Australian Meat Holdings Pty Ltd v Keith Stafford [1996] QCA 169

THE COURT OF APPEAL [1996] QCA 169 SUPREME COURT OF QUEENSLAND Appeal No. 213 of 1995 Brisbane [Australia Meat Holdings Pty Ltd v. Stafford] BETWEEN: AUSTRALIA MEAT HOLDINGS PTY LTD (Defendant) Appellant AND: KEITH STAFFORD (Plaintiff) Respondent Macrossan CJ Davies JA Byrne J Judgment delivered 31/05/1996 Judgment of the Court APPEAL DISMISSED WITH COSTS. CATCHWORDS: NEGLIGENCE - whether employer negligent - whether employee contributorily negligent. DAMAGES - future economic loss - whether quantum excessive. Counsel: G.M. Egan for appellant J.A. Griffin Q.C., J.B. Rolls for respondent Solicitors: Cleary & Lee for appellant Shine Roche McGowan for respondent Hearing Date: 10 May 1996 -- 1 of 6 -- THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 213 of 1995 Brisbane Before Macrossan CJ Davies JA Byrne J [Australia Meat Holdings Pty Ltd v. Stafford] BETWEEN: AUSTRALIA MEAT HOLDINGS PTY LTD (Defendant) Appellant AND: KEITH STAFFORD (Plaintiff) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered : 31/05/1996 In June 1994 the respondent cut himself while working as a slicer in the boning room of the appellant's meatworks. He was slicing a flank of meat, trimming away fat. He held the meat with his left hand. The knife was in his right, dominant hand when, the respondent testified, it "slipped" on the fat of a flank while moving towards the left hand. It cut into the left wrist just above an area protected by a short mesh glove, dividing the tendon of the extensor pollicis brevis, which is used in extending the thumb. It is said for the appellant that the evidence was not sufficient to sustain those findings. However, the respondent's own evidence, which included a demonstration, contained a description of events that accords with them. -- 2 of 6 -- 2 Negligence The conclusion that the appellant's negligence caused the accident is challenged. His Honour identified a "real risk" that a slicer might cut his non-dominant hand in the way the respondent did. The evidence supported this finding. Other slicers who worked in the boning room testified that the job occasionally required them to cut towards the non-dominant hand. Cuts while using knives on carcasses, though not frequent, "occurred from time to time", as the judge said. His Honour correctly decided that the appellant should have taken reasonable care to protect the slicers from the foreseeable risk of injury to their non-dominant forearms. Long, protective gloves were available. An insistence that the slicers wore them would not have involved undue expense or affected the volume and quality of their work. The injury would not have happened had the respondent worn a suitable glove. So there is no error in the conclusion that the appellant's negligence caused the injury. No contributory negligence The contention that contributory negligence should have been found is based on a concession by the respondent who, in cross-examination, agreed that, in cutting towards himself, he had done something "totally unsafe". His point was that the system was inherently dangerous. As has been said, the required tasks exposed slicers to the risk of cuts to the non-dominant forearm, and the appellant should have required the slicers to wear protection. In the circumstances, its omission to take reasonable care for the respondent cannot be seen as a failure by him to take reasonable care for his own safety: cf. State Rail Authority of New South Wales v. Wiegold (1991) 25 NSWLR 500, 509. -- 3 of 6 -- 3 Damages $20,000 was awarded for pain and suffering and loss of enjoyment of the amenities of life. $22,000 was allowed for future economic loss. These two components are said to be so high as to call for intervention. The cut was 2.5 cm long and deep. The wound was cleaned and the ends of the tendons repaired under general anaesthetic. A plaster cast was applied. The respondent was discharged from hospital next day. The cast was removed after a month. A week later, the respondent went back to work on light duties. He returned to his usual work a fortnight later. While the wrist was in plaster, the respondent was disabled and suffered much pain. Scarring formed at the site of the tendon repair. Dr Curtis, an orthopaedic surgeon, described the amount of scar tissue as "exuberant". The scarring makes thumb movements uncomfortable at times and causes discomfort on sustained grasping or gripping. It irritates the sheath through which the tendon travels, producing tenosynovitis, which causes the discomfort and some inflammation. Pain occurs intermittently, persisting for a few minutes, and recurring throughout the day. There is tenderness and numbness at the site of the scar. The respondent is also aware of a "purplish" discolouration of the wrist. Sometimes he is troubled by the injury while sleeping or resting, although these symptoms usually do not prevent sleep. Activities such as gardening and working on his car can also precipitate pain. The respondent has difficulty performing fine or intricate tasks. More importantly, there is weakness in the left wrist and hand, as well as a loss of dexterity and endurance in tasks involving sustained use. Wasting of the musculature of the forearm is also apparent. Dr Curtis assesses the residual disabilities as representing a 10% loss of function of the left upper limb as a whole. The respondent was 53 when injured. Over the years he had suffered many injuries, including to both wrists, the neck, the back, the shoulders and the left foot. These had -- 4 of 6 -- 4 adversely affected his quality of life. The back injury, for example, made him give up playing squash. But the wrist injury is a significant burden. It has occasioned, and will in the future cause, a deal of pain, discomfort and inconvenience. The award for pain and suffering and loss of the enjoyment of the amenities of life was generous. However, in view of the extent of the persisting symptoms and limitations, it is not so high as to justify interference. The judge accepted Dr Curtis's evidence that the injury had resulted in diminished earning capacity. Dr Curtis expected that the respondent might "plod on until he's, maybe, 60", rather than retiring at 65. As it happens, early retirement was in prospect in any event because of problems with the shoulders, lower back and right wrist. Still, the cut to the wrist had a major impact. In Dr Curtis's opinion, the earlier injuries and disabilities had not interfered much with the respondent's working capacity. The wrist injury, however, was "the last straw", making it almost certain that the respondent would not work until 65. After reviewing the pre-accident injuries, the judge held, appropriately enough, that the wrist injury made it more likely that the respondent's working life would be cut short by "some five years". His Honour then evaluated the chance that alternative, equally remunerative, employment would be found with the appellant when the respondent became unable to continue as a slicer. The judge considered that he was twice as likely (60%) to have secured other employment with the appellant had he not sustained the wrist injury. Next, his Honour ascertained the present value of the respondent's wages between 2000 and 2005, calculated on the assumption that he will earn at the average of his wages in the year ended 30 June 1995. This rate is about $90 per week less than the wage the respondent was receiving when injured. The sum yielded by this exercise is near $65,000. In arriving at the $22,000, his Honour took into account (i) that the injury was only partially responsible for the respondent's inability to work until age 65, in the sense that -- 5 of 6 -- 5 pre-accident disabilities and vicissitudes would very likely have resulted in his not working until 65 anyhow; (ii) that the accident had halved his chances of obtaining alternative, equally remunerative, employment with the appellant; and (iii) "other contingencies", as they were compendiously described, which no doubt include the greater risk to his continued employment before he attains age 60. The assessment of future economic loss necessarily lacks mathematical precision. There are, as his Honour said, many uncertainties. However, the risks of reduced income both before and after the respondent reaches 60 were appreciable and had to be reflected in an appropriate award. The sum allowed for future economic loss is supported by the evidence, and it is not manifestly excessive. Orders The appeal should be dismissed with costs. -- 6 of 6 --