The plaintiff suffered a back injury in March 2012 while employed by the defendant as a meat boner in a meat-processing facility.
The plaintiff was boning cow carcasses when he sustained the injury. While undertaking boning work, the plaintiff was required to wear a metal mesh glove to protect his hand. Before the incident, the plaintiff’s glove lost its tensioning ability, causing the glove to be lose-fitting. The plaintiff could not recall asking for a replacement; the team leader had gone into the back office, and there was no one to ask. The plaintiff was not in a position to leave his post to get a new one.
The plaintiff claimed he requested that the pace of the process line be reduced, as there was a back up of carcasses to work through. The supervisor allegedly refused this request. The back up of carcasses resulted in a change in working position for the plaintiff, in that he was further from the process line and closer to his co-workers, effectively standing “shoulder to shoulder”. This made it difficult for the plaintiff to place the meat on the conveyor belt, and as such he resorted to throwing the meat.
The defendant had a policy of issuing disciplinary warnings for working slowly, dropping cuts of meat on the floor and throwing cuts of meat.
The plaintiff alleged that while throwing the meat, he felt a sensation as though his metal glove was caught on the meat. To save the meat from dropping onto the floor, the plaintiff stumbled forward and twisted his body in an attempt to free his glove from the meat. The plaintiff felt immediate pain in his right trapezius muscle.
Boddice J held that it was not a reasonable system of work to place the onus of attracting the supervisor’s attention on the plaintiff, especially as written warnings could be issued for falling behind in production. Boddice J held that the back up of carcasses created a known safety risk which the supervisor should have recognised and taken steps to slow or stop the chain. The failure to have a supervisor on the boning floor on the morning of the injury placed the plaintiff in a position were he was at risk of an injury, which Boddice J was satisfied, was not insignificant. Boddice J was also satisfied the defendant was aware of the risk of injury, which could have been easily addressed by proper supervision.
As per s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’), Boddice J held that the risk was foreseeable, not insignificant, and a reasonable person in the position of the person would have taken precautions.
Boddice J held that the incident that injured the plaintiff arose as a consequence of the defendant’s failure to property implement their system of work. Such a failure was a breach of the duty of care owed by the defendant to the plaintiff.
Boddice J also held that there was no basis for a finding of contributory negligence even though the plaintiff threw the meat, which the defendant discouraged. Boddice J found the defendant placed the plaintiff in a position where it was necessary to adopt the stance of throwing the meat. That action did not constitute a failure to take reasonable care for his own safety.
When he returned to work the plaintiff was still experiencing pain and was consequentially slower performing his work. He received a warning from the defendant for his slower work. The plaintiff found this unfair and resigned.
The plaintiff had trouble gaining employment after resigning. He became depressed and suffered financial difficulties, stress and relationship breakdown. He was prescribed antidepressants and sent to a psychologist on a mental health care plan. Once the plaintiff did gain employment in a different industry, he still reported to suffer ongoing back pain which affected his concentration. The plaintiff was not able to undertake recreational pursuits and gained significant weight. The plaintiff did not believe he would be able to pursue his goal of tertiary education due to his back pain.
While the plaintiff complained of back pain which did not settle, medical evidence suggested that the plaintiff had no ongoing restriction due to the physical injury to his back. As a consequence, Boddice J did not accept that the ongoing symptoms were as extensive as the plaintiff suggested. However, Boddice J did accept that the plaintiff developed significant psychological sequelae as a consequence of the pain he suffered following the incident and from the ensuing financial difficulties. As the plaintiff’s pain and disability were relatively minor and medical evidence suggested no restricted movement, Boddice J assessed the appropriate ISV as four.
As the plaintiff chose to terminate his employment, he was not entitled to recover all of the claimed past loss of income. However, Boddice J did accept that his pain and the psychological impact limited the employment available to the plaintiff.
Boddice J did not accept that the plaintiff was intending to peruse tertiary education. Therefore, this was not taken into account. The assessment of future economic loss was taken from the plaintiff’s inability to undertake certain forms of activities, which limited the scope for future employment.
As the plaintiff’s physical and psychological injuries were largely resolved, Boddice J held that a claim for significant future medical treatment was unsustainable. However, Boddice J considered it was appropriate to award a small component for future special damages.
The plaintiff was 28 years old at the time of the trial and awarded:
|Past economic loss
|Future economic loss
|Future superannuation loss
|Fox v Wood
|Past special damages
|Future special damages
David Cormack – Brisbane Barrister & Mediator