Bleathman v Peterson's Industrial Paint Services
[2001] TASSC 128
•7 November 2001
[2001] TASSC 128
CITATION:Bleathman v Peterson's Industrial Paint Services & Ors [2001] TASSC 128
PARTIES: BLEATHMAN, Ewan Christopher
v
PETERSON'S INDUSTRIAL PAINT SERVICES
WILLIAMS, Gary
HIGHRIG CONSTRUCTIONS PTY LTD
(ACN 005 515 9260) T/AS HIGHRIG CRANE HIRE
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 2210/1997
DELIVERED ON: 7 November 2001
DELIVERED AT: Hobart
HEARING DATES: 13, 15, 18 - 21 June 2001
JUDGMENT OF: Slicer J
CATCHWORDS:
Torts - Negligence - Contributory negligence - Apportionment of responsibility and damages - Apportionment of responsibility - Between employer and employee - Apportionment in particular cases and situations - Failure of experienced dogman to secure load with a tag line - Contributory negligence assessed at 20 per cent.
Murfet v AAPC Australia Pty Ltd, carrying on business as Novotel Launceston [1999] TASSC 6, considered.
Aust Dig Torts [71]
Torts - Negligence - Contributory negligence - Liability for others negligence - Independent contractors - Duty of care - Employer's duty to provide a safe system of work - Employee injured by act of independent contractor to employer - Whether employer in breach of duty.
Kondis v State Transport Authority (1984) 154 CLR 672, applied.
Ford v Forestry Tasmania (No 2), B29/1996, followed.
Aust Dig Torts [76]
REPRESENTATION:
Counsel:
Plaintiff: W A Ayliffe
First Defendant: S P Estcourt QC, I L Hallett
Second and Third Defendants: K B Procter SC
Solicitors:
Plaintiff: Ayliffe & Ayliffe
First Defendant: Page Seager
Second and Third Defendants: Murdoch Clarke
Judgment Number: [2001] TASSC 128
Number of Paragraphs: 35
Serial No 128
File No 2210/1997
EWAN CHRISTOPHER BLEATHMAN v PETERSON'S INDUSTRIAL PAINT SERVICES, GARY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD
(ACN 005 515 926) T/AS HIGHRIG CRANE HIRE
REASONS FOR JUDGMENT SLICER J
7 NOVEMBER 2001
The plaintiff was injured in the course of employment while engaged in the transportation of steel by a Frana mobile crane ("the crane") at Derwent Park on 14 November 1996.
Relationship of parties
The first defendant operated industrial premises at 8 Hale Street, Derwent Park. It was upgrading those premises which involved the demolition of a building and the removal and storage of existing material including metal beams. The first defendant, through its manager, engaged the services of the plaintiff, a qualified and experienced rigger on 11 November, and contracted with the third defendant for the use of the crane. The second defendant, an employee of the third defendant, was the crane operator.
Basis of claim
The plaintiff commenced work on 12 November. He was given general instructions, but no specific directions as to the sequence of work or required safety procedures. The first defendant was not engaged in the type of work to be performed and relied on the skill and expertise of the plaintiff and engaged the services of the third defendant, which provided the equipment and its operator. The plaintiff, assisted by another employee of the first defendant, commenced work on the demolition of a structure and the removal of components and debris. The first defendant wished to keep some of the steel beams and joists from the dismantled structure for re-use, which were to be stacked at the rear of the first defendant's premises. The most feasible method was to take the items from the first defendant's premises onto Hale Street, along that street some little distance to an adjoining site at 4 Hale Street, through those premises and across the boundary line to the rear of the first defendant's premises. On 14 November, the crane operated by the second defendant arrived and the task of removal commenced. The accident occurred on that day at 4 Hale Street, the adjoining premises.
Term of employment
The plaintiff was engaged on 11 November as a rigger/dogman, at a rate of $22 per hour. He was given instructions as to the required task and, doubtless, was urged to complete the work as soon as possible. He was not given specific directions as to the method of work or safety procedures. There is no question that he was an employee (Hollis v Vabu Pty Ltd [2001] HCA 44), but his existing qualifications and the nature of the work to be performed are significant matters in any assessment of liability on the part of the employer. The plaintiff was a rigger by occupation and was also qualified as a dogman and scaffolder. He had worked in the construction industry since 1981, qualifying as a dogman in 1986 and a rigger in 1989. He had previously worked for the third defendant and had become aware of the first defendant's need for a qualified person to demolish the structure through that company. He had worked previously with mobile cranes. The plaintiff approached the first defendant and advised it that he was qualified to perform the task. The plaintiff believed that a crane would be needed to remove certain materials and, it is likely, that general arrangements between the first defendant and the third defendant had already been made. The plaintiff understood that some of his work would involve acting as a dogman and assisting the crane operator with the removal process. The plaintiff was made aware, in general terms, that he was to keep and store usable corrugated sheets, although it is less certain whether there was any specific discussion as to the steel beams and uprights. In cross-examination the plaintiff stated that he had assumed the first defendant wanted to keep the steel, although he did not believe there was a specific discussion about their storage. Work proceeded on 12-13 November. On 14 November, the second defendant arrived with the crane and after some preliminary clearing up, the crane was used to demolish a portion of the structure. When that was done, the second defendant suggested that the steel column or upright be removed for storage. Three beams between 6 and 7 metres were chosen and after the plaintiff had cut the anchor bolts, each was lifted and placed on the ground. The plaintiff placed the chains around the beams and the load lifted.
Method of operation
The crane comprises one unit. It has a retractable boom which can be extended or retracted depending on the nature and weight of the load. It is an articulated four wheeled crane with a cabin extending the width of the body. Its width is a little over 2 metres and in a standard carry position the crane boom is 3 metres high, 6 metres in length and 19 metres when fully extended. The cabin has a large window area with the windscreen being approximately 1.25 metres long and .55 metres high, with the driver window measuring 1 metre x .6 metres. The load carried on 14 November was held by wire straps which, in turn, were gathered by a metal loop or ring which was suspended from a hook fixed to the front section of the boom of the crane. The angle of the beams relative to the body of the crane when carried depended on motion and inertia. The boom was extended sufficiently so that a beam swinging in line with the crane's body would not make contact with the front of the crane.
The plaintiff affixed the three beams to the crane by means of two slings or chains attached to an eyelet. The load was raised to approximately waist height and the boom retracted so as to bring the load closer to the centre of gravity of the crane, although there remained sufficient room for the beams to swing without making contact with the vehicular body. With the load fixed, the second defendant reversed the crane from the site onto Hale Street. The plaintiff positioned and controlled the load, swinging it to an angle of approximately 45o to permit the beams to pass through the gate. On Hale Street the crane stopped and began to move slowly forward to the entrance of 4 Hale Street. The plaintiff claimed that he was holding the longest beam with both hands, on the right front side of the crane's cabin. The second defendant believed that the plaintiff was to the left front of the crane since the angle of the beams was between 30o - 40o to the crane. At issue was whether the right ends of the beams were closer to the cabin or further away than the left ends. It is accepted that the footing of the longest beam was on the right-hand side of the crane as it travelled along Hale Street, since the second defendant claimed that the plaintiff was guiding the beams by holding the non-footing end of the longest beam. It is clear that the footing end of the beam was to the left side of the crane after the accident. The significance of the difference is whether the beams had swung through an arc of slightly less than 180o during the turning movement (the second defendant) or whether the right-hand end of the beam was pushed forward less than 90o during the turning motion (the plaintiff).
The crane moved along Hale Street at walking pace, with the plaintiff controlling the beams. The distance travelled was some 26 metres. At the entrance to 4 Hale Street, the crane was required to turn some 90o and travel up a slight incline. The entrance way was 7.1 metres wide. The distance from the eastern gate post of 4 Hale Street to the nearest point of the outside margin of the kerb was 4.1 metres.
The plaintiff's version is that the crane turned and stopped some 2 metres back from the gates and as it did so he moved the beams through an arc of 45o to enable entry. In doing so, he said that he had moved the front of the beams to between 6 and 8 metres in front of the crane. The second defendant straightened the line by use of the articulating mechanism and, as the plaintiff swung the load back, the crane moved forward with a jolt, created by its movement over the kerb, causing the beams to sway. As the crane travelled through the entrance, the plaintiff continued to manoeuvre the load into the line of travel, but as he grappled with the load, the front right wheel of the crane passed over his right foot causing injury. The second defendant agreed that the crane stopped at a slight angle to the entrance and that he used articulation to straighten the crane. He said the crane was in the low range, first gear and the use of acceleration would increase the power, but not the speed of the crane. The turn was not very sharp, but there was no sudden move forward. He agreed that the load was "rocking around a bit". At that stage, on his account, the plaintiff was holding the end beam to the left of the crane and some 3 - 4 metres in front. He described the motion of the plaintiff as holding the non-footing end of a beam and moving it towards the front of the crane, so that it swung on an interior arc causing the non-footing end of the beam to end up on the right front of the crane. He said he saw the plaintiff move across the front of the cabin, some 1 metre in front of the crane, disappearing from his view at the front right of the crane. He was unaware that the crane had run over the plaintiff's foot.
Causation
The injury was caused by the front right wheel of the crane passing over the plaintiff's foot. The injury was made worse by the angle at which the foot was struck, causing it to be driven end on into the ground. The second defendant was the driver of a large, inherently dangerous, crane. A number of causes were said to have brought about the contact, which included:
(a)Failure on the part of the second defendant to keep the plaintiff in view at all times and to immediately stop the crane when unable to do so.
(b)Incautious manoeuvring of the crane over the kerb so as to cause a sudden forward movement with resulting instability to the load.
(c)Failure on the part of the plaintiff and/or the second defendant to tie the load to a fixed point on the crane or at least to use a tag line so that the movement of the beams could be controlled at a greater distance from the body of the crane.
(d)Incautious manoeuvring by the plaintiff in moving the beams in an interior arc towards the crane.
(e)Continued movement by the second defendant at a time when the plaintiff was moving the beams on an exterior arc away from the crane and whilst their swaying motion caused risk to the plaintiff.
The following matters are either clearly established or not in dispute:
(a) Contact occurred some 15 metres inside the entrance.
(b) The second defendant was unaware that he had run over the plaintiff until after the event.
(c) The cabin of the crane afforded good forward and lateral visibility.
(d) The load was neither tied to the crane or manoeuvred with a lead rope or tag line.(e)Some handling of the beams was necessary to compensate for inertia, the turning and uphill motions of the crane.
(f)The slings and chains would have permitted a swaying motion of the beams.
(g) The plaintiff had hold of a beam either at or immediately before impact.
(h)The footing end of the longest beam was on the left-hand side of the crane following the accident.
The cause of the injury was the contact between the front wheel of the crane and the plaintiff's foot. That occurred because the second defendant failed to see the plaintiff and continued to drive the crane at a time when the plaintiff was in close proximity to the crane. The plaintiff was in close proximity to the crane because he continued to attempt to control the swaying beams.
Negligence of the first defendant
In his amended statement of claim the plaintiff pleads 26 breaches of duty, 2 breaches of statutory duty and 24 breaches of the Australian Standard Code AS1470 1986. The essence of those particulars is failure to ensure a safe system of work and work place safety, and failure to properly instruct the plaintiff and the second defendant in how to go about the task.
Even accepting that some of the allegations are made out on the evidence, there remains the necessity for the plaintiff to establish a nexus between the claimed breaches of duty and the cause of the accident. It is difficult, applying the test stated in Wyong Shire Council v Shirt (1980) 146 CLR 40, to see how the first defendant could have done more than rely on the skill and expertise of the third defendant. The first defendant was not engaged in the work of demolition or the transportation of steel beams. No identifiable response to the circumstances immediately giving rise to the injury can be seen from the evidence. The same conclusion is reached even if the plaintiff was partly responsible for the accident. The first defendant employed the plaintiff because he was a skilled rigger and dogman. The duty to provide a safe system of work does not extend to a form of supervision which required a manager or overseer employed by the first defendant to be present at the time of supervision. As Underwood J observed in Ford v Forestry Tasmania (No 2) B29/1996 at 7:
"I find that having regard to the plaintiff's skill and experience, a reasonable employer would not have responded to the risk of injury by providing an air track drill rig. The reasonable employer would have relied on his employee not to drill in a manner or in a place that exposed him to the risk of injury. The plaintiff, by reason of his experience and competence, was the person best situated to assess the risks associated with the positioning of the drill. Unfortunately, the plaintiff suffered a grievous injury when he was doing something that he had done many times before without incident, but outside the provisions of the Workers Rehabilitation and Compensation Act the defendant is not the plaintiff's insurer against all accidents. This was a 'lifting accident.' They are very common. There is always a risk of injury using a jackhammer, but the plaintiff's experience and competence was such that the reasonable employer would not have done anything other than that done by the defendant in response to that risk.
It is true that the duty of care the defendant owed the plaintiff required the defendant to 'have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task'. Per curiam in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873. See also Turner v The State of South Australia (1982) 56 ALJR 839 at 842; McLean v Tedman & Anor (1983 - 1984) 155 CLR 306. However, these cases are not authority for the proposition that in the case of an employee as experienced as the plaintiff, the employer has to stand over him on a simple job to make sure that he does not place his drill in a position that is likely to cause him injury. See O'Connor v Commissioner for Government Transport (1958 - 1959) [sic] 100 CLR 225 at 229."
In reality, the plaintiff relies on the doctrine of vicarious liability in holding the first defendant accountable for the injury.
The rationale for an employer's liability in tort is its control over an employee's conditions of work. That control extends to the provision of safe tools, a safe place and system of work and by extension of the principles of common employment, a duty to employ competent fellow employees. Whilst it is said that the duty is not delegable, the liability arises for the negligence of an independent contractor in failing to adopt a safe system of work. In Kondis v State Transport Authority (1984) 154 CLR 672, the High Court upheld an appeal by an employee who had been injured during the operation of a crane operated by an independent contractor on the ground that the employee had been instructed to stand under the jib of the crane. However, the finding of fact had been that the dropping of a metal rod had been deliberate, as part of the method of extension of the jib and that the appellant had been instructed to stand underneath the jib. Mason J having reviewed earlier cases, stated at 687 - 688:
"The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.
That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. Indeed, there is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor."
However, Mason J concluded at 688 - 689:
"Even if I had not concluded that the respondent was liable for the default of the independent contractor in failing to prescribe and adopt a safe system on the footing that the duty to provide a safe system was non-delegable, I should have concluded that the respondent was in breach of its duty on the ground that the appellant's foreman failed to direct him not to be under the jib of the crane during the extension procedure. Although the primary judge found that the appellant was acting under the control of Clissold [employee of third party], Clissold's control of the appellant was not such as to exclude the giving of directions to the appellant by his foreman. The respondent was making its employees available to assist Clissold in extending the crane. In that operation Clissold was giving instructions to the appellant, but the giving of these instructions did not relieve the respondent through its foreman of taking reasonable steps to protect the appellant from injury and to that end of prescribing and insisting on a safe system of work. It was not a case in which the employer had placed his employee under the control of a third party in circumstances in which the employer ceased to have any power or opportunity to give directions as to the manner in which the work in question was to be undertaken.
The employer's duty at common law to take reasonable care for the safety of his employee extends to giving him directions in the performance of his work where directions might reasonably be thought to be required to secure him from danger of injury (O'Connor v Commissioner for Government Transport (1954) 100 CLR 225, at p 229). The giving of such directions remained within the ordinary prerogative of the respondent despite the engagement of the independent contractor (Jones v Tivoli Collieries Pty Ltd and Noyes Bros Pty Ltd (1966) QdR 140, at p 148)."
Murphy J preferred an approach based on economic utility which, in turn, is a reflection of the unresolved debate as to whether the fundamental basis of tort is compensatory or punitive (see Perre v Apand Pty Ltd (1999) 198 CLR 180 and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241). Brennan J having referred to the general rule stated in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41, continued at 692:
"A defendant is not vicariously liable for a tortious act done by a workman who is not his servant if the defendant has no authority to control the doing of the act and does not directly authorize it. It makes no difference that the tortious act is done in performing work for the defendant's benefit. Prima facie, the workman's employer is vicariously liable for the tortious act, but if he is able to transfer and transfers authority to control the doing of the act to the defendant, the defendant is liable. It has been said that the nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of liability from the employer to the defendant: see McDonald v The Commonwealth (1946) 46 SR (NSW) 129, at p 132; Karuppan Bhoomidas v Port of Singapore Authority (1978) 1 WLR 189. Where the defendant's vicarious liability depends upon his authority to control the doing of the tortious act that must be so, for he could have no such authority if it has not been transferred to him by the employer. But it does not follow that a defendant, lacking the relevant authority, can never be vicariously liable: liability can arise from a direct authorization of the tortious act. If I prevail upon the driver of a taxi to drive dangerously, I cannot escape liability for the consequences by pointing to the general employment of the driver by the owner of the taxi. In some circumstances, a defendant may also be vicariously liable for a negligent act or omission done or made by the driver of a crane who is not his servant and who has not been directly authorized to do the act or make the omission."
He did not regard the employer as being vicariously liable, but found a direct breach of duty. Deane and Dawson JJ agreed with the reasoning of Mason J, with Deane J stating at 694:
"The obligation of an employer to provide a safe system and conditions of work for an employee is not discharged by mere delegation to an independent contractor any more than it is discharged by mere delegation to an employee. It 'is one of those' cases in which a person 'remains liable to third parties for the consequences of the negligence of an independent contractor, just as he would be if it were his own negligence or that of his servant' (per Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at p 95). The employer 'may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed but he cannot thereby relieve himself from liability to those injured by the failure to perform it' (ibid, quoting Lord Blackburn, in Dalton v Angus (1881) 6 App Cas 740, at p 829). The reason is that, in the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer's duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear."
The first defendant did not exercise control over the manner in which the second defendant operated the crane. It could not determine the interrelationship between the plaintiff and the second defendant in any allocation of duties or response to a particular circumstance. It was entitled to rely on the expertise of the plaintiff (O'Connor v Commissioner for Government Transport and Ford v Forestry Tasmania (No 2), supra), and could not be expected to foresee the risk of injury by reason of system (Abalos v Australian Postal Commission (1990) 171 CLR 167), nor did it exercise control over the equipment or methodology to be used by the second and third defendants.
It follows that the plaintiff has not made out a case in negligence as against the first defendant. Even if that conclusion be incorrect, and negligence on the part of the plaintiff gives rise to vicarious liability, the end result is the same. Given the negligence of the second defendant, a consequence would be that the first defendant would be entitled to an indemnity (Payne v Laver Pty Ltd [2000] TASSC 96), as notices of contribution had been given.
The claim against the first defendant ought not succeed.
Negligence of second and third defendants
The third defendant remains liable for the negligence of the second defendant. Irrespective of the differences between the evidence of the plaintiff and the second defendant, it is clear that the second defendant was negligent. The second defendant was the operator and had control over the methodology to be used. Even accepting that the plaintiff chose not to use a tag line or manoeuvred the beam through an internal arc, it is clear that in these matters the second defendant shares, at least, a degree of responsibility. Primarily, he was responsible for the movement of the crane and under a duty to keep the plaintiff in sight or to stop the crane if he was unsure as to the plaintiff's position. Particulars (a), (h), (i), (k), (n) and (o) of par13 of the statement of claim are made out.
Contributory negligence
At trial the first defendant adopted the evidence of the plaintiff as its own. The second and third defendants pleaded contributory negligence and much of the difference between the parties was concerned with this issue. The defendants pleaded that the plaintiff had contributed to the cause of the injury in that he:
"(a)As an experienced Dogman failed to insist that the load was connected to a tail rope to steady the load and to enable the plaintiff to stand at a safe distance from the crane;
(b)Walked too close of the wheels of the crane;
(c)Failed to keep a proper look out;
(d)Failed to adequately control the load whilst it was being moved such that he then had to walk near the wheels of the crane;
(e)Failed to insist that the crane stop immediately on the load beginning to move.
(f)failed to attach the steel beams to the front to (sic) the crane prior to transporting the beams.
(g)re-positioning the steel beams while the crane was moving.
(h)placed his body between the steel beams and the crane when the steel beams were being transported.
(i)placed his body in close proximity to the crane wheels while the steels beams were being transported.
(j)moving the end of the load being held by him towards the front of the moving crane at the time when the load had become unstable."
While much of the evidence given by the respective parties was in accord, there were three areas in which there were significant differences. They were:
(a)the speed of the crane as it came through the entrance and whether its motion had caused a dangerous movement of the beams;
(b)the movement of the plaintiff from the time of entry to the moment of impact;
(c)the availability and desirability of the use of tag lines or lead ropes.
It is necessary to resolve these differences before any assessment of contributory negligence can be made. There is no basis for assuming, on this issue, that the competing versions were a result of dishonesty. Rather, they can be explained by reason of accuracy of recollection and the process of reconstruction.
The plaintiff made no concessions in his evidence that he could have been responsible for the accident in any way. He did not accept that any significant decision-making came within his scope of responsibility. He blamed the first defendant for failure to issue safety instructions in relation to the transportation of the load whilst maintaining his expertise in relation to the question of the use of tag lines. In some respects, his evidence was inconsistent, especially in relation to his claim that he could see the crane mount the kerb while he was handling the beams and his claimed observations in respect of the increased speed of the crane. At another stage of his evidence, he claimed that he knew nothing of the arrival of the crane until the second defendant arrived, yet he also stated that he was aware that a crane would be needed and believed that it would be used to assist in the demolition of a structure. That evidence accords with the fact that he had been referred to the first defendant by an employee of the third defendant. Yet at another stage when giving evidence of the failure of the first defendant to provide adequate instructions, he claimed that he had never been told about the crane until it arrived. His explanation as to why he had kept hold of the swaying load, namely, that to do otherwise would have been to risk the safety of the driver, ignored the distance of the beams from the cabin even if they were end on and swaying. On the other hand, the second defendant made concessions as to his own conduct. The problem with his account is that his description of the movement of the plaintiff and the beams as the load went through the entrance is predicated on his assertion that the plaintiff had been on the left side of the crane as it moved along Hale Street. However, on two earlier occasions (14 November and 12 December 1996), he had signed statements which described the position of the plaintiff as having been on the right side of the crane.
The plea is that of contributory negligence and the second or third defendants bear the onus of establishing its existence. When a particular fact or occurrence is not established to the requisite degree, the plaintiff is entitled to a finding in his favour.
Speed
The plaintiff sought to persuade the Court in support of his claim of negligence that a sudden increase of speed as the crane came over the kerb caused a dangerous movement in the load. The Court prefers the evidence of the second defendant. The crane was being operated in its lowest gear and whilst acceleration might affect power, it did not impact on speed. The crane had come to a stop and required articulation to straighten its line of approach to the entrance. The presence of a parked vehicle to the right of the entrance precluded an approach close to the kerb. The differing accounts given by the plaintiff as to how he was aware of the increase in speed are inconsistent and unconvincing. Further, the point of impact was some 20 metres from the kerb and any speed would have altered between the two points. The swaying of the load occurred through natural movement or inertia, caused by the terrain and the slight gradient before the entrance. The finding is that there was no increase of speed or sudden movement caused by contact with the kerb.
Movement
Both accounts are confusing. The description given by the second defendant that the plaintiff moved the beams on an interior arc closer to and across the front of the crane is attractive, but predicated on the plaintiff having been on the left side of the crane until shortly before impact. Insofar as such a finding impacts on the issue of contributory negligence, the Court is not satisfied that this version has been established. The second defendant was quite sure that the plaintiff had kept hold of the "non-footing" end of the beam at all times. The plaintiff had hold of the non-footing end at the point of impact, which was to the right front of the crane. The position of the beams after impact suggests that the natural or unhindered position of the beams was that the footing end was to the left of the crane. In his statement made to an officer of the Workplace Standards Authority on 9 December 1996, the second defendant stated:
"We entered the entrance next door, the steel was being steady (sic) by Ewen who was standing to the right of the crane near the right side wheel."
That account was repeated in a later statement of 12 December made to a loss assessor, when he said:
"We drove out of the first gate with Ewan walking along with the load to steady it. He was walking on the right hand side up (sic) the crane and as we went along Austral Place he held the beams sideways on to the crane. Whilst I turned right into the gate travelling a speed less than walking pace, Ewan swung the load so that the beams were end on to the crane to enable them to pass through the gate. Once we were through and about 10 metres inside the yard with Ewan walking in front of the crane and slightly to the right, he was in the process of swinging the load back to sideways on.
The next thing I knew he was laying on the ground at right angles to the right front wheel."
These versions, given at a time when events were fresh in the mind, is preferred to the evidence given at trial, namely, that the plaintiff was to the left of the crane and brought the load in an inner arc to the right side of the crane as it travelled through the entrance.
The finding is that the plaintiff was at all times holding the "non-footing" end of the beam and was to the right front of the crane. As the crane went through the entrance he manoeuvred the beams so that the left or footing end of the beam traversed towards the cabin and he moved further ahead with the right hand of the beam. Once the crane had travelled through the entrance the plaintiff, with his back to the crane, brought his end of the beams back towards the cabin either by walking backwards or remaining stationary allowing the forward movement of the crane to straighten the line of the load. He either misjudged the distance from the crane or stumbled in his backward movement. On either finding, his body was closer to the crane than the beam and he moved into the path of the wheel. He is in part responsible for the accident.
Tag line
The plaintiff claimed that no tag lines were available, that no suggestion was made by the second defendant that they be used and that in any event, they were neither required or suitable for the particular operation. I accept the evidence of the second defendant that tag lines had been used earlier during the course of demolition and they were kept in a tool box fixed to the crane. The plaintiff was positive that there were no tag lines in the tool box, yet on his evidence he had no reason to look for them since he had no intention of using them. The evidence of the second defendant is supported by Clive Davies, the manager of the third defendant, who stated that such tag lines were part of the normal equipment kept with the crane. It is certain that a grinder had come with the crane, since the plaintiff used it to sever the bolts holding the uprights. That suggests the presence of a range of equipment in the crane. In any event, the premises of the third defendant was nearby and the tag lines could have been obtained in a matter of minutes. The contention of the plaintiff that in any event the use of tag lines would have been ineffective is rejected. His explanation that tag lines were only used if it was windy, the space confined or carried above head height, is contrary to the opinion and experience of Davies and the second defendant. His explanation that it was unsafe to fix the load because it would have permitted the beam to have struck the crane is not accepted. Had a tag line been used, the plaintiff would not have been as close to the crane as he was and would not have had his body between the wheel and the beams. He accepted no degree of responsibility, yet acknowledged that he was an experienced dogman and had certain identifiable obligations. It was within his discretion to use a tag line or refuse to continue with the transportation until one was affixed. The second defendant thought it strange that one was not used, but did not say anything since he believed any decision remained with the dogman. It is relevant to this issue that the plaintiff and the second defendant had previously worked as operator and dogman. The failure to use a tag line does not absolve the second defendant of responsibility, but given that the two men worked as a team, some portion of responsibility ought be attributed to the plaintiff. Particulars (a), (c), (h) and (i) have been made out.
It is difficult to determine the percentage of contributory negligence by reference to other cases (Murfet v AAPC Australia Pty Ltd, carrying on business as Novotel Launceston [1999] TASSC 6, Wright J at par11) and any assessment depends on logic and commonsense (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, Mason CJ at 518 - 519). In this case the second defendant was effectively in charge of the operation and controlled the machinery. He ought be held primarily responsible. However, the plaintiff had placed himself at risk. The assessment is 20 per cent.
Consistent with the principles stated by the High Court in cases such as Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 and Liftronic Pty Limited v Unver (2001) 75 ALJR 867, the amount of degree of contributory negligence is 20 per cent.
Damages
The wheel impacted on the plaintiff's right heel and drove the foot end on into the ground causing severe injury. He was admitted to hospital on 14 November 1996, and an operation involving reduction and fixation of fractured toes performed on that date. Consideration was given to amputation, but upon review on 18 November it was decided that more conservative treatment ought be employed. The foot was placed in plaster and the plaintiff discharged on 28 November. On 8 January 1997, he was readmitted to hospital and the plaster removed. Following intensive physiotherapy, a further operation to remove wiring and fix a bone graft was performed. The plaintiff, who continued to receive physiotherapy, remained in plaster and dependant on crutches until April 1998. He remains on medication, attends his general practitioner once a month, and is referred to a specialist when necessary.
The injury is complex because of the position of the foot when it was run over. The Court accepts that the plaintiff has suffered a great degree of pain and discomfort and that his life has been significantly changed as a result of the accident. His mobility has been reduced to a minimum and he has been prevented from enjoying outdoor activities. His sleep is impaired and he has suffered from depressive episodes. Despite the hopes of the treating surgeon that the operation performed in January 1998 would have produced improvement, subsequent assessments have shown that such did not occur. In the opinion of the treating psychiatrist, the plaintiff suffers from moderate to severe adjustment disorder caused by events rather than biochemical imbalance. It is likely that he will continue to experience difficulty. His condition has affected a personal relationship. The sum of $45,000 will be awarded as general damages.
Past loss
The plaintiff was employed by the first defendant at a wage of $22 per hour. However, the employment was to be for a short period only and the agreed sum took into account other terms and conditions associated with long term employment. It would be more realistic to average out his earnings over a number of years preceding the accident and to make some allowance for inflation and increased return. The plaintiff's records show that his average annual taxable income during the period 1993 - 1997 was $26,504. His income for the year 1996 - 1997 was $29,070. His claim, based on the first defendant's remuneration for the period 13 November 1996 until 13 June 2001, was for the sum of $117,301 less tax paid of $23,443.25, making a total amount paid of $401 per week net. On the basis of these payments the plaintiff claims a shortfall of $285 per week and for the period of 234 weeks claiming a net return of $66,690. I regard that figure as unrealistic and prefer the second option advanced on behalf of the plaintiff and not seriously contested by the defendant, that an appropriate return for the period would have been $445 per week. The shortfall on the basis of this calculation has been $44 per week and this figure will be accepted. The calculations for the period 13 November 1996 until 13 October 2001, namely, 256 weeks, produces a figure of $11,264, and this sum will be allowed.
Future medical and special expenses
The plaintiff sees his general practitioner on a monthly basis at a cost of $32 per visit. He continues to take Panadeine or Panamax and although he claims that he will continue to take them at the present rate, it is more likely that the frequency will decrease. His claim for $7.84 per week will be reduced to $5. An allowance of $2 per week for special shoes, innersoles, walking sticks and the like will be allowed. Accepting a life expectancy of 26 years, the appropriate calculation, allowing for 15 per cent contingency is $15.22 per week.
$15 x 638 = $9,570
A contingency of 15 per cent is appropriate producing the amount of $8,134.
Future loss
The plaintiff was born on 10 February 1952, and claims that he is entitled to compensation on the basis that he would have worked until the age of 65. He has had limited schooling with only the basic skills of reading, writing and mathematics. Upon leaving school at the age of 15 he worked in an abattoir for some 13 years, but his current medical condition precludes him from returning to that area of work. Since then he has worked in the building industry obtaining his qualifications as a dogman in 1986 and a rigger in 1989. It is clear that on all of the medical evidence he could not return to the construction industry. He has lost much of his balance, suffers pain, cannot climb or bear weight. The Court accepts that his physical and psychological conditions preclude his capacity to work as a taxi driver. In 1998, as part of a rehabilitation process, he attempted to obtain a crane driver's ticket, but was unsuccessful. In December of that year he underwent a test with Elliott Bros in the use of a forklift vehicle. He claimed that he was unable to work for more than 10 - 15 minutes. He says that he is required to elevate his leg for some 2 - 3 hours over an 8 hour period and can manage to drive a motor vehicle for only 45 minutes. The Court accepts that the plaintiff would have attempted to work for financial reasons until he was 65. However, the plaintiff exaggerated to some degree his incapacity to perform any form of work and does not believe that he properly explored his capacity to work as a forklift driver. Counsel for the plaintiff has suggested that the Court apply a 15 per cent contingency factor in all matters and that percentage will be used for the assessment of future loss in order to take into account the possibility of future gainful employment. The calculation of past loss of earnings has been made until October 2001 and the plaintiff will turn 50 in February 2002. Future loss will be calculated on the basis of 15 years, a calculation which takes into account the prospect of some degree of early retirement. The appropriate calculation is:
$445 x 492 = $218,940
Contingency 85 per cent = $186,099.
Superannuation
The same approach will be taken with the claim for superannuation for the period November 1996 until the date of retirement. Since there has been no need to adjust the rate of loss of past earnings, a period of 20 years is the appropriate period for calculation. The figures of calculation have been agreed and applying a contingency factor of 15 per cent, the figure arrived at is $25,346.
Summary
General damages $ 45,000
Past economic loss $ 11,264
Future medical and special expenses $ 8,134
Superannuation $ 25,346
Future economic loss $186,099
$275,843
Conclusion
Payments of $160,424.63 have been made by the first defendant as workers compensation up until 31 May 2001. My calculation for past economic loss has been made up until 13 October 2001. It might be necessary for the parties to make further calculations given the time elapsed between trial and judgment. Given the existence of the notices of indemnity and the assessment of contributory negligence of 20 per cent, the parties will be afforded the opportunity to make further calculations and, if necessary, submissions, before any motion for judgment is made.
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