Burgiel v Barminco Investments Pty Ltd
[2009] WADC 145
•16 SEPTEMBER 2009
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : SCHOOMBEE DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : FRANCISZY JEZY BURGIEL |
Plaintiff
AND
BARMINCO INVESTMENTS PTY LTD
(ACN 009 411 349)
Defendant
Catchwords:
Tort-Employer's duty to provide safe system of work and appropriate tools - Breach of duty of care - Contributory negligence - Assessment of damages - Loss of past earning capacity - Plaintiff channelling income through company - Whether deductions made in company's statement of profit and loss to be added back to reflect truce income - Loss of future earning capacity - Whether percentage reduction for retained earning capacity should be made where no evidence of availability of suitable employment or likely income
Legislation:
Nil
[2009] WADC 145
Result:
Judgement for the plaintiff in the sum of $1,847,771
Representation:
Counsel:
| Plaintiff | : | Mr B Nugawella |
| Defendant | : | Mr D Clyne |
Solicitors:
| Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| Defendant | : | TBA |
Case(s) referred to in judgment(s):
Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bowen v Tutte [1990] Aust Torts Reports 68,079 (81 – 043) at 68, 086
Chappel v Hart (1998) 195 CLR 232
Commissioner for Railways v Halley (1978) 20 ALR 409
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Conley v Minehan [1999] NSWCA 432
Cullen v Trappell (1980) 146 CLR 1
Fitzpatrick v Job t/as Jobs Engineering (2007) 14 ANZ Ins Cas 61-731
George v Erikson (1998) 27 MVR 323
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hughes v Lord Advocate [1963] AC 837
Husher v Husher (1999) 197 CLR 138
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
Kondis v State Transport Authority (1984) 154 CLR 672
Kschammer v R W Piper and Sons Pty Ltd [2003] WASCA 298
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mastaglia v Burns [2006] WASCA 190
McLean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
New South Wales v Moss (2000) 54 NSWLR 536
[2009] WADC 145
Paff v Speed (1961) 105 CLR 549
Rosenberg v Percival (2001) 205 CLR 434
Setton v Eves [2006] WASCA 3
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317
Thomas v O'Shea [1989] Aust Tort Reports 68,694 ( 80 – 251)
Vairy v Wyong Shire Council (2005) 223 CLR 422
Ward v Newalls Insulation Co Ltd [1998] 2 All ER 690
Water Board v Moustakas (1988) 180 CLR 491
Wyong Shire Council v Shirt (1980) 146 CLR 40
[2009] WADC 145
SCHOOMBEE DCJ
SCHOOMBEE DCJ: The plaintiff was a mechanical fitter who had been hired by the defendant and assigned to work in its mechanical workshop on a mine site near Wiluna, in Western Australia. During the night shift on 1 December 2003 the plaintiff was the leading hand and assisted three mechanical fitters to take the differential out from the front section of a Toro 50D truck. In order to free the differential the fitters had to remove the whole front oscillating cradle and axle with the differential fixed on top. When the plaintiff tried to dislodge the rear pivot pin which connected the oscillating cradle to the chassis or frame of the truck, the cradle with the differential on top, weighing approximately 4.2 tonnes, collapsed onto the plaintiff's right foot and lower left leg.
2 The plaintiff and his co-workers had experienced difficulty in
dislodging the two pivot pins connecting the oscillating cradle at the front and at the rear of the cradle to the chassis of the truck. None of the fitters assigned to the job nor the plaintiff had ever removed the differential from a Toro 50D truck before. The two pins appeared to be stuck and the plaintiff hit the rear pivot pin with a small hammer in order to get it to move millimetres. At the time that the plaintiff hit the pivot pin with the hammer the oscillating cradle with the differential on top was not supported from underneath or from above by way of slings on a hoist.
3 The plaintiff thought that the rear pin protruded into the chassis by at
least 25 millimetres so that pushing it out by a few millimetres would not dislodge the whole support structure of the oscillating cradle. In fact the rear pin did not protrude into the chassis at all, but connected the oscillating cradle to the chassis by way of 14 bolts which were inserted from the other side of the chassis and through the large head of the pivot pin. There was only a 5 millimetre wide lip or step in the centre of the outer surface of the large head of the pin, much smaller in diameter than the head, which fitted into a recess in the chassis. The function of this step was to get the pin head correctly into position so that the bolt holes could be aligned and the bolts affixed. Once the 14 bolts and a two-piece flange behind the large head of the pin had been removed this 5 millimetre step was the only thing that held the pivot pin in place and connected the oscillating cradle to the chassis. The removal of the two-piece flange behind the large head of the pin meant that the whole pin could be moved in the direction of the cradle. Hammering the pin a distance of 5 millimetres allowed the pin to slip out of the chassis and the whole oscillating cradle to fall to the ground.
[2009] WADC 145
SCHOOMBEE DCJ
4 The plaintiff was unaware of the connecting mechanism of the pivot
pin and thought that the pin had a step of at least 25 millimetres. At the time of hammering the pin the plaintiff was sitting on a movable trolley under the truck with his feet reaching under the oscillating cradle. Fortunately for the plaintiff the oscillating cradle had large bolts protruding underneath it (which bolts affixed the differential to the oscillating cradle) and these bolts prevented the plaintiff's feet from being totally crushed under the oscillating cradle.
The plaintiff's evidence of the accident
5 The plaintiff was an experienced mechanical fitter and had worked as
a leading hand and as a mechanical supervisor in previous employment positions. At the time of the accident he was an independent contractor on the books of Byers Labour Hire, a labour hire company. Byers Labour Hire had provided the plaintiff's services to the defendant. The defendant supplied loading and hauling services to Newmont Mines at its mine site near Wiluna and ran a workshop nearby. The plaintiff operated by way of a company, Mine Site Services and Maintenance Pty Ltd, as this provided certain tax and superannuation advantages. The plaintiff's company was paid weekly by Byers Labour Hire.
6 The plaintiff started to work at the Wiluna mine site from about July
2002 as a mechanical fitter and worked underground for approximately 70 per cent of the time. The remainder was spent working in the workshop. A few weeks prior to the accident the plaintiff was asked to be the leading hand in the workshop from time to time when employees of the defendant who usually occupied that position were unavailable.
7 The plaintiff gave evidence that on the night of the accident he
arrived for his shift at 6 pm and was provided by Mr James Wilkinson, the leading hand during the day shift, with a hand written sheet containing a list of items to be completed that night, including the removal of the front differential from the Toro 50D truck. The plaintiff said that the foreman from the day shift, Mr Geoff Stanton, had not partaken in the handover of the tasks. Later that night the plaintiff was told by the mine shift boss, who he only knew as Louis, that the removal of the differential was not urgent as there was no operator available for that truck for the next day shift. However, the plaintiff still considered that he had been told to complete the job overnight and therefore proceeded to try and complete it.
8 The defendant's workshop was only approximately 50m x 8m in size,
but was open towards a concrete apron at the front on which work was also completed. It was not possible to move the Toro 50D inside the
[2009] WADC 145
SCHOOMBEE DCJ
workshop together with a forklift and integrated tool carrier ("ITC") on either side because of the lack of space. The Toro 50D was therefore partially reversed into the workshop with the front of the truck resting on the concrete apron. The three mechanical fitters assigned by the plaintiff to the job on the Toro 50D used the bucket of a front end loader to lift the front of the truck's machine and then inserted four CAT stands under the chassis of the truck. The fitters removed the wheels and positioned the tines of a forklift under the final drive (wheel rim) of the oscillating cradle on the one side and the tines of an ITC under the other in order to support the oscillating cradle once it was disconnected from the chassis of the truck. The workers next removed the 14 bolts from the head of the front and rear pivot pins, but struggled to dislodge both the front and rear pin even though the bolts had been taken out. They asked the plaintiff for assistance.
9 The plaintiff went to look for the manual of the Toro 50D in the
office near the workshop. The manual had a number of diagrams of the front assembly, including one showing the pivot pin in place and one with the pivot pin removed. The plaintiff did not find the diagrams easy to interpret. The plaintiff said that he understood that the pin had a step but it was not clear from the diagrams how wide the step was. He thought that it was at least 25 millimetres and that this was the distance by which the pin was inserted into the chassis. Asked to indicate what he thought the step was on the drawing in the manual, the plaintiff coloured in a part which was explained by the experts called to be the large head of the pin.
10 Mr Chew, the engineering expert called for the plaintiff said that the
drawings were not easy to understand and that the brevity of the description of how to remove the front differential meant that the manual was not suitable for a person who had not been instructed on or was not well experienced in carrying out that task. Mr Simms, the engineering expert for the defendant, on the other hand, was of the view that the diagrams in the manual were not difficult to follow by a qualified and experienced mechanical fitter. However, Mr Simms' evidence was given on the assumption that the plaintiff had removed the front axle assembly of a Toro 50D on three previous occasions, which turned out not to have been the case.
11 Both experts agreed that the manual contained an incorrect
description of the parts of the front assembly which may have confused the plaintiff. On the first diagram which shows the pivot pin in place, the pivot pin and flange are correctly labelled. However, on the diagrams which show the pivot pin disconnected from the chassis, the pivot pin has
[2009] WADC 145
SCHOOMBEE DCJ
been labelled as the flange. Both experts stated in their respective reports that they could see the possibility of a fitter misinterpreting the manual as a result of the mislabelling.
12 The fact that the plaintiff misunderstood the instructions in the
manual on how to remove the front axle assembly is also borne out by the plaintiff's attempt to knock the rear pin out first from one side and then from the other. If the plaintiff had understood the diagram it would have been clear to him that the pin could only be disconnected from the chassis by knocking it from the chassis side and inwards, making the pin and head move into the space created by the removal of the two-piece flange. Mr Simms noted in his report that the plaintiff did not seem to understand in which direction the pivot pins could be driven or which pin should be removed first. Mr Simms explained that the rear pivot pin needs to be removed first and that this allows the whole oscillating cradle to be moved backwards which disengages the front pin from the chassis. The plaintiff tried to dislodge the front pivot pin prior to trying to remove the rear pin.
13 The manual also listed eight basic "preparatory steps" for the
disassembly of the oscillating cradle. Relevantly these steps included the need to support the front frame with a jack and/or wedges and to support the weight of the oscillating cradle with a hoist or hydraulic jack. The front frame or chassis was supported by CAT stands, but the plaintiff said that the workshop did not have an overhead hoist or crane to support the weight of the oscillating cradle by way of slings attached to the final drives of the cradle. The plaintiff asked his co-workers to get a jack to place it under the oscillating cradle, but the only available hydraulic jack was broken. The plaintiff then requested one of the fitters to look for blocks of wood which could be used to support the cradle. At least six to eight blocks would have been required on each side because they were only approximately 150 millimetres thick and the distance from the cradle to the floor was between 700 and 800 millimetres. The fitters could only locate three blocks of wood, which were not in a good condition as they were cracked and chips of wood had fallen out.
14 As there was no other equipment with which to support the weight of
the cradle the workers had to rely on using the forklift and the ITC to support the final drives of the oscillating cradle on either side. The plaintiff explained that this was not ideal as this equipment was not designed to carry out a supporting function and the pressure exerted by the forklift or ITC could not be regulated as well as by the use of a hydraulic jack. The plaintiff was asked why he did not advise the mechanical fitters to use the forklift and ITC with the tines in an elevated
[2009] WADC 145
SCHOOMBEE DCJ
position and with chains or slings hanging from the tines and supporting the final drives of the oscillating cradle. The plaintiff explained that it would be unsafe to hang chains or slings from the tines of a forklift without a custom made attachment being used. Such an attachment was like a metal box that fitted over the tines and had an extended arm from which the chain or sling would drop down. Most importantly, the metal box had a safety chain which connected to the forklift or the ITC. Although chains and slings were available in the workshop, there was no attachment supplied.
15 Another method to support the oscillating cradle would have been to
use the mobile crane on site together with a spreader bar from which the slings supporting the final drives could have been suspended. However, it appeared that none of the fitters on shift had a licence to drive the mobile crane. The plaintiff also said that there was no spreader bar available at the workshop.
16 After he had consulted the manual the plaintiff asked the other
workers to move the forklift and ITC away from the truck. This was because he thought that the upward pressure exerted by the tines might jam the pivot pin and also because the lighting outside the workshop was so bad that he could not see properly underneath the Toro 50D. The workshop was illuminated by 12 large industrial lights, but the outside area above the concrete apron had only three lights which provided poor lighting. The plaintiff went to look for a fluorescent light on a lead in the storeroom but found only two broken ones. There were no dolphin lamps available at the workshop either.
17 The plaintiff was asked why he did not request one of the workers to
fetch a cap lamp from the mine boss' office which was approximately 4½ kilometres from the defendant's workshop or why he did not call for an electrician to fix the fluorescent light on a lead. The plaintiff answered that he thought it unlikely that the electrician who was normally at the mine itself would have been prepared to come and fix the fluorescent light. He said that the work that electricians did on mine sites was prioritised and that there were likely to have been some more pressing jobs at the mine at that time.
18 Further, the plaintiff thought that the removal of the forklift and the
ITC was only a temporary measure to enable him to see whether the rear pin would move at all with some tapping. He was of the understanding that he could move the pin safely a few millimetres and intended to put the forklift and ITC back in position before the pin was knocked out
[2009] WADC 145
SCHOOMBEE DCJ
further. He did not realise that there was only a 5 millimetres step protruding into the chassis and that if he moved the pin 5 millimetres the whole oscillating cradle would come falling down. The plaintiff said that he also relied on the fact that the oscillating cradle would still have been kept in position by the front pivot pin.
19 Having removed the forklift and the ITC, the plaintiff tapped the
front pivot pin with a gimpy hammer (a small fat hammer) from the back to the front to see whether it would move slightly. The pin was solid. The plaintiff again consulted the manual and asked the workers to move the forklift and ITC back under the final drives to support the oscillating cradle. He tried to apply more upward pressure this time and again knocked the front pin from the rear to the front. The pin remained stuck. (The reason was that the plaintiff was hammering the step of the pin into the chassis rather than hammering the pin out.)
20 The plaintiff then asked the workers to again remove the forklift and
ITC and turned his attention to the rear pivot pin. The plaintiff tried to hammer the rear pin from the front to the rear. The rear pin was also solid (again because the plaintiff hammered it in the wrong direction). The plaintiff asked one of the fitters, Gary Knowles, to stand beside the oscillating cradle, look at the front of the pin and tell him if he could see any movement of the pin while he tapped the rear pin from the rear to the front. The plaintiff sat on a moveable trolley so that he could access the rear side of the cradle and the rear pin. That end of the rear pin was situated in a metal recess of approximately 120 millimetres in length and the plaintiff had to use the hammer with a metal punch in order to reach the rear of the pin. The plaintiff could not see inside the recess whether the pin was moving. He hit the pin solidly four times, but did not slam it. The first two times it sounded like metal on metal and as if there was no movement. The second two hits felt different. The plaintiff said that Mr Knowles told him that he could see no movement, but after the fourth hit the whole oscillating cradle suddenly dislodged and fell onto the lower part of the plaintiff's legs. The plaintiff said that in hindsight he was of the view that the trolley might have moved forward and thus positioned his feet under the oscillating cradle.
21 There was panic as the other workers tried to lift the cradle off the
plaintiff's legs by using the ITC. However, the metal rims of the final drives which were supported by the tines started to roll off the tines. Before the plaintiff could be pulled out or scramble out of his position under the oscillating cradle, it rolled back onto his legs.
[2009] WADC 145
SCHOOMBEE DCJ
22 The plaintiff said that he had employed what he thought was the best
method of taking out the differential given the available tools and lighting. He stated that he had not been provided with any instructions regarding the method to be employed and that no Job Safety Analysis ("JSA") had been performed in respect of the task allocated to his team. The plaintiff said that he had never seen a JSA being performed at the defendant's workshop. Dr Chew explained that a JSA should be performed in respect of every reasonably complicated job and should identify the hazards involved, the risk of injury, the steps that should be taken to prevent the injury and provide a step by step procedure of carrying out the task. The plaintiff stated that JSAs had been used routinely in the other employment positions where he had worked.
23 The plaintiff further gave evidence that the tools at the defendant's
workshop were generally old and in need of replacement. There was no overhead hoist or crane with a spreader bar, no working hydraulic jack, not enough wooden beams and no fluorescent lights in working condition. The plaintiff said that he had on previous occasions asked the foreman, Mr Peter Collins, for better tools such as rattle guns, large sockets and strong-armed bars, but these requests had never been met. The plaintiff had also requested a hydraulic or air jack for lifting large machines, but was told to use the bucket of a front end loader. The plaintiff did not regard this as a safe procedure as there were no check valves in the hydraulic system of a loader. If a hose blew, the bucket could drop immediately. However, he was told to use this method by the foreman.
24 The plaintiff said that if he had complained about not having the
correct equipment to do a job, he would have been told by the foreman to improvise. He did what he could do, with what he had, to the best of his ability. The plaintiff stated that in hindsight he and the other fitters should not have done any work on the Toro 50D that night as they had not been provided with a safe method of lifting the machine.
25 The plaintiff gave evidence that he had never removed a differential
on a Toro 50D before. Had he done so before he would have been aware of the very small width of the step on the pin. The plaintiff also emphasised that if he had known that the step on the pin was only 5 millimetres wide he would never have sat with his feet under the oscillating cradle.
Mr Peter Collins
| 26 | Mr Collins worked for the defendant as a foreman from April 2002 until December 2003. Between June and December 2003 he did not work |
[2009] WADC 145
SCHOOMBEE DCJ
at the workshop in Wiluna but at another mine site serviced by the defendant. Mr Collins said that in the 26 years that he had worked in the mining industry he had never had to remove the front differential of a Toro 50D. He had removed the rear differential of a Toro 50D, but access to the front differential was entirely different.
27 Mr Collins gave evidence that there was not a lot of tooling available
at the defendant's workshop near Wiluna and that the workers had to make their own tooling. He had asked for a number of different tools over the period of time that he had acted as foreman. However, when he made a request to Mr Graeme Le Brun, the project manager who was responsible for the workshop personnel and tools, he would refer him to the manager of the plant department, Mr Doug Ovens, who was responsible for maintenance and parts for the trucks. Mr Ovens would refer Mr Collins back to the project department.
28 Mr Collins said that he made entries in his diary to record certain
requests. On 11 May 2003 his diary showed that he rang Mr Clayton Jones, who was the alternate project manager to Mr Le Brun, told him that there were no jacks on site and requested a hydraulic 50 ton jack. Mr Jones advised him to use the bucket of the loader to lift the trucks. Although Mr Collins told him that this was against work procedures as determined in a recent audit of the workshop, Mr Jones told him it would be in order to use the loader.
29 Mr Collins explained that the lighting on the outside of the workshop
was very poor. He had asked Mr Le Brun on a number of occasions for better lighting, but had always received a negative answer. Mr Collins took a photograph of the outside lighting in May 2003 "to cover myself if something went wrong". Mr Collins said that he never performed any lifting of machines at night time because the lighting was so poor.
30 Another entry in Mr Collins' diary referred to a meeting in April
2003 between Mr Collins and Mr Le Brun during which the use of inexperienced personnel and the lack of training was discussed. In spite of this no training for the workers was organised. Another diary entry in June 2003 related to Mr Collins expressing his concern about employees being elevated in a loader bucket in order to place explosives into a wall face.
31 Mr Collins explained that he could only remember one or two JSAs
that were done during the whole time that he was employed with the defendant. There was no requirement for JSAs to be completed in respect
[2009] WADC 145
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of the jobs undertaken at the workshop. Mr Collins said that any existing JSAs were kept at the safety department which was at the main office, about 1½ kilometres from the workshop. A JSA could be used a number of times and any worker using it was meant to sign it to indicate that it had been used for a particular job.
32 Mr Collins said that the only alternative light source was fluorescent
lights on a lead, but they were often out of operation and had to be fixed by an electrician. The electricians worked underground and it was very hard to get them to do anything for the workshop. Mr Collins said that "it was like we were aliens to come and help us". Mr Collins also doubted that there would have been an electrician available on night shift.
Mr Mark Lambert
33 Mr Mark Lambert is now an underground mine maintenance
supervisor with Argyle Diamonds. He was one of the mechanical fitters employed with the defendant who were on duty at the workshop on the night of the accident. He did not see the accident occurring, as at that time he was in the electrical workshop approximately 20 to 30 metres from the Toro 50D truck talking to the electrician.
34 Mr Lambert confirmed that the defendant's workshop was lacking in
infrastructure, tools and equipment in comparison to other mine sites where he had worked. There was no overhead crane, no jacking equipment and a general lack of hand tools. Mr Lambert said that he had repeatedly requested an overhead crane and better tools from the foreman, Mr Collins, but with no result. Mr Lambert confirmed that the lighting outside was fairly poor and that there were no operational fluorescent lights. He saw one of the workers attending to the Toro 50D on the night of the accident using a torch, but said that the light from a torch may not have been good enough.
Mr Kent Banks-Smith
35 Mr Banks-Smith also gave evidence on behalf of the plaintiff. He
has been a heavy duty mechanical fitter for 28 years and was one of the fitters working on the Toro 50D truck. Mr Banks-Smith described how he and the other two fitters had tried for a couple of hours to remove the differential and to get the pins to move. He said that he had never removed a front differential of a Toro 50D before and he also thought that the pin was protruding by 2 - 3 inches into the chassis. Mr Banks-Smith stated that they did not expect the pivot pin to come out so suddenly and the cradle to fall. He gave evidence that Mr Knowles had said that the pin
[2009] WADC 145
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was moving, but before he could finish saying it, the cradle was already
coming down.36 Mr Banks-Smith confirmed that the fluorescent lights on leads had
broken tubes and that the electrician was likely to have been underground. When Mr Banks-Smith was told that Mr Lambert's recollection was that he had been talking to the electrician when the accident happened, Mr Banks-Smith said that he did not know that the electrician had been in the electrical workshop. Mr Banks-Smith agreed that cap lamps were available at the mine office, but said that the workshop fitters were not supposed to use them.
37 Mr Banks-Smith also observed that the tools at the defendant's
workshop were run down and not maintained. He said that he had asked Mr Stanton and another foreman at tool box meetings for better hand tools, jacks and proper stands. The CAT stands used by the workers were worn and no longer height adjustable.
38 After the cradle had fallen on the plaintiff's legs Mr Banks-Smith
tried to lift the cradle with the forklift. However, the forklift was unable
to lift the weight of the cradle.
Mr James Wilkinson
39 Mr Wilkinson was a leading hand with the defendant in December
2003 and had trained as a light mechanical fitter. He said that he had done the handover with the plaintiff and provided him with the handover sheet setting out the tasks for the nightshift. He was of the view that there was sufficient equipment at the workshop to remove the front assembly from the Toro 50D truck, although he had not removed a differential on this specific truck before.
The defendant's witnesses on liability
40 Mr Geoff Stanton gave evidence on behalf of the defendant. He was
the workshop foreman at the time, filling in for Mr Stan Hornsby who was away for a few days. Mr Stanton said that he spoke to the plaintiff and Mr James Wilkinson regarding the jobs to be done, although Mr Wilkinson had completed the sheet listing the tasks. Mrs Stanton stated that he only expected the fitters to take the wheels off the Toro 50D truck and place the machine on CAT stands. He did not expect them to get any further than that in light of the other jobs on the list. However, he took the manual off the shelves in the office and left it open on the
[2009] WADC 145
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workbench in the workshop at the page describing the disassembly of the
oscillating cradle.41 Mr Stanton said that he did not give any other instructions to the
plaintiff or the other fitters as he thought that the plaintiff had worked with him on the removal of the front assembly of a Toro 50D truck before. Mr Stanton stated that he had removed the differential on three Toro 50D trucks some months prior to the accident, as the differentials were giving problems. Mr Stanton admitted that the plaintiff may have only operated one of the forklifts during this procedure, although he thought that the plaintiff had also handed him a tool while he was under the truck.
42 Mr Stanton admitted that no JSA had been preformed in respect of
the removal of the front differential from a Toro 50D truck. He said that it only became practice at the workshop after the accident to perform JSAs. Mr Stanton was of the view that cap lamps would have been available in the workshop or otherwise in the miner's change-room. He agreed that the fluorescent lead lights were often broken, but said that an electrician could have been summonsed to fix them. If the electrician refused to do so, the plaintiff could have asked the shift boss.
43 Mr Stanton was aged 27 when the accident occurred and had only
been working as a foreman for approximately six months. He was very defensive in giving evidence, at some stage remonstrating with the plaintiff who was quietly sitting behind his solicitor. It seems that Mr Stanton felt some responsibility for the accident saying that it had also affected him badly.
44 Another witness for the defendant was Mr Harold Mason who has
been a leading hand fitter with the defendant for some seven years. He said that he had removed the front differential from a Toro 50D truck at the Wiluna workshop before. He explained that he had done so by either using a crane with slings or a forklift and an ITC on either side. He agreed that no spreader bar was available at the workshop prior to the plaintiff's accident. If he needed one to use with the crane, he borrowed it from the client, Newmont mines, and fetched it from the mine site. Mr Mason said that he had never removed the front assembly of a Toro 50D at night.
45 Mr Scott George is employed with the defendant as an underground
fitter. He was one of the fitters working on the removal of the front assembly on the night of the accident. At that time he had only been at the Wiluna site for three months and this was his first job on a mine site.
[2009] WADC 145
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Mr George confirmed that they looked for blocks of wood to support the cradle on that night but could only find a couple. He stated that he heard Mr Knowles say that it looked like the pin was moving and then heard one more tap before the cradle came down. He recounted that it all happened very quickly. He agreed that the plaintiff had only been tapping the pin lightly.
46 Mr George said that he could not remember what lighting was
available but he recalled a flood light on a stand. One of the photographs taken shortly after the accident shows a flood light on a stand next to the Toro 50D truck, but there was no evidence as to whether this light was operational and whether it shed any light under the truck.
47 Another witness who gave evidence for the defendant was Mr Paul
Fisher who was a maintenance supervisor with the defendant until recently. He had been employed with the defendant for 12½ years. Asked what the level of tooling was like at the Wiluna workshop, Mr Fisher said that the level of tooling compared to today's standard was not as "flash" as it should be. However, he said there was always available material to make your own tools. In those days the workers would make their own tools such as supports, stands and hooks, but you were not allowed to do this anymore today. Mr Fisher said that at the time of the accident they could have done with more tooling but they improvised with what they had. Mr Fisher said that the lighting under the trucks was not good even in daytime and that they used cap lamps a lot. He thought that there were cap lamps and a charging unit in the workshop.
48 Lastly Mr Douglas Ovens and Mr Graeme Le Brun gave evidence.
Both are still employed with the defendant. At the time of the accident Mr Ovens was the maintenance coordinator. He worked at the head office and said that he did not deal with the replacement or maintenance of tools in the workshop unless it involved a major item.
49 Mr Le Brun was the site manager for the defendant at the Wiluna
mine. He said to his knowledge there were slings and a spreader bar available at the workshop at the time of the accident. There was also a small crane that could have been used but no one on shift had a licence to operate the crane. Mr Le Brun said that if any tooling was required the foreman would place an order and such a request was generally not rejected. He only monitored the purchase of large items of approximately $50,000. However, that evidence is not consistent with what Mr Collins experienced and Mr Collins' diary entries substantiate his evidence.
[2009] WADC 145
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The expert witnesses on liability
50 Dr Chew was called on behalf of the plaintiff. Dr Chew is a
chartered professional engineer of the Institute of Engineers Australia and has practiced as a consultant mechanical engineer since 1982. Dr Chew commented on the brevity of the description of the front axle removal procedure in the manual. He noted that the manual did not identify the points at which the cradle should be supported with a hoist or hydraulic jack. He also pointed out that the only instruction regarding the removal of the pivot pin, apart from the diagrams, was the statement: "Push the side pin (see 7) all the way into the cradle cross-beam". Dr Chew further noted that on two of the diagrams the pin was labelled as being the flange.
51 Dr Chew had interviewed the plaintiff and referred in his report to
the fact that the plaintiff had made the assumption that the rear pivot pin protruded a considerable distance into the cradle. Dr Chew was not specifically asked in evidence whether he was of the view that this was a reasonable assumption given the brief description of the front assembly removal procedure in the manual and the incorrect labelling of the pin. However, in general terms Dr Chew was of the view that the manual was not a suitable reference document for a person who had not been instructed or trained, or had limited experience in removing the front axle assembly.
52 On the other hand, Dr Chew was of the opinion that it was
fundamental practice not to put your body under an unsupported heavy load and that it was dangerous and unsafe to do so. However, he said that if a risk assessment of the task had been performed and step-by-step instructions and adequate equipment had been provided, the plaintiff would not have had to resort to supporting the front axle assembly with the forklift and the ITC.
53 Dr Chew was of the view that the following workshop setup and
equipment were required in order to safely remove the front axle assembly
of the Toro 50D truck:
1.
A workshop which could accommodate the entire length of the truck;
2.
Adequate lighting in the workshop, either fixed or portable, so that all parts of the truck could be properly illuminated;
3.
A pit which allowed a worker to stand under the truck, away from the cradle while pushing out the rear pivot pin;
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4. An overhead or mobile crane with slings affixed to a spreader bar to support the weight of the cradle;
5. If no crane was available, two forklifts fitted with the appropriate lifting accessories and slings in order to support the two ends of the oscillating cradle;
6. Hydraulic jacks or height adjustable mechanical stands and wooden blocks to provide additional support under the cradle until it was ready to be lowered to the ground.
54 Dr Chew explained that an appropriate system of work would have
required, apart from adequate equipment, a clear step-by-step written procedure, including diagrams and photographs of the front axle components, to be provided to the workers together with an appropriate risk assessment of the task. This could have been done by way of a JSA. An appropriate system of work would also have included general employee training on health and safety by, for example, having regular crew safety meetings or regular training on occupational health and safety practices. In addition, a proper system of work would have required adequate supervision.
55 Mr Martin Simms gave evidence on behalf of the defendant.
Mr Simms has been a consulting engineer for 20 years. He did not interview the plaintiff prior to providing his reports, although he had inspected a Toro 50D truck. During his evidence it turned out that this was not the truck on which the plaintiff had worked on the night of the accident.
56 Mr Simms agreed that the manual may have been misleading
because it described the pin as the flange in some of its diagrams. However, Mr Simms was of the view that a qualified and experienced mechanic would have had no difficulty in appreciating how the cradle was supported and that hammering the pin would ultimately cause the cradle to drop. In Mr Simms' opinion it was therefore highly risky to place one's legs under a heavy item that would be dislodged at some point, particularly if one did not know exactly when. Mr Simms likened it to a person sitting on a branch of a tree and sawing it off on the trunk side believing that he could jump off the branch before he had sawed too far.
57 Mr Simms was not specifically asked whether the plaintiff's
misunderstanding that the step was wider than approximately 5 millimetres was reasonable on the basis of the information contained in the manual. He agreed that it would not be possible for a fitter to say from looking at the diagrams in the manual whether the step was less than
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25 millimetres in width. However, Mr Simms expressed the opinion that if a fitter had seen the actual parts and looked at the diagrams it would be possible to tell that the step was less than 25 millimetres in width.
58 Mr Simms' reports were based on the assumption that the plaintiff
had previously removed the front axle assembly from a Toro 50D truck. It was established in evidence that this was not the case and the defendant accepted this. However, it was not put to Mr Simms whether his opinions expressed in his reports would have still been the same if he had known that the plaintiff had not previously removed a front assembly from a Toro 50D truck.
59 Mr Simms explained that the diagrams in the manual had to be read
on the basis that the cross-hatching going in one direction indicated one part of the assembly, ie the chassis, and the cross-hatching going in the other direction indicated the other part, ie the pin and its large head. However, even with that explanation being provided it is in my view easy to overlook that there is a miniscule step which is approximately 1 millimetre wide on the diagrams. This step is particularly difficult to see on those diagrams which show the pin connected to the chassis. The plaintiff clearly did not understand that this 1 millimetre protrusion was the step. He thought that the step was what is in fact the head of the pin on the diagrams.
60 Apart from stating that it was highly dangerous to place one's body
parts under a heavy item that would disengage at some stage, Mr Simms was also of the view that it was standard practice to use florescent lights on a lead while working under a truck and that they should have been used if they were available.
61 Mr Simms agreed with Dr Chew that the use of the tines on a forklift
and an ITC to support the final drives of the oscillating cradle was inappropriate because there could be a sudden loss of hydraulic power or a failure of the chain on the forklift or the oscillating cradle could roll off the tines once the pins had been removed and the cradle was lowered. Mr Simms explained that the cradle would not have rolled off the tines immediately after the pins were removed, as it would balance itself at that point provided that the forklift and the ITC were each capable of bearing the load. The risk of the cradle rolling off the tines only arose as the cradle was lowered.
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62 Mr Simms also agreed with Dr Chew that the oscillating cradle
should have been supported from underneath with a heavy duty jack or timber blocks to prevent the cradle falling more than a few centimetres. Mr Simms was of the view that slings attached to the forklift and the ITC to support the final drives would have been a relatively safe procedure provided that stands or blocks were in place under the cradle. Mr Simms said in his report that he would be very surprised if a mine site workshop did not have suitable jacks and blocks. Mr Simms also agreed with Dr Chew that it was a serious oversight that a JSA or other planning procedure was not put in place.
Mr Simms based his reports on the following assumptions which were not brought out by the evidence:
1. That the plaintiff had removed a front assembly from a Toro 50D truck before his accident;
2. That the plaintiff knew that the job was not urgent as the
replacement part had not yet arrived;
3. That the plaintiff understood that only bolts were holding the pivot pin to the chassis;
4. That the plaintiff consulted the manual, but was frustrated and tired at the time;
5. That lead lights, hydraulic jacks and blocks were available.
64 The fact that Mr Simms was not asked to what extent his evidence as
set out in his reports still stands given that these assumptions were incorrect, makes it difficult to assess the weight to be given to his evidence. However, I accept that Mr Simms' view is essentially that it is dangerous and risky to places one's body parts under a heavy piece of machinery if one knows that that piece of machinery will be dislodged at some point while one is working on it.
65 It was also not explored with either expert whether the plaintiff could
have been sitting crouched under the truck in order to hammer the rear pin forwards without allowing his feet protrude under the cradle. Mr Simms merely said in evidence that the plaintiff would have to be underneath the vehicle.
Findings of fact
66 I accept the plaintiff's evidence in its totality. The plaintiff impressed
as a witness who was prepared to recount what he could remember without trying to avoid contentious issues and without embellishment.
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He was forthright in his answers and at the same time tried to be careful to state the facts correctly.
67 There were some inconsistencies between the plaintiff's evidence and
that of the foreman, Mr Geoff Stanton, but they are not of any great importance. In so far as necessary, I prefer the evidence of the plaintiff where his evidence diverged from that of Mr Stanton. In my view it does not really matter whether Mr Stanton spoke to the plaintiff at the handover and whether he or the plaintiff took the manual off the shelves in the office, as Mr Stanton agreed that he did not provide the plaintiff with any instructions other than those contained in the manual.
68 The issue of whether the plaintiff should have supported the
oscillating cradle by placing slings under the final drives and suspended the slings from the tines of the forklift and the ITC and whether the suitable attachment was available is also not of great relevance, because if the plaintiff had adopted that method the forklift and ITC would still have blocked the light from reaching underneath the truck. This method was proscribed for the task of removing the front assembly from a Toro 50D truck in a JSA prepared by the defendant after the accident.
69 In my view it is also not of great importance whether Mr Knowles
said that the pin was moving just prior to the plaintiff giving the last tap or whether he did not say this. If he did, the plaintiff may not have heard him and it was not put to the plaintiff that despite having heard Mr Knowles call out that the pin was moving he nevertheless gave the pivot pin another tap. Mr Banks-Smith said that it all happened very fast and it is therefore likely that Mr Knowles called out almost simultaneously with the plaintiff giving the last tap.
70 Of more importance is the question whether adequate lighting was
available to be used under the truck. I accept the evidence of the plaintiff, Mr Collins, Mr Lambert and Mr Banks-Smith in this regard, namely that the lighting on the apron was very poor and that on the day of the accident the fluorescent lead lights were all broken. I also accept the evidence that if the fitters wanted to use cap lamps they would have had to fetch them from the mine boss's office approximately 4½ kilometres away. Although Mr Fisher said that there were cap lamps available at the workshop, he was not there on the night of the accident, and it seems unlikely that if cap lamps were generally available at the workshop, the fitters would not have collected some of those when they went to look for the fluorescent lights and found that they were broken.
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71 I also accept the evidence of the plaintiff and his witnesses who said
that it would have been difficult to persuade an electrician to come up from the mine and fix the fluorescent lights. Mr Lambert said that he did not see the accident because he was speaking to the electrician at the workshop at the time. However, whether the electrician was available to fix the fluorescent lights on that particular night and whether the plaintiff and the other fitters knew about this was not explored in evidence. It may have been the case that the electrician was at the workshop by chance and that the plaintiff did not know about this.
72 I further accept the plaintiff's evidence as well as that of Mr Collins,
Mr Lambert and Mr Banks-Smith that there was a culture of "making do" with what was available at the workshop and that requests for better tooling and equipment had been refused in the past. The diary entries made by Mr Collins clearly indicate this.
Defendant's breach of its duty of care
73 An employer has a non-delegable duty to take reasonable care for the
safety of its employees at work: Kondis v State Transport Authority (1984) 154 CLR 672 at 687 - 688. The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at [34]. The duty also includes taking steps to avoid foreseeable risks of injury that arise from the employee's own inadvertence, misjudgement or negligence: McLean v Tedman (1984) 155 CLR 306 at 311 – 312 and Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33 at [19].
74 The defendant was not the plaintiff's employer, but hired the
plaintiff's services from Byers Labour Hire. However, counsel for the defendant accepted that the defendant owed the same duty of care to the plaintiff as an employer owes its employee. The plaintiff gave evidence that he had to work specified hours on each shift and that day and night shifts were assigned to him by the defendant. He also received his instructions of what to do from the foreman employed by the defendant or the leading hand. The evidence established that the defendant provided a system of work where instructions regarding the jobs to be done were issued by the defendant's foreman, or the leading hand, to the plaintiff. The defendant also provided the workshop and the tools, other than small hand tools of which each fitter seemed to have his own set.
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75 It is generally accepted that a person or an entity which provides a
system of work, instructions and supervision to an independent contractor owes the same duty of care in that regard as an employer: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31, 45 and 53 and Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 at [136]. I therefore proceed on the basis that the defendant owed the same duty of care to the plaintiff as an employer owes its employees.
76 The standard of care to be applied by the employer in taking
reasonable care for the safety of its employees is assessed by applying the formula established in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. The failure to eliminate a risk that is reasonably foreseeable and preventable does not necessarily mean that the employer breached its duty of care. The essential question is whether the employer failed to take reasonable steps to guard against the foreseeable risk: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at [98] – [99] and Aerospace Engineering Services Pty Ltd v Ibrahim (supra) at [20]. It is not necessary that the employer foresee the precise risk of injury or the manner in which the injury may occur as long as the injury falls in a class of risk that in a general way the employer should have foreseen: Hughes v Lord Advocate [1963] AC 837 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [87].
77 In my view the risk of a fitter being injured while removing the front
axle assembly of a Toro 50D truck without having been given any instructions other than the provision of the manufacturer's manual and with the only available support structures being a forklift and an ITC was foreseeable. It is not necessary that the defendant must have foreseen that the plaintiff might ask for the forklift and ITC to be removed in order to get sufficient light under the truck or that he might allow his feet to protrude under the unsupported oscillating cradle, but even if that was a requirement, this would in my view have been foreseeable. Any risk which is not far fetched or fanciful is foreseeable. The test of foreseeability has often been identified as undemanding: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [54] and Vairy v Wyong Shire Council (2005) 223 CLR 422 at [213].
78 In assessing whether the defendant took reasonable steps to prevent
or minimise the risk the formula established in Wyong Shire Council v Shirt (supra) calls for a consideration of the magnitude of the risk, the degree of the probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
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79 The magnitude of the risk of a worker being injured should the front
axle assembly fall on a body part of the worker was clearly great. The degree of probability of it occurring in circumstances where the plaintiff was given no instructions on how to perform the job other than making available to him the manufacturer's manual and where no JSA was preformed was also high. It was further highly likely that if appropriate tools such as portable fluorescent lights were not readily to hand the plaintiff, like most employees, would make do with what there was rather than go out of his way to try and obtain the appropriate equipment. The fact that there was a culture of "making do" at the defendant's workshop contributed to the likelihood that the plaintiff would employ an inappropriate method in order to make do with what was available and at hand rather than go out of his way to obtain the appropriate equipment. The same applies with regard to the possibility of summoning an electrician to fix the broken fluorescent lights.
80 As regards the reasonable steps that the defendant should have taken,
I accept Dr Chew's evidence of the workshop set-up and equipment that was required in order to safely remove the front axle assembly of the Toro 50D truck. I further agree that a clear step-by-step written procedure, including diagrams should have been provided to the plaintiff by way of a JSA.
81 The issue of the costs associated with providing a safe system of
work was not raised in evidence or in counsel's submissions. However, if it was not reasonable on the basis of the high costs to provide a workshop which could accommodate the entire length of the truck with a pit and a forklift and ITC standing on either side of the truck, then at the very least the defendant had a duty to make sure that there was appropriate lighting from above and suitable portable lighting and that this was properly maintained at all times. In my view it is not reasonable to expect fitters to drive 4½ kilometres to look for cap lights at the mine boss's office or to ask an electrician to leave his assigned jobs at the mine and travel to the workshop to fix the fluorescent lights.
82 A mobile crane was apparently available at the workshop, but the
defendant failed to ensure that at one of the fitters assigned to the removal of the front assembly had a crane driver's licence. The costs of providing a spreader bar or the appropriate attachment to allow slings to be suspended from the tines of the forklift and ITC was not canvassed, but is not likely to be of any great import. Preparing a JSA and readily understood diagrams is also not likely to involve any substantial costs.
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I accordingly find that the defendant breached its duty to provide suitable equipment and a safe system of work by failing to:
1.
Provide adequate lighting from above over the area where the removal of the front axle assembly was to take place;
2.
Provide suitable portable lighting at the workshop and ensure that this was properly maintained;
3.
Provide a pit which allowed the plaintiff to stand behind the rear end of the rear pin without having to cram himself into a position where some of his body parts might extend under the cradle;
4. Provide a spreader bar to be used with the mobile crane and slings; 5. Ensure that one of the fitters on duty had a crane driver's licence; 6.
Alternatively, if it was not feasible to use the mobile crane, to provide the appropriate attachment so that slings could be suspended from the tines of the forklift and the ITC;
7.
Provide hydraulic jacks, height adjustable mechanical stands or sufficient wooden blocks to provide support under the cradle until it was to be lowered to the ground;
8.
Prepare a JSA or provide a step-by-step written procedure to the plaintiff together with easy to follow diagrams on how to remove the front axle assembly;
9.
Provide adequate supervision for the particular task in light of the fact that none of the fitters on duty had done this before.
Causation
84 In tort the question whether the requisite causal connection exists
between a particular breach of duty and particular loss or injury is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6 and March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 and 522 – 523.
85 Where the breach of duty consists of an omission the plaintiff has to
prove what would probably have eventuated had the defendant's negligence not occurred. The test is a subjective test assessing what the particular plaintiff would have done if the defendant had taken reasonable steps to prevent the risk which occurred: Chappel v Hart (1998) 195 CLR 232 and Rosenberg v Percival (2001) 205 CLR 434 at [24]. A court may infer causation by reference to objective facts and probabilities:
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Rosenberg v Percival (supra) at [44]. Generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that injury would have occurred even if the duty had been performed, it will be taken that the breach of duty caused or materially contributed to the injury: Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 421 - 422.
86 The plaintiff carries the legal onus of proving causation, but once the
plaintiff has proven that the defendant breached a duty of care and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of cause or connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no cause or connection exists: Chappell v Hart (supra) at [34] and Fitzpatrick v Job t/as Jobs Engineering (2007) 14 ANZ Ins Cas 61-731 at [227].
87 There is little doubt that the defendant's failure to provide and
maintain suitable portable lighting was causative of the plaintiff's injury. If the fluorescent lights had been in a working condition the plaintiff would in all probability not have asked the other workers to remove the forklift and the ITC. The plaintiff clearly said in evidence that he did so temporarily so that he could see underneath the truck. The defendant's failure to provide a working hydraulic jack or a sufficient number of suitable wooden blocks to support the cradle from underneath until it was ready to be lowered also contributed to the plaintiff's injury. If the cradle had been supported in that manner it would not have fallen on the plaintiff's feet when the cradle unexpectedly disengaged from the chassis. The plaintiff instructed the fitters to look for a hydraulic jack and wooden blocks and it is clear that he would have used this equipment if it had been available.
88 A third causative factor was the failure by the defendant to provide a
step-by-step written procedure for the removal of the front differential with diagrams that could be readily understood. If this had occurred it would have been clear to the plaintiff that the step did not protrude by 25 millimetres into the chassis, but that there was virtually no protrusion, only a 5 millimetre step to allow the head of the pin to be properly aligned. As the plaintiff said in evidence, if he had known that the step only consisted of a 5 millimetre rim, he would not have crawled under the truck while the cradle was unsupported. The plaintiff misunderstood the diagrams in the manual and therefore incorrectly assessed the level of the risk of tapping the pin while the cradle was unsupported. If the plaintiff had been properly instructed as to how the pivot pin was connected to the chassis he would not have proceeded in the manner that he did.
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89 As I have indicated earlier it is possible that if the plaintiff had been
provided with an appropriate attachment to suspend slings from the tines of the forklift and the ITC he would nevertheless have asked that the forklift and ITC be moved out of the way so that he could see better under the truck. The plaintiff was not asked whether he would have done so, but I am prepared to find in favour of the defendant that it is probable that he would. Accordingly, the failure to supply the appropriate attachment was not causally relevant.
90 However, in light of the fact that a mobile crane was available the
defendant should have instructed the plaintiff to use the crane with slings and a spreader bar. As a spreader bar was not available on the night of the accident, the plaintiff's failure to supply this also contributed to the plaintiff's injury as did the defendant's failure to ensure that one of the fitters on duty had a crane driver's licence.
91 The defendant's failure to provide adequate supervision was also
causative of the plaintiff's injury. If the plaintiff had been supervised it is likely that he would have been told how the pivot pin was attached to the chassis and given a safe procedure to remove it.
Contributory negligence
92 Once the plaintiff has proven that the defendant failed to take
reasonable care for the plaintiff's safety and that the failure to take certain steps causally contributed to the plaintiff's injury, the plaintiff is entitled to all his loss or damages suffered: March v E & M H Stramare Pty Ltd (supra) at 514. This is unless the plaintiff was guilty of contributory negligence in which event the liability is to be apportioned between the defendant and the plaintiff.
93 A person will be guilty of contributory negligence if he or she ought
reasonably to have foreseen that, if he or she did not act as a reasonable and prudent person, he or she would be exposed to risk of injury: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36 - 37 and Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. Where the contributory negligence of an employee is in issue in a case where his employer is sued for negligently failing to provide a safe system of work, the circumstances and conditions in which the employee had to do his work must be borne in mind. A safe system of work is one that is safe for an average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders: Sungravure Pty Ltd v Meani (supra) at 36 and Bankstown Foundry Pty Ltd v Braistina (supra) at 310. In Sungravure
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Windeyer J at 37 held that it was for the tribunal of fact to consider whether:
"…inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions … caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man."
94 In Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 577 Murphy J emphasised that the test for contributory negligence in a claim for damages by an employee against his employer was not the same as the test in negligence. Murphy J held the following in this regard:
"It would be unjust if the more an employee concentrates on his employer's task at the expense of his own safety, the more he suffers by reduction of his damages in the event of injury. The test in contributory negligence is not the same as the test in negligence. … An employee should not be held guilty of contributory negligence unless when he acted (or failed to act) this was done with full appreciation of the danger. Even then, it should not be regarded as contributory negligence if it was done to advance the employer's interest. This means that there must be an element of wilful misconduct by the employee."
95 In Commissioner for Railways v Halley (1978) 20 ALR 409 at 412 - 414 Stephen J held that the fact that it was common sense that what the employee did was highly dangerous was not enough to constitute contributory negligence. The common sense that one would ascribe to a reasonable man could readily be affected by special circumstances such as that the employee was given an unfamiliar task to do with very little in the way of advice or supervision, did not appreciate the danger of what he was doing and thought that this was expected of him. Stephen J also held that where a plaintiff did not consciously adopt a slip-shot approach to his work or disobedience to his employer's instructions but applied himself with excessive zeal in order to get on with his employer's business, a court would be very slow to find contributory negligence.
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96 Jacob J at 415 and 419 further emphasised that it was not enough in
order to prove contributory negligence to show that an employee knew or ought to have known that what he did was highly dangerous. It must also be shown that he knew or ought to have known that it was unnecessary and improper for him that he exposed himself to that danger. Murphy J came to the conclusion at 420 that it would be quite wrong that a defendant who negligently failed to instruct and warn an employee against a dangerous act should be able to rely on that act as a failure by the employee to take reasonable care for his own safety. Any failure by the employee had to be judged in the light of the employer's failure to instruct him properly.
97 There is no reason not to apply the legal principles which have been
established in relation to contributory negligence by an employee vis-a-vis the employer to the facts of this case. Although the plaintiff was an independent contractor, counsel for the defendant accepted that the defendant owed the same duty of care to the plaintiff as an employer owes its employees which includes the duty to provide a safe system of work, proper instructions and appropriate tools.
98 Counsel for the defendant relied on Fitzpatrick v Jobs Engineering (supra) in which the Court of Appeal of Western Australia found contributory negligence on behalf of an appellant who had operated a wood chipping machine and had adopted a certain work practice which had allowed his foot to become caught in the splitter knives of the machine. However, in that case the appellant had sued the manufacturer of the machine who did not owe a duty similar to the duty of an employer. Apart from providing operating instructions the manufacturer did not have any obligation to provide the appellant with a safe system of work and it was entirely up to the appellant to choose the manner in which he was working. This case therefore does not provide any guidance with regard to the issues under consideration.
99 In light of the legal principles applying to contributory negligence by
an employee vis-a-vis his employer, it is difficult to find that the plaintiff is guilty of any contributory negligence, if the circumstances under which he acted are taken into account. It could be argued that it was common sense not to adopt a position where the plaintiff's legs were protruding under the unsupported cradle and both Dr Chew and Mr Simms said that it was highly unsafe and dangerous to place one's body parts under an unsupported heavy load. However, the plaintiff laboured under a fundamental misunderstanding and that was that the pin was protruding into the chassis by some 25 millimetres. That misunderstanding was
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created by the defendant's failure to explain the connection of the pin to the chassis to the plaintiff and to warn him as part of a JSA or otherwise that knocking the pin by 5 millimetres would allow the whole cradle to come falling down. The plaintiff therefore thought that it was not dangerous to tap the pin lightly until it moved some millimetres. The plaintiff emphasised that if he had known that the step was only 5 millimetres wide he would never have placed his feet under the cradle.
100 The situation in which the plaintiff tapped the pin while sitting with
his feet protruding under the unsupported cradle was therefore caused by the lack of instructions that he had received and the failure to perform a JSA. Applying the finding by Murphy J in Commissioner for Railways v Halley (supra) it seems quite wrong that the defendant should be able to rely on the plaintiff's misunderstanding and consequent dangerous act where the misunderstanding arose from the defendant's failure to properly instruct and warn the plaintiff.
101 Further, applying the finding made by Jacobs J in Commissioner for Railways v Halley it is one thing to say that common sense would have told a reasonable man not to place any body part under an unsupported heavy load at any time, but it is another matter if that act is judged with regard to all the circumstances that applied at the time. The plaintiff tapped the pin while the cradle was unsupported because he had not been properly instructed on how to remove the front assembly and because he believed that he was assisting his employer's business by working out a method by which to get the pin to move. This was not a case where the plaintiff disobeyed instructions or adopted a slip-shot approach despite having been provided with an appropriate method. The plaintiff had not removed the front axle of a Toro 50D before, and he did the best he could by consulting the confusing manual and doing what he thought was safe to do. This was not a situation where the plaintiff had been told how the pin connected to the chassis and had been provided with instructions on how to do the job safely, but nevertheless decided to hit the pin while the cradle was unsupported and thereby unnecessarily and improperly exposed himself to danger. The plaintiff, having been provided with no instructions, believed that hitting the pin by only a few millimetres was not dangerous. In my view it cannot be said that a reasonable employee with the plaintiff's background as a mechanical fitter, left to his own devices with the manual, would not have made the same mistake.
102 It could be argued that the plaintiff's failure to obtain cap lamps from
the mine boss's office constituted a slip-shot approach to his work and that but for that omission the oscillating cradle would not have been
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unsupported while the plaintiff tapped the pin. However, the plaintiff decided to remove the forklift and the ITC temporarily because he did not think it was dangerous to tap the pin a few millimetres, and this decision was prompted by the defendant's failure to provide and maintain adequate portable lighting and by the fact that no-one had explained to him that the pin was only connected to the chassis by a 5 millimetre step.
103 As a matter of first impression the fact that the plaintiff breached a
fundamental rule, that is, to never place a body part under an unsupported heavy load, indicates contributory negligence, but a careful analysis of the circumstances that applied and caused the plaintiff's breach of this fundamental rule leads one to the conclusion that the plaintiff thought that what he was doing was expected of him by his employer and that given his misunderstanding of the connection between the pivot pin and the chassis he thought that tapping the pin lightly was not dangerous.
Accordingly, I am of the view that it is not appropriate to find the plaintiff guilty of contributory negligence.
Breach of statutory duties
105 The plaintiff relied in the alternative on the defendant's breach of a
duty under s 19 and s 22 of the Occupational Health, Safety and Welfare Act 1984 (WA) to provide and maintain a working environment in which employees and workers were not exposed to hazards (as defined in the Act) and on the defendant's breach of a duty under s 5 of the Occupiers Liability Act 1985 (WA) to take reasonable care that a person entering the premises not be injured as the result of dangers due to the state of the premises. The plaintiff provided the same particulars of negligence in support of the alternative claims as had been furnished with regard to the claim in tort. It is not necessary to deal with the alternative claims in light of the findings regarding the defendant's breach of its duty of care in tort.
Plaintiff's injuries, resultant disabilities and loss of amenities
106 As a result of the accident the plaintiff suffered life-threatening
injuries to both lower legs. The right foot was crushed to the extent that half of the foot had to be amputated while the left lower leg sustained a third degree open fracture with a gaping wound which resulted in the loss of a substantial part of muscle and skin. The plaintiff spent two months in hospital and over a period of almost four years had to undergo approximately 14 operations. The right fore-foot was amputated and a skin graft with skin taken from the plaintiff's thigh was applied to the foot.
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The fracture of the left leg was temporarily set with an external fixator and the open wound was treated with reconstruction of the soft tissue and a dorsal flap. Some four months later the dorsal flap was lifted again to allow for a bone graft to the tibia and the application of an Ilizarov external frame. This was a circular metal frame with metal spikes protruding into the plaintiff's lower leg in order to hold the bone in place. The plaintiff had to walk on crutches with the circular metal frame around his lower leg. The plaintiff said that the pins protruding into his flesh were extremely painful and that he had to live with the Ilizarov frame day and night for approximately one year. After that period it appeared that the leg had not properly healed and another bone graft operation was performed.
107 The plaintiff gave evidence that after the Ilizarov frame had been
removed he broke the same leg again and it had to be put in plaster cast for eight weeks. The bone unfortunately healed with a curvature protruding to the outside of the leg. This made the leg look severely deformed. The plaintiff said that he tried to walk with the deformed leg for a period of approximately nine months but it was too painful. A Taylor spiral frame was fixed around the plaintiff's leg which remained for approximately nine months. The plaintiff then had another operation at the end of 2006 during which a bone graft and a metal plate were inserted into the lower left leg. The last operation was in 2007 when a tendon at the back of the plaintiff's left foot was removed in order to relieve pain that he had suffered in the arch of his foot.
108 The plaintiff is now left with only half of his right foot and very
delicate skin on his stump. The skin over the stump is irregular and breaks easily if the plaintiff happens to bump the stump against a hard surface. The skin is so fragile that it has on occasion torn when the plaintiff removed his sock after it got stuck to the skin by reason of moisture. The stump is also very sensitive and knocking the stump against a hard surface produces excruciating pain. Occasionally the plaintiff feels a sharp pain in the stump for no particular reason.
109 The left lower leg has been shortened by approximately two
centimetres because of the way in which the bone has set and the plaintiff
has a very limited range of movement in his left ankle joint.110 As a result of the loss of half his right foot and the problems with his
left leg, the plaintiff suffers from balance impairment and abnormal gait. The plaintiff has difficulties climbing stairs or ladders or squatting because of the stiffness of his left ankle and cannot do any work near
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ground level unless he sits on his bottom or kneels on his left leg. The plaintiff is unable to kneel on both knees because this compromises the right stump. By reason of the lack of balance the plaintiff is unable to pick up a heavy object from ground level, to stoop down or to move at any speed. The plaintiff is further unable to walk over uneven or rough ground. Because of his lack of balance and the risk of bumping his stump, the plaintiff cannot walk barefoot anywhere and has to be very careful when walking in wet areas. He also has to avoid at any cost falling from a height as this could cause serious injury to his left leg and right stump.
111 As a result of these restrictions the plaintiff had to give up his
recreational horseback riding. The plaintiff said that he used to live on a horse property, owned two horses and would ride three or four times a week. The possibility of falling off a horse is now a risk that he can no longer afford to take. The plaintiff is also not able to take long walks like he used to do or go to the beach, as he would have to wear some foot protection and would have difficulty walking over the uneven ground. The plaintiff is unable to cycle and paddle his canoe which were further recreational activities that he enjoyed. The plaintiff also said that he used to do a lot of handyman work on his property like building pergolas, fences, paving bricks and concreting. He further enjoyed doing all of his own gardening.
112 The plaintiff is able to walk for about 20 to 40 minutes at a time, but
then needs to take a rest. He also has difficulties standing for substantial periods at a time. Because of the difference in the length of his legs the plaintiff has developed some back pain, which hopefully will be eliminated or at least subside with the appropriate shoe supports.
113 After trying many different pairs of shoes the plaintiff has now found
a Nike high ankle shoe which is suitable. The plaintiff has experimented with various fillers for his right shoe and finally found that synthetic pillow stuffing was the best. There is no dispute between the parties that the plaintiff should obtain a custom made high definition silicone partial foot prosthesis and custom made surgical insoles and footwear. The prosthesis would slip over his stump like a sock and assist with his balance and also with his gait. Mr Mitchinson, the prosthetist who gave evidence on behalf of the plaintiff, recommended that the plaintiff have custom made surgical insoles for his left foot in order to achieve equal lengths for both legs. Mr Mitchinson said that the prosthesis and insoles would allow the plaintiff to have a more functional gait and reduce the energy expenditure required for him walking with his disabilities.
179 Counsel for the defendant submitted that if the court was not
satisfied that the plaintiff could perform any of the three positions suggested by Professor Mulvey, but was of the view that the plaintiff still had some residual earning capacity, the court could nevertheless make a deduction from the weekly amount calculated for loss of future earning capacity to allow for retained earning capacity. Counsel for the defendant submitted that such deduction could be based either on the weekly average earnings as published by the Australian Bureau of Statistics or the court could deduct a percentage representing the chance of the plaintiff obtaining some employment from time to time.
180 Counsel for the plaintiff submitted that the defendant had an
evidentiary burden to show what kind of work the plaintiff was still capable of performing, the availability of such work and the likely income that the plaintiff would receive from it. As the defendant had not led any evidence of suitable occupations other than those of an estimator, supervisor of a mechanical workshop or TAFE lecturer, it was not for the Court to speculate about what other kind of work the plaintiff was still capable of doing and that the Court could not make a deduction based on the weekly average earnings or a percentage unless the Court was satisfied that the plaintiff was capable of performing one of the three occupations proposed by the defendant.
181 The plaintiff carries the onus of proving its loss of future earning
capacity and the extent to which that loss produces, or might produce, financial loss: Medlin v State Government Insurance Commission (supra) at 18 per McHugh J. In general, it is desirable for a plaintiff to call precise evidence of what he would have been likely to earn but for the injury and what he was likely to earn after the injury. However, the failure to call such evidence does not necessarily result in nominal damages: Setton v Eves [2006] WASCA 3 at [26] and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643. On the other hand, if a plaintiff calls incomplete evidence, it is difficult for him to complain of a low award for loss of future earning capacity: New South Wales v Moss (2000) 54 NSWLR 536 at [69].
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182 If a plaintiff leads evidence from which the inference may be drawn
that he has suffered a loss of future earning capacity, a defendant will bear an evidentiary onus to show the kind of work the plaintiff could still perform, the availability of such work and the likely earnings: Setton v Eves (supra) at [27]. Such an inference can be raised where the plaintiff has proven that he has lost his pre-accident earning capacity, has been unable to find alternative employment or that his condition has prevented him finding alternative employment: Thomas v O'Shea [1989] Aust Tort Reports 68,694 ( 80 – 251) at 68,701.
183 I accept that the medical evidence has indicated that the plaintiff has
lost his pre-accident earning capacity and that the plaintiff's condition to date has prevented him from finding alternative employment. The plaintiff underwent the last surgical procedure at the end of 2006 and he has not yet been fitted with a silicone prostheses or surgical insoles. There was no suggestion by the defendant that the plaintiff should have looked for employment prior to the date of the trial. I therefore accept that the defendant had an evidentiary onus, which it has discharged. However, on the basis of the evidence presented by the defendant, I am only prepared to find that there is a very small chance that the plaintiff will be able to obtain future employment as a TAFE lecturer.
184 The defendant did not lead evidence of any other kind of work that
the plaintiff may still be able to perform. However, Dr Hammersley, the occupational physician who gave evidence on behalf of the plaintiff, said that the plaintiff was still able to do light bench work as long as he could use a sit/stand stool, work in cool conditions, wear well ventilated footwear and avoid any heavy work or activities that were risky for his legs or balance. Dr Hammersley was of the view that the plaintiff could still perform jobs such as leadlight artist, picture framer or creator of small wrought-iron sculptures. No evidence was provided as to the availability of such jobs or the likely income that the plaintiff could earn from it.
185 The assessment of damages for loss of future earning capacity does
not have to involve a mathematical calculation. In fact, it is recognised that this head of damage is a type of "general damages" and that the Court has a wide discretion in assessing such damages: State of New South Wales v Moss (supra) at [70] and [87]. The income earned by the plaintiff before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (supra) at 566 per Windeyer J. The evaluation of the worth of a loss of future earning capacity is based on the principles set out in Malec v J C Hutton (supra) and involves the assessment of the plaintiff's lost chance
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to earn: State of New South Wales v Moss at [71]. In Malec v J C Hutton the majority (Deane, Gaudron and McHugh JJ) held at 643 that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above speculative to just below certain. This involves the estimation of possibilities, not proof of probabilities, and is an imprecise and indeterminate process to be carried out within very broad parameters.
186 Further, the fact that the quantum of damages for loss of future
earning capacity is difficult to assess, does not mean that the plaintiff is only entitled to a nominal sum or that no allowance should be made for an estimated retained earning capacity: State of New South Wales v Moss at [72] and Bowen v Tutte [1990] Aust Torts Reports 68,079 (81 – 043) at 68, 086.
In Bowen v Tutte (supra) Malcolm CJ (with whom Wallace and Rowland JJ agreed) said the following at 68,086:
"Where it is clear that the plaintiff has suffered a loss of earning capacity, as where there has been a total loss of capacity to earn in the occupational profession for which the plaintiff has previously been employed, the Court will do its best to place a value on that loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff's residual capacity and evidence of the amount which could be earned in such employment." (authorities omitted)
188 Counsel for the plaintiff submitted that this statement only applied
where there was an absence of evidence of the availability of a particular occupation in the labour market or of the likely earnings; it did not apply where the defendant had not presented any evidence about the kind of work that a plaintiff was still suited to do. Counsel for the plaintiff submitted that if the Court were to reject the suitability of the three occupations proposed by the defendant, the Court could not make an estimate of the plaintiff's retained earning capacity without the defendant having provided evidence of other sedentary or bench-work occupations that were suitable to the plaintiff.
189 In my view this is not a correct interpretation of the law. The overall
burden of proof remains on the plaintiff and the plaintiff cannot complain if he does not present evidence and the Court arrives at an estimated amount which takes into account a greater capacity for retained earnings than the plaintiff contemplated. This does not mean that a court can speculate about the kind of work that the plaintiff could still do or arrive
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at a particular amount that the plaintiff would still be able to earn without
evidence having being provided to that effect.190 In Bowen v Tutte the appellant's orthopaedic surgeon had given evidence that the appellant was still able to work as a receptionist, educational nurse or laboratory assistant, although she needed to avoid prolonged periods of sitting or standing (at 68, 084). Although no evidence was led regarding the availability of suitable employment positions or the level of remuneration that the appellant was likely to earn, the Court reduced the amount allowed for loss of future earning capacity by 35 per cent to reflect the appellant's residual earning capacity.
191 In George v Erikson (1998) 27 MVR 323 at 333 and 335 there was evidence that the appellant could only work under very restricted circumstances because of his mental condition which resulted from the injury. He could not drive in a car, work in enclosed spaces or deal with considerable face–to–face contact with people. There was no evidence regarding the availability of work or any likely income that the appellant could earn in such a restricted capacity. The trial judge had reduced the amount allowed for loss of future earning capacity by 50 per cent to reflect the usual contingencies as well as the appellant's residual earning capacity. Malcolm CJ with whom Ipp and Steytler JJ agreed referred to the principles in Malec v J C Hutton Pty Ltd and came to the conclusion that the possibility of the appellant being able to work was small, but it was not necessarily minimal or remote. As a result the court allowed a reduction in respect of retained earning capacity, but reduced the discount of 50 per cent to 20 per cent in order to reflect the usual contingencies and the contingency that the appellant might, from time to time, be able to find some employment.
192 The above authorities lead to the conclusion that where there is some
evidence of the kind of work that the plaintiff could still perform in the future, even though there is no evidence of the availability of suitable positions or the likely income, the Court is entitled to make an estimate of the chance that the plaintiff might be gainfully employed from time to time in the future and may deduct a percentage from the amount allowed for loss of future earning capacity in order to reflect the chance of future gainful employment.
193 If there had been no evidence by the medical experts called on behalf
of the plaintiff to show what kind of employment the plaintiff was still suited to, the submission put forward by plaintiff's counsel may have had some validity. Even though the plaintiff bears the overall burden of proof, there is something to be said for the submission by plaintiff's counsel that
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a defendant cannot focus its evidence on particular occupations during the course of the trial and then submit in closing that there are other jobs which are also suitable for the plaintiff without having led any evidence in that regard. An objection to such a submission would be based on fairness, that is, that a party cannot run a trial by relying on one point or proposition only and then rely on quite a different point or proposition in closing or on appeal: Water Board v Moustakas (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ. However, in this case the plaintiff's own medical expert had given evidence of occupations that were still suitable for the plaintiff.
194 Counsel for the plaintiff further submitted that the court should not
rely on the plaintiff's evidence that he might wish to start a business such as an ice creamery in the future. In Cullen v Trappell (1980) 146 CLR 1 at [7] the High Court stated that it was trite law that a court was not concerned with the use to which the plaintiff might put the damages awarded to him. I agree that the court should not speculate whether the plaintiff might take part of the damages awarded to him to start a business and whether this might be successful and provide an income in the future. No evidence was led to support such a manner of earning income and no damages award was proposed for such a business venture.
195 I am also not prepared to make a reduction of the amount awarded
for loss of future earning capacity by relying on the average weekly earnings as published by the Australian Bureau of Statistics. There was no evidence on the basis of which the court can assume that the plaintiff is likely to earn the average weekly earnings rate. It would also not be fair for the court to assume that the plaintiff would be able to make the average weekly earnings or any percentage thereof in the absence of any evidence as to how this average is compiled and how the plaintiff might still be able to achieve the average weekly earnings.
196 A court also has to take into account that a plaintiff with a disability
is likely to be at a disadvantage in competing for semi-sedentary positions which require no training or qualifications. Further, even if the plaintiff was successful in finding employment, such employment might be for a particular period of time only and it could be very difficult for the plaintiff to find another position which was specifically geared to his needs and involved a sympathetic employer. Dr Hammersley made the point that if the plaintiff was successful in obtaining light bench work, it would be likely to be intermittent work with prolonged periods of job-seeking.
197 On the other hand, the plaintiff did not strike me as a person who is
likely to sit at home feeling sorry for himself. Professor Zellweger and Mr Jones both gave evidence that the plaintiff was extremely motivated to
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try and normalise his lifestyle and to contribute as much as possible to his recovery. I accept that the plaintiff is likely to seek some for of employment in the future and that he may be successful to a limited extent from time to time. On the other hand, I have to keep in mind that even a motivated and committed person such as the plaintiff is in reality severely restricted in what he is able to achieve by reason of the disability suffered in the accident. In my view the only manner in which the plaintiff's residual earning capacity can be taken into account is by deducting a higher than usual percentage with regard to contingencies.
198 The discount allowed for the usual vicissitudes of life such as early
death, illness or future unemployment is in the order of 2 – 6 per cent in Western Australia: Kschammer v R W Piper and Sons Pty Ltd (supra) at [193]. In my view a total discount of 20 per cent taking into account the usual contingencies and the plaintiff's retained earning capacity is appropriate in this case. In assessing the plaintiff's retained earning capacity I have allowed for a very small chance of the plaintiff being able to obtain employment as a TAFE lecturer and also for a very small chance of the plaintiff obtaining employment as a lead-light artist, picture framer or creator of small wrought-iron sculptures. The total amount allowed for loss of future earning capacity should therefore be reduced from $754,588 to $603,670.
Loss of future superannuation
199 The plaintiff is also entitled to 9 per cent superannuation on the gross
annual salary of $123,500 over 12 years. This means that the plaintiff is entitled to 0.09 x $2,375 (weekly amount) x 450.5 (6 per cent multiplier for 12 years) = $96,294 minus 15 per cent (Jongen factor as agreed by the parties) = $81,850.
200 The 20 per cent discount allowed for general contingencies and
retained earning capacity also needs to be taken off the amount calculated for loss of future superannuation (see Setton v Eves (supra) at [44]). This means that the total amount allowed for loss of future superannuation should be $81,850 minus 20 per cent = $65,480.
Special damages
201 The parties agreed that the amount to be allowed in respect of special
damages incurred prior to the trial, including Medicare charges, should be
$166,200.10.
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Past gratuitous services
202 The parties further agreed that the plaintiff should be allowed the
amount of $39,060.00 for past gratuitous services. These included substantial assistance provided by Ms Veronique Stacey until May 2007 and thereafter by Ms Cherie Joss.
The plaintiff is also entitled to interest on the past gratuitous services at 3 per cent which amounts to $39,060 x 3% x 5.33 years = $6,246.00. The total amount allowed for past gratuitous services and interest is therefore $45,306.
Future medical, equipment and external domestic expenses
204 The parties agreed on most of the medical services and equipment
that would be required by the plaintiff in the future as well as their costs. I have set out the agreed items in the schedule below. There were other items to which the defence did not agree and insofar as I have allowed them I have included them in the schedule, but underlined them for easy identification.
205 The plaintiff claimed the costs of an electric shop-rider buggy and its
maintenance as Mr Jones, the occupational therapist who gave evidence on behalf of the plaintiff, was of the view that because of the plaintiff's restriction regarding prolonged walking it was probable that in old age the plaintiff would require an electric shop-rider buggy to get around for shopping purposes. Mr Jones was also of the opinion that the plaintiff should be entitled to a recliner transfer assist chair as this would help him to control oedema in his stump as he became older. However, neither Dr Home nor Dr Hammersley supported the need for these two pieces of equipment. Dr Hammersley was of the view that the plaintiff was not the sort of person who would make use of an electric shop-rider buggy and that it was better for the plaintiff to remain mobile and not become reliant on a recliner transfer assist chair. Dr Hammersley also thought that simple methods of elevation would suffice to control oedema in the right foot. Dr Hammersley further stated in his report that the plaintiff could drive an automatic vehicle without any problems and that there was no need for allowing the costs of transposition of the brake pedal. I have therefore made no allowance for these three items.
206 Dr Hammersley was of the view that a sit/stand stool which rolled on
castors, but allowed the castors to be locked was reasonable so that the plaintiff could limit the amount of time that he had to stand while performing household duties. Dr Home did not deal with the sit/stand
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stool, although he expressed the view that it would beneficial for the plaintiff to undertake basic domestic activities from a standing posture. However, it seems reasonable to me that the plaintiff should be provided with a sit/stand stool as the plaintiff does have difficulty standing for long periods.
207 The plaintiff claimed $15 per week for future medications. None of
the experts gave evidence with regard to the costs of such medication. The plaintiff said that he was still taking Nurofen from time to time and required approximately one packet of 24 per week at a cost of about $12. He also stated that he needed other products to care for his stump and that the total cost was about $15 per week. The plaintiff was not cross- examined in this regard. Accordingly, it seems reasonable to allow $15 per week for medications and treatment products for the right foot.
208 The plaintiff claimed the future costs of gardening and external
maintenance at the rate of $45 per hour for two hours per month. This was based on Mr Jones' opinion that the plaintiff was precluded from cleaning windows, gutters, painting above ground level or below knee level and pruning trees. The defendant agreed to that allowance but objected to the plaintiff's claim for 50 per cent of a further $96 per week for external home maintenance. Counsel for the plaintiff explained that the additional amount was based on the plaintiff's evidence that he had been a keen handyman in the past. Counsel for the plaintiff submitted that the plaintiff was likely to have performed at least five hours maintenance per week if not for the accident, but the plaintiff was prepared to reduce that amount by 50 per cent because he might have required assistance in any event with age. I am not prepared to make any allowance other than the two hours per month at $45 per hour for gardening and external maintenance. The plaintiff did not put a time frame on the performance of handyman jobs that he had attended to prior to his accident and none of the expert witnesses said that more than two hours per month on a regular basis was required.
209 I have, however, allowed the $7,200 once off costs to renovate the
back patio area of the plaintiff's house to allow him appropriate access to
his backyard. The defence agreed to this one off payment.
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Future Medical, Equipment and External Domestic Expenses
| Item | Cost | Replacement | $Weekly |
| Medical Expenses | |||
| General Practitioner Reviews | $50 | 2 months | 5.77 |
| Medical Specialist Reviews | $250 | 6 months | 9.62 |
| Medication | 15.0 | ||
| Silicon Prosthesis | $12,500 | 2 years | 120.19 |
| Prosthetist Reviews | $160 | 6 months | 6.15 |
| Surgical Insoles | $400 | 1 year | 7.69 |
| Hypafix tape | 4.90 | ||
| Equipment | |||
| Sit Stand Stool | $437 | 10 years | 0.84 |
| Nike High Ankle Footwear 2 | $400 | 1 year | 7.69 |
| pairs per annum @ $200.00/pair | |||
| Shower Transfer Bench | $405 | 10 years | 0.78 |
| Long Handled Pick Up Stick | $35 | 5 years | 0.13 |
| Shower Rail $98.00 ea plus Installation $25.00 | |||
| Toilet Rail $40.00 plus | $65 | Once off | N/A |
| Installation $25.00 | |||
| Non-Slip Mat (x2) | $25 x 2 | 2 years | 0.48 |
| External Domestic Care | |||
| External domestic gardening | $1080 | 1 year | 20.77 |
| and maintenance 2 hours/month @ $45/hours | |||
| 18/09/2009External domestic | 7200 | Once off | N/A |
| renovation to provide minimum access to backyard 40hours/week over four weeks @ $45.00/hour | |||
| Total weekly | $ 200.00 | ||
| Total once off | $7,388.00 |
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210 As the total weekly cost is $200 per week, the plaintiff is entitled to
$200 x 772 (6 per cent multiplier for 34 years) = $154,400. In addition the plaintiff is entitled to the total of the once off items which is $7,388. This means that the total amount allowed for future medical, equipment and external domestic expenses is $161,788.
211 This leaves the question whether any allowance should be made for
potential future surgical procedures. The plaintiff submitted that the Court should add 10 per cent to the total amount allowed for future medical, equipment and external domestic expenses in order to provide for the chance that the plaintiff might need further surgical procedures. Professor Zellweger estimated that if the metal plate had to be removed in future this would cost approximately $2,200 and if an arthrodesis of the left ankle had to be performed this would amount to approximately $2,000. Dr Hammersley gave evidence that a revision of the end of the right stump would be likely to cost $8,000 if there were no complications and double that amount if the procedure did not go well. Dr Hammersley pointed out that there was a high risk of infection at the right forefoot because of the lack of circulation and the previous skin grafting. No estimate was provided by any of the experts in respect of the amputation of the left leg to below the knee should the plaintiff have a fall or experience other problems with the left leg which might require an amputation.
212 The plaintiff did not say that he was considering the revision of his
right stump at this stage, but there is a chance that this may arise in the future if the plaintiff has constant problems with the fragility of the stump ending. However, it seems that there is a low chance of the plaintiff pursuing this further surgical procedure in the future because of the risks involved, unless it is forced upon him. Dr Hammersley said that there was a constant risk of an infection or a pressure ulcer developing in the right foot.
213 It also seems that there is a relatively low chance that an ankle
arthrodesis will be required as both Professor Zellweger and Dr Hammersley expressed the opinion that the left ankle was likely to fuse of its own accord over the next few years. The most realistic possibility seems to be that the plaintiff may have a fall or another accident at some stage which may require removal of the metal plate or amputation of the left leg below the knee.
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214 The 10 per cent of the total amount allowed for future medical,
equipment and external domestic expenses claimed by the plaintiff to allow for the chance of future surgical procedures is approximately $16,000. There is no basis upon which that amount can be justified and no reason why the amount allowed for future medical, equipment and external domestic expenses should be increased by 10 per cent. Counsel for the defendant indicated that the defendant would accept an amount $10,000 for future surgical procedures and that seems to me more than reasonable. I therefore allow the amount of $10,000 for future surgical procedures.
Future gratuitous services
215 The plaintiff claimed $27,792.00 for future gratuitous services which
was based on two hours per week at $18 per hour x 772 (6 per cent multiplier for 34 years). The plaintiff relied on the evidence of Ms Cherie Joss who is the current partner of the plaintiff and said that she continues to assist the plaintiff with certain internal and external home duties. Ms Joss stated that she did approximately two hours per week gardening and whipper-snipping and also cleaned the bathroom and toilet once or twice a week.
216 The defendant did not dispute the allowance of this amount for future
gratuitous services, although none of the expert witnesses had given evidence that the plaintiff needed internal domestic care to the extent of two hours per week. Dr Hammersley was of the view that the plaintiff should be entitled to have the assistance of a cleaner who could give all wet areas a good clean once a month for four hours. This equates to half the plaintiff's claim of 8 hours per month. However, Dr Hammersley also said that the plaintiff would require assistance with gardening and external maintenance of four hours per month, whereas only two hours per month have been allowed for under the category "future medical, equipment and external domestic care". It therefore seems to me reasonable to allow the total amount of $27,792 which the defendant has not disputed.
Summary of damages allowed
| General damages | $130,000.00 |
| Past loss of earning capacity | $544,995.00 |
| Interest on past loss of earning capacity | $ 92,540.00 |
| Future loss of earning capacity | $603,670.00 |
| Future loss of superannuation | $ 65,480.00 |
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| Special damages (including Medicare charge) | $166,200.00 |
| Past gratuitous services | $ 39,060.00 |
| Interest on past gratuitous services | $ 6,246.00 |
Future medical, equipment and external domestic expenses $171,788.00
| Future gratuitous services | $ 27,792.00 |
| Total | $1,847,771.00 |
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