mid axilliary area. Dr Thomas thought that the chest complaints were the result of the fractured ribs. He thought that an MRI which he had taken of the dorsal spine showed no significant pathology in that area and that any soft tissue injury that he may have sustained should have subsided.
- Dr Low, an orthopaedic surgeon saw the plaintiff in 2002. He reported that there was a full range of movement of the neck and the right shoulder but went on to refer in his report to what Dr Maguire said would represent a significant limitation of internal rotation. Dr Low says that he did not "pick up" the protraction of the scapula but it is not clear that he examined for it.
- The plaintiffs complaints of pain were initially and still remain primarily in the area associated with the condition referred to by Dr Maguire as a soft tissue injury in the right peri scapular region and right thoracic region.
- Dr Maguire explained what he had found so far as the location of pain is concerned at page 122, lines 20 to 40.
"Well, I found that he had pain when he lifted his arms forward, but it wasn't over the top of his shoulder which is what everyone describes. This is the thing that I've tried to make clear in all of my description, is that the predominance of the reports of - or pointed out pain or describing no pain in the shoulder region. His major painful region is in the peri scapular region, so in the medial border of the scapula. He has weakness in the upper part of his arm. He has positive tests of impingement when you examine him and they're formal tests that we do so they're at the extremes of motion. "
- Dr Maguire's view was that the plaintiff's description of his symptoms from the time of the accident were consistent with what he found and that the conditions which he found were caused by the accident.
- It seems common ground that if the plaintiff suffers from those conditions, he is not capable of employment and is going to remain so. Dr Maguire thought that there might be some benefit to be obtained from ongoing physiotherapy and perhaps acupuncture.
- Dr Adams, a specialist in occupational medicine called by the defendant thought that the plaintiff was not capable of working as an underground miner if his complaints were accepted. He thought that the plaintiff's medication would itself preclude him from underground mining work and that the rotator cuff disability would prevent him from engaging in a number of the activities which would be required of an underground miner.
- Faced with the conflict in the medical evidence there are some matters which are of significance in attempting a resolution of the dispute which arises.
- Firstly, the plaintiff on my assessment of him is a hardworking man who has a good work history. He continued working after the injury he sustained on 30 March 2000 and on my assessment of him did so under some considerable difficulty. Since his employment was terminated he has not returned to work and is currently incapable of working. He takes substantial quantities of medication,. My impression of him was that he was a man who took some pride in his capacity to perform physical work. I reject any suggestion that he is a malingerer. Prior to this day he performed heavy work without difficulty. Since that time he has suffered pain and discomfort. He has had to cease work about a year after the incident.
- Given that one of the particular areas of expertise of Dr Maguire is the shoulder, one would be inclined to his opinions unless there was some good reason not to accept them. Having considered the evidence as a whole I accept the evidence of Dr Maguire and accept his description of the two areas of disability which he says the plaintiff suffers from and I also accept his opinion that they are a consequence of the incident. I find his evidence to be the more convincing.
- I accept Dr Maguire's assessment of the plaintiff's loss of function.
- The plaintiff's damages will therefore be assessed upon the basis that his present condition is the result of the defendant's negligence or breach of statutory duty. He is incapable of employment.
- I think it is likely given his background and given the obvious incentives to do so that he would have sought at some time to return to the work of an underground miner. That work appears to have been plentiful over recent years but it would be quite unrealistic to assess damages upon the basis that present conditions will continue indefinitely. The plaintiff has already experienced in his life as a miner, the loss of work and an inability to obtain other work in the mines. For all of the substantial incomes that the industry is currently providing and has over recent years, it is an industry with a somewhat precarious history involving fluctuating economic fortunes.
- I accept the plaintiff's complaints as set out in his statement. It is obvious that the disabilities that he suffers limits his activities generally and cause him a good deal of pain and discomfort.
- The plaintiff is now 51. I think it would be unrealistic to assess his damages upon the basis that he would remain in the mining industry until 65 as was claimed and significant discounts need to be applied for the ordinary contingencies and vicissitudes of life.
- I assess the plaintiff's general damages of $55,000.
- I have had placed before me evidence as to what the plaintiff would have earned as a meatworker and then an underground miner. These calculations assume he would have remained a meatworker until 30 June 2001 and then re-entered the mining industry and remained there until the present. The income which it is suggested the plaintiff might have earned as a miner is based upon the income of his brother. However as I have indicated his brother appears to have progressed to a supervisor. Whether this has resulted in an increase in his income is somewhat unclear. The claim for past economic loss calculated on this basis is some $459,000. I think that the assumptions that are made are too generous to the plaintiff although I think that he is entitled to have his damages assessed upon the basis that at sometime within the period between the time of his ceasing work and the present he would have re-entered the mining industry. There were personal reasons which made it attractive to him to live in Rockhampton although Rockhampton is itself located within proximity to some of the coal mines of the Bowen Basin.
- Doing the best I can and applying some degree of moderation in making the necessary assumptions upon which to calculate past economic loss I allow the sum of$300,000 for past economic loss.
- So far as interest is concerned I have been told that he has received $86,185 by way of income substitution payments. I allow interest for 7.4 years at 4.5% on the difference producing a figure of$71,200.
- I allow past superannuation at 8%, a figure of $24,000.
- The current rate which is adopted for the purposes of future economic loss is $1,576 per week net. This is claimed over 13 years and discounted by 20% for contingencies.
- The plaintiff’s brother worked as an underground miner until approximately 12 months ago. The net income of the plaintiffs brother which has been placed in evidence for the years from I July 2001 until the present date show a very significant increase between the financial year ended 30 June 2006 and the financial year ended 30 June 2007. This would have been on my understanding of things while he was still an underground miner. There is no explanation as to why this occurred.It may simply reflect boom conditions in the mining industry or perhaps circumstances personal to the plaintiff’s brother. I think some degree of wariness in applying these figures directly needs to be adopted.
- I have adopted a rate of $1,000 per week net over a period of nine years thus making full allowance for appropriate contingencies. The present value of such a loss is $377,982.
- I allow superannuation on this sum at 9% producing a figure of $34,018.
- The plaintiff is entitled to recover an amount of $4,294.31 paid by WorkCover and $2942.95 recoverable by Medicare. There is evidence of the plaintiff’s expenditure on medication and travel. This is claimed in the sum of $6,242.64 with interest at 4.5% for 7.4 years producing a figure of $2,078.79. I allow these amounts.
- The Fox v Wood component is $1,044.72 and is recoverable.
- There are claims for future medication and travel which in my view are borne out by the evidence and I allow the amounts claimed of $6,233.92 and $9,964.30 respectively.
- The total of these sums is $895,001.63. From this has to be deducted the sum of $9,512.55 leaving a net figure of $885,489.08
- I give judgment for the plaintiff against the defendant in the sum of $885,489.08