Casserly v Ingersoll-Rand (Australia) Limited
[2009] WADC 28
•5 MARCH 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CASSERLY -v- INGERSOLL-RAND (AUSTRALIA) LIMITED & ANOR [2009] WADC 28
CORAM: SCHOOMBEE DCJ
HEARD: 26 FEBRUARY 2009
DELIVERED : 5 MARCH 2009
FILE NO/S: CIV 1275 of 2004
BETWEEN: DANIEL PETER CASSERLY
Plaintiff
AND
INGERSOLL-RAND (AUSTRALIA) LIMITED
Second DefendantATLAS COPCO AUSTRALIA PTY LTD
Third Defendant
Catchwords:
Practice and procedure - Application to strike out pleading - Lack of particulars - Whether pleading frivolous or vexatious- Application for summary judgment on basis of plaintiff's failure to provide an expert report - Turns on own facts
Legislation:
Rules of the Supreme Court 1971, O20 r 19(1); O 16(1)
Result:
Application to strike out statement of claim granted in respect of par 10; remainder of application dismissed
Application for summary judgment dismissed
Representation:
Counsel:
Plaintiff: Mr S Walker
Second Defendant : Mr G Macnish
Third Defendant : No appearance
Solicitors:
Plaintiff: Chapmans
Second Defendant : Cocks Macnish
Third Defendant : Not applicable
Case(s) referred to in judgment(s):
Agar v Hyde (2001) 201 CLR 552
Anderson v City of Enfield Corporation (1983) 34 SASR 472
Barclay Mowlem Construction Ltd v Dampier Port Authority and Anor [2006] 33 WAR 82
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Cuckow v Polyester Reinforced Products Pty Ltd (1970) 19 FLR 122
Henderson v Curtis [2008] WASC 283
Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192
McPherson's Ltd v Eaton [2005] NSWCA 435
Smith v Littlemore (1996) 15 WAR 289
Thompson v Johnston and Johnson Pty Ltd [1991] 2 VR 449
Wyong Shire Council v Shirt (1980) 146 CLR 40
Youlden Enterprises v Health Solutions (WA) Pty Ltd and Ors [2006] WASC 161
SCHOOMBEE DCJ: Ingersoll‑Rand (Australia) Limited ("the second defendant") has brought an application to strike out the further amended statement of claim on the basis that certain paragraphs are frivolous or vexatious because of the lack of particulars supplied with regard thereto. The second defendant has also brought an application for summary judgment on the basis that the plaintiff's action is frivolous or vexatious because the plaintiff did not comply with an order to file non‑medical expert reports prior to 23 December 2008, is now precluded from adducing non‑medical expert evidence and cannot succeed in its claim without such evidence.
The plaintiff claims that during the period September 1998 to September 2002, and in the course of his employment with Alcoa of Australia Limited ("the first defendant"), he used jack hammers and rattle guns to knock out mill liners for not less than eight hours per 12 hour shift. The plaintiff says that in carrying out this work he was exposed to vibration emanating from the jack hammers and rattle guns on a "frequent basis and/or over prolonged periods". In ignorance of the dangers thereof he performed this work and thereby suffered injury to both shoulders, elbows, forearms, wrists and hands.
The plaintiff says in the further amended statement of claim that the jack hammers and rattle guns were manufactured by the second defendant and by Atlas Copco (Australia) Pty Ltd ("the third defendant") and supplied by J Blackwood & Son Limited ("the fourth defendant") to the first defendant. The plaintiff's claim has been discontinued against the first defendant and the fourth defendant.
The plaintiff's case against the second defendant is that "at all material times" the second defendant knew or ought to have known that the use of vibrating power tools such as jack hammers and/or rattle guns carried a risk of injury to users of the tools when employed too frequently and/or over prolonged periods of time. The plaintiff pleads that the second defendant therefore owed him a duty of care to warn of the dangers of using these tools too frequently and/or over prolonged periods of time and breached its duty of care by failing to display any or adequate warnings on the jack hammers and rattle gun to this effect. The plaintiff has made an alternative claim against the second defendant for breach of s 23 of the Occupational Safety and Health Act 1984.
The second defendant has denied that it manufactured the jack hammers and rattle guns and pleaded that it imported these tools from the United States of America and distributed them in Australia. The second defendant further says that if such tools are used properly and in accordance with the manufacturer's recommendation and warnings contained within the manufacturer's manuals accompanying these tools and the warnings attached thereto, they do not expose the user to any unreasonable risk of injury. The second defendant pleads that appropriate warnings were provided together with the jack hammers and rattle guns distributed by it in Australia. The warnings were provided in instruction and maintenance manuals and on the warning labels which accompanied or were attached to the jack hammers and rattle guns.
Application to strike out by reason of lack of particulars
The plaintiff has provided further and better particulars on a number of previous occasions in response to requests by the second defendant. The first answers to the second defendant's request for further and better particulars were delivered on 26 April 2005. In September 2006 certain paragraphs of the plaintiff's statement of claim were struck out. The plaintiff filed an amended statement of claim later that month. In May 2007 further orders were made striking out certain paragraphs of the amended statement of claim. A further amended statement of claim was filed in June 2007. A second request for particulars was served by the second defendant in November 2007 ("the request for particulars") and answered by the plaintiff on 27 May 2008. On 1 October 2008 Deputy Registrar Hewitt made an order striking out some of the particulars provided by the plaintiff in May 2008 and ordered the plaintiff to provide further and better particulars. These particulars were provided by the plaintiff on 2 December 2008. The second defendant's current application alleges that these particulars are still deficient and cause the relevant paragraphs of the further amended statement of claim to be frivolous or vexatious and that the statement of claim should therefore be struck out.
The second defendant's first complaint is that the "risk of injury" and the "dangers" of using the jack hammers and/or rattle guns referred to in par 6A and par 6C of the further amended statement of claim (dealing with the duty of care), par 6E (dealing with causation) and par 9 (dealing with the second defendant's breach by failing to display a warning) are not properly defined. I am of the view that there is no merit in this complaint.
Paragraph 6E of the further amended statement of claim states that in carrying out the work the plaintiff was exposed to vibration emanating from the jack hammers and rattle guns on a frequent basis and/or over prolonged periods and thereby suffered the injuries to his shoulders, arms and hands. Further, in response to a question which asked the plaintiff to identify precisely the "risk of injury" alleged, the plaintiff replied that this was the risk that the plaintiff, in using the tools, would suffer the injuries that he incurred. The plaintiff further explained that the use of the tools carried a risk of injury to the plaintiff as it resulted in the transmission of intense vibration into the plaintiff's hands and arms, as described in inter alia AS‑2763, parts of which were attached.
In my view the plaintiff has explained adequately that the "risk of injury" or "danger" associated with the use of the jack hammers and rattle guns was the risk that if they were used too frequently or over long periods of time they would transmit intense vibration into the plaintiff's upper limbs which was likely to result in the injuries as pleaded by the plaintiff.
The second defendant's further objection is that the plaintiff has not provided adequate particulars of what "too frequently and/or over prolonged periods of time" means. This phrase appears in par 6C, par 6E and par 9 of the further amended statement of claim. The further and better particulars provided in respect of these paragraphs state that "too frequently" means the same as "over prolonged periods of time" and is defined as a time of between 15 minutes and 2.5 hours per 12 hour shift, depending on the vibration level.
Counsel for the second defendant submitted that it could not know what the content of its duty of care was or what warning it should have affixed if it did not know what the vibration of the jack hammer and the rattle guns used by the plaintiff were. As part of the answers provided by the plaintiff he referred to annexure H, which was one of the documents attached to indicate that the second defendant had knowledge or constructive knowledge of the risk of injury arising from the use of the tools. Annexure H displays what appears to be three warning labels. The first indicates that at a vibration level of 5.8 M/S2 the maximum usage per 12 hour shift should be 15 minutes (total time accumulated). The second label indicates that at a vibration level of 3/5 M/S2 the maximum usage per 12 hour shift should be one hour. The third label says that at a vibration level of 0‑3M/S2 the maximum usage should be 2.5 hours per 12 hour shift. Annexure "H" does not indicate to what tools these warnings relate or who has produced them. However, in my view the plaintiff does not have to tell the second defendant at this stage where these warnings originated. The plaintiff only has to advise the second defendant what its case is regarding the maximum recommended time during which tools of various vibration levels may be used, which it has done by reference to annexure "H".
Counsel for the second defendant submitted that the plaintiff was obliged to advise the second defendant of the exact vibration level applicable to the jack hammer and rattle gun used by the plaintiff and allegedly manufactured by the second defendant. The plaintiff pleads in par 5 of the further amended statement of claim that he used Ingersoll Rand and Atlas Copco jack hammers and rattle guns during the course of his employment with the first defendant. The plaintiff's further and better particulars filed in April 2005 state that the Ingersoll Rand jack hammer was named "Ingersoll Rand XDR‑85 paving breaker" and was approximately 20 years of age, whereas the rattle gun was known as an "Ingersoll Rand impact gun, model number IR2934" and was estimated to have been 20 years of age. The plaintiff may not know the exact vibration level of these tools, but the information provided by him to the second defendant may be sufficient for the second defendant to establish what the vibration level was of the tools used by the plaintiff.
In any event, the information provided by the plaintiff about the maximum usage time in comparison to the vibration levels indicates that 2.5 hours per 12 hour shift is the maximum time that is acceptable. The plaintiff also provided answers in April 2005 to the third defendant's request for further and better particulars. In answer one the plaintiff states that he was required to knock out mill liners for not less than eight hours per shift, and for the remaining four hours per shift he worked on maintenance of the pumps and valves. In answer four the plaintiff says that he used the jack hammer manufactured by the second defendant for approximately 50 per cent of the eight hours during which he knocked out mill liners. The rattle guns were used by him throughout each 12 hour shift for loosening and tightening bolts associated with the removal of mill liners and in the process of maintaining the pumps and valves. The plaintiff says that the rattle guns manufactured by the second defendant were used by him for approximately 50 per cent of that time. The plaintiff's answers to the third defendant's request were also served on the second defendant's solicitors.
Although the plaintiff has not provided the second defendant with the exact vibration levels that apply to the particular tools and has not provided a maximum time for which those tools were safe to use, he has advised the second defendant that its case is that using the second defendant's tools for 50 per cent of the time of a 12 hour shift is in excess of any safe parameters for usage.
The third objection raised by the second defendant is that plaintiff has not provided sufficient particulars of the basis on which it is said to have had knowledge or constructive knowledge that the use of the jack hammers and rattle guns carried the risk of the type of injury suffered by the plaintiff when operated for a prolonged period of time. Order 20 r 13(1)(b) of the Rules of the Supreme Court1971 provides that a party does not have to give particulars of the facts on which it relies where it alleges knowledge of a matter by the opposing party. However, where a party contends that the opposing party ought to have known something, it implies the existence of facts and circumstances from which the requisite knowledge should have been acquired and particulars of those facts and circumstances need to be given: Smith v Littlemore (1996) 15 WAR 289 at 300.
The second defendant requested particulars of every fact, matter, circumstance and thing relied upon for the allegation that the second defendant knew or ought to have known that the use of the vibrating power tools carried a risk of injury to the plaintiff. The plaintiff responded that the second defendant had designed, manufactured and/or supplied the jack hammers and rattle guns since at least the 1970's. He also attached to his answers a number of publications dealing with the likelihood of transmission of vibration from air‑powered tools to the user's arms and hands and the risk of injury resulting from this. Three of the publications were under the name Ingersoll-Rand, one being an introduction to its professional tools, called "Impactools", another a guide on ergonomics and a third on "The Forces at Work" where professional tools were being used. The plaintiff also attached an operation and maintenance manual produced by the second defendant for series 2934B and 2940B Impactools. The documents provided by the plaintiff further contained part of the Australian Standard 2763‑1988 on vibration and shock and hand‑transmitted vibration and part of International Standard 5349‑2 on measurement and evaluation of human exposure to hand‑transmitted vibration.
Counsel for the second defendant pointed out that all these publications were either undated or were published after 1988. He submitted that the plaintiff would have to prove that the second defendant had at least constructive knowledge of the relevant risk by the end of 1982, because the plaintiff pleaded that it used the second defendant's tools during the period September 1998 to September 2002 and provided particulars that these tools were then estimated to be 20 years old. I note that the plaintiff says in the further amended statement of claim that the second defendant had the requisite knowledge "at all material times". No particulars were requested with regard to this phrase. However, I agree with counsel for the second defendant that if the plaintiff intended to present a case that the second defendant had a duty of care to warn of the relevant risk after the tools were supplied to the plaintiff's employer, a more specific plea would have had to be made in that regard. Accordingly, I agreed with counsel for the second defendant that in order to prove that it had a duty of care, the plaintiff needs to show that the second defendant knew or ought to have known of the risk at the time when it manufactured or supplied the tools.
The second defendant says that the answer by the plaintiff together with the attached documents does not tell it why the plaintiff says it ought to have had knowledge of the risk in the early 1980s. It is correct that the attached documents are either undated or dated after 1988. However, they also contain information which indicates that the manufacturing industry of air‑powered tools was aware of the risk of transmission of vibration to the user's limbs well before then and that the second defendant also had that knowledge or at least enough information to provide it with a good reason to make further investigations prior to the publication of the Australian Standard 2763 in 1988. The document containing an introduction to the second defendant's Impactools states that the second defendant has pioneered the development and advancement of impact tools for more than 60 years. Although the document is undated, it also says that "throughout the 1950s and 60's, the second defendant continued to expand its Impactool range as new and different applications arose.
The second defendant's document dealing with ergonomics describes cumulative trauma disorders and says that they can arise from repetitive stress at work. Cumulative trauma disorders are said to cover a broad category of illnesses which include tendon disorders, nerve disorders and neurovascular disorders. The document says that cumulative trauma disorders have been described as "the epidemic of the 1980's". The document also refers to other publications which contain further relevant information on the subject. These publications appear to have been published in the United States of America and bear dates between 1982 and 1988.
The document which describes the "Forces at Work" contains an illustrated warning sign which says, inter alia, the following: "Air powered tools can vibrate in use. Vibration, repetitive motions or uncomfortable positions may be harmful to your hands and arms". This document does not appear to be dated.
The Australian Standard 2763–1988 describes that intense vibration can be transmitted from vibrating tools to the hands and arms of operators and that continued, habitual use of such tools has been found to be connected with various patterns of diseases affecting, inter alia, joints, muscles and connective tissues of the hands and forearm. The Australian Standard includes a bibliography which refers to various European and Japanese publications dating back as early as 1966. It also refers to a publication by the British Standards Institution which is dated 1975 and other English publications of the early 1970's and early 1980's. A publication by the International Occupational Hand‑Arm Vibration Conference is dated 1977.
The operation and maintenance manual produced by the second defendant contains the same warning as its document dealing with the "Forces at Work". The manual is dated 1966.
Although the plaintiff did not provide the second defendant with any publications predating 1982, nor furnished particulars to the effect that it was generally known in the manufacturing industry of air‑powered tools in the late 1970's and early 1980's that vibration of the tools could be transmitted to user's limbs and cause injury, the documents that are attached indicate that such information was available prior to 1982. The second defendant therefore knows that the case it has to meet is that there were publications available prior to 1982 which a large manufacturer or supplier of air powered tools would or should have been aware of and if the second defendant did not have actual knowledge of the relevant risk, these publications provided sufficient reason for it to make further enquiries. Whether the plaintiff will be able to prove that the earlier publications referred to in the attached documents were available to the second defendant and that a reasonable manufacturer or supplier in the second defendant's position would have been aware of these publications is another matter. However, at this stage, the second defendant is not entitled to test all of the evidence that will be presented by the plaintiff. All that it is entitled to know is what the plaintiff's case is and on what facts and circumstances the allegation that the second defendant ought to have had the requisite knowledge is based.
Martin CJ has indicated on a number of occasions that interlocutory disputes, particularly disputes relating to pleading issues should be discouraged: see, for example, Youlden Enterprises v Health Solutions (WA) Pty Ltd and Ors [2006] WASC 161 at [2]. Martin CJ also held in Barclay Mowlem Construction Ltd v Dampier Port Authority and Anor [2006] 33 WAR 82 at [8] and [10] that with the advent of contemporary case management techniques and pre‑trial directions, a court should only entertain criticisms directed at pleadings where the perceived problems significantly impacted upon the proper preparation of the case. Where a lawyer who was genuinely interested in knowing what the issues were to be tried and the case that he had to meet, would have no difficulty in ascertaining those matters, the court should not uphold any objection to a pleading.
In my view the second defendant is able to know what case is being brought against it and able to assess what preparation is required by it.
Counsel for the plaintiff conceded at the hearing of the strike out application that par 10 of the further amended statement of claim should be struck out. An order to this effect should be made. The remainder of the application to strike out should be dismissed.
Application for summary judgment
The second defendant has also brought an application for summary judgment on the basis that the plaintiff cannot succeed against the second defendant without establishing the vibration levels of the second defendant's tools in the circumstances in which the plaintiff used those tools and that such evidence can only be given by a suitably qualified expert. The second defendant says that because the plaintiff is now precluded from filing and serving a report of a non‑medical expert, the plaintiff is unable to present a successful case and summary judgment should be granted to the second defendant on the basis that the plaintiff's action is frivolous or vexatious.
The vibration levels of the second defendant's tools are relevant with regard to causation and with regard to establishing the breach of the duty of care which includes a consideration of the type of warning that the second defendant should have given. I do not believe that the vibration levels of the relevant tools need to be established before a finding of the existence of a duty of care can be made, as the duty should not be described in terms of the exact risk that has eventuated: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [192]. Further, in determining the existence of a duty of care and the foreseeability of the risk, it is not necessary that a defendant ought to have foreseen the exact risk that eventuated. As long as the kind or type of injury was foreseeable, this is sufficient for a finding of a duty of care: Hughes v Lord Advocate [1963] AC 837 at 845, 850 – 851, 852, 856 and 857 and Cuckow v Polyester Reinforced Products Pty Ltd (1970) 19 FLR 122 at 133. A formulation of the duty of care in terms such as "a duty to take all reasonable steps to prevent injury to a user of the tools" would have been adequate. It is in defining the scope of the duty of care, which is relevant to the question whether a breach occurred, that matters such as the nature of the risk, the defendant's knowledge of the probability of it occurring and the reasonable steps to be taken to prevent injury are of importance.
As regards causation, the plaintiff clearly needs to establish that it was the vibration of the relevant tools which caused him the alleged injuries. However, it may not be necessary for the plaintiff to prove the exact vibration level of each tool in the circumstances in which he used those tools. It may be sufficient for the plaintiff to establish that the vibration level of these types of tools was so high that prolonged use over a 12 hour shift, as described by the plaintiff in the particulars furnished to the third defendant, was more than likely to cause the particular injuries that the plaintiff suffered.
In Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 at [21] ‑ [22] the issue under consideration was also whether there was a serious question to be tried in light of the fact that the plaintiff was precluded from filing and serving any non‑medical expert report. In that case the plaintiff's claim was based on an injury sustained by reason of the prolonged use of grinders which generated vibration. The Court of Appeal only considered the plaintiff's claim against the employer. The plaintiff's claim against the manufacturer had been dismissed by Registrar Wallace in the District Court because of the plaintiff's failure to produce the relevant non-medical expert evidence, which decision was upheld on appeal by Wager DCJ. Buss JA considered whether the plaintiff would be able to prove causation without non‑medical expert evidence, particularly whether the vibrations produced by the grinders in the circumstances in which they were used by the plaintiff, including the duration and frequency of use, materially contributed to his alleged injuries. Buss JA held that a subsidiary question was whether the relevant grinders had the tendency or capacity, if used in the relevant circumstances, to cause or materially contribute to the injuries of the kind which the plaintiff suffered. Buss JA referred to Wigmore on Evidence (Chadbourn revision), Vol 2, 1979 at 523 – 534, [441] where the learned author explains that where the tendency or capacity of an inanimate object has to be proven, an inference of that tendency or capacity may be made from "specific instances of observed effects, exhibitions or illustrations, to the supposed tendency, capacity or quality of producing them".
Buss JA came to the conclusion that the tendency or capacity of the grinders could therefore be proven by the plaintiff giving evidence of his own personal experience of the grinders producing vibrations, the specified nature and extent thereof and the physical effects it had on him. The plaintiff would also be able to call co‑workers or others to give similar evidence. Further, it was open to the plaintiff to call a suitably qualified medical practitioner, for example, an occupational physician, as to his or her opinions and as to findings and opinions recorded in medical literature of the effects on workers who operated the grinders in question or comparable equipment. Buss JA held that in light of the fact that the plaintiff could rely on lay evidence or medical expert evidence to prove the tendency of the grinders to produce vibrations and thus causation, it could not be concluded that the plaintiff had no reasonable prospect of success in proving its case.
The same observations that Buss JA made clearly also apply in the present case with regard to proof of causation. It may not be necessary to establish the exact level of vibration of the jackhammers and rattle guns if there is lay evidence that they produce a high level of vibration and if a medical expert can say that the levels of vibration as described by the lay witnesses would have been likely to have caused the relevant injuries.
The next question is whether the plaintiff requires non‑medical expert evidence in order to establish the vibration levels of the relevant tools for purposes of proving that the second defendant breached its duty of care by not affixing the requisite warning to the tools. Counsel for the second defendant argued that the scope of the duty of care of the employer in Hismelt Corporation Pty Ltd v Pratt (supra) was quite different to the scope of duty of a manufacturer or supplier as an employer's duty was to provide a safe system of work and to appropriately supervise a worker. Counsel for the second defendant did not define the scope of duty of a manufacturer and maintained that the second defendant had at no stage manufactured the relevant tools, but had at all times only imported them from America and supplied them to the fourth defendant. He offered to produce an affidavit by the second defendant's managing director in this regard. The plaintiff maintained its allegation in the further amended statement of claim that the second defendant had manufactured the tools. Even if affidavits were supplied, it is not possible to decide this issue of fact at this stage.
In any event, it is not necessary for purposes of the present application to deal with the difference in the scope of the duty of care owed by the second defendant if it were the manufacturer and if it were the supplier of the jackhammers and rattle guns. In general terms it may be said that a manufacturer of an inherently dangerous or unsafe product has a duty of care to the user of its product to take reasonable steps to ensure that the product comes with a warning that defines the parameters of safe use: Thompson v Johnston and Johnson Pty Ltd [1991] 2 VR 449 at 488 – 491 and Anderson v City of EnfieldCorporation(1983) 34 SASR 472 at 476. The scope of duty of a supplier or distributor of goods may be more circumspect because a supplier or distributor can generally not be expected to check the safety of each product that it handles. In such cases the courts have required proof of facts or circumstances which indicated to the supplier or distributor that there might be a problem with the goods so that the supplier or distributor had reason to make further enquiries or investigations: McPherson's Ltd v Eaton [2005] NSWCA 435 at [128 ‑133].
The scope of the duty of care is to be determined on the basis of the principles proposed in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48 which require consideration of the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant might have. Irrespective of whether the second defendant was the manufacturer or the supplier of the tools, the plaintiff will have to prove what the second defendants knew or ought to have known with regard to the magnitude of the risk and the probability of it occurring. In McPherson's Ltd v Eaton (supra) at [138] Ipp JA held that the Shirt-calculus called for factual findings to be made as to the particular matters that should have been known to the supplier with regard to the dangers of the product. However, in making a finding as to what facts should have been within the knowledge of the second defendant, it is not necessary that the plaintiff prove the exact levels of vibration transmitted by the relevant tools. The plaintiff may be able to prove that it was or ought to have been within the second defendant's knowledge that tools of the kind manufactured or supplied by it had such levels of vibration that they were likely to cause injury to users of such tools. It is possible to assess the magnitude of the risk and the degree of probability of it occurring without proving the exact vibration levels generated by each tool. The evidence could be to the effect, for example, that the second defendant knew that jack hammers and rattle guns are the kind of tools that generate high levels of vibration and that these tools should not be used for more than 2.5 hours per 12 hour shift.
It should be noted that the second defendant pleaded in its defence that adequate warnings were provided to the plaintiff on warning labels attached to the jack hammers and rattle guns distributed by the second defendant in Australia. That in itself may to indicate that the second defendant knew of some risk of injury, as it would have observed the warning labels.
The argument that the scope of the duty of care cannot be determined without evidence of the exact vibration levels of the relevant tools being established could also have been raised in respect of the plaintiff's case against the employer in Hismelt Corporation Pty Ltd v Pratt. The exact vibration levels of the grinders or the place that they occupy on a hierarchy of vibration generating tools would also have been relevant to the court determining whether the employer put in place a safe system of work and properly supervised the employee. Although the Court of Appeal did not deal with the issue of determining the scope of the duty of care, it must have accepted that it would be sufficient for the plaintiff to establish for this purpose whether the grinders generated minimal, moderate or high-level vibration.
It may also not be necessary in order to establish the breach and the type of warning that the second defendant should have affixed to the tools that the plaintiff establish the exact vibration levels of the relevant tools. The plaintiff may be able to make out a case that a more general warning about prolonged use would have been adequate.
Summary judgment will only be granted when there is no real question to be tried. It is only in the clearest of cases where there is a high degree of certainty about the ultimate outcome of the proceedings that summary judgment ought properly be granted: Agar v Hyde (2001) 201 CLR 552 at [57], Henderson v Curtis [2008] WASC 283 at [2]. In my view there is not a high degree of certainty that the plaintiff will not be able to prove its case without a non‑medical expert. It seems that the plaintiff would at least require the evidence of a medical expert, such as an occupational physician, to give evidence in general terms about the vibration levels of tools such as jack hammers and rattle guns, the transmission of such vibration into the user's limbs and the potential injuries arising from this transmission. However, the plaintiff is still in a position to file and serve medical expert reports.
Counsel for the second defendant submitted that the plaintiff would also need to prove the vibration levels of the relevant tools by way of non‑medical expert evidence in order to prove its case of the second defendant's breach of s 23 of the Occupational Safety and Health Act 1984. Section 23(1) provides as follows:
"23. Duties of manufacturers etc.
(1)A person that designs, manufactures, imports or supplies any plant for use at a workplace shall, so far as is practicable —
(a)ensure that the design and construction of the plant is such that persons who properly install, maintain or use the plant are not in doing so, exposed to hazards;
(b)test and examine, or arrange for the testing and examination of, the plant so as to ensure that its design and construction are as mentioned in paragraph (a); and
(c) ensure that adequate information in respect of —
(i) any dangers associated with the plant;
(ii)the specifications of the plant and the data obtained on the testing of the plant as mentioned in paragraph (b);
(iii)the conditions necessary to ensure that persons properly using the plant are not, in so doing, exposed to hazards; and
(iv) the proper maintenance of the plant,
is provided when the plant is supplied and thereafter whenever requested."
The words "so far as is practicable" are defined in s 3 of the Occupational Safety and Health Act 1984 as follows:
"practicable means reasonably practicable having regard, where the context permits, to —
(a)the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;
(b)the state of knowledge about –
(i)the injury or harm to health referred to in paragraph (a);
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the risk or mitigating the potential injury or harm to health;
and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii);"
Section 23(1) read together with the definition of "practicable" indicates that the state of knowledge of the manufacturer or supplier with regard to the risk of injury arising from the use of the plant manufactured or supplied by it is a relevant consideration in deciding whether the manufacturer or supplier breached the Occupational Safety and Health Act 1984. The degree of risk of the injury occurring is another matter to be taken into account. Accordingly, similar considerations that are relevant to the determination of the scope of the duty of care apply in assessing whether a manufacturer or supplier breached its obligations under this act. There is no indication that the plaintiff would not be able to prove its case of statutory breach where it does have the potential to prove its case in tort.
Accordingly, I am of the view that the application for summary judgment should be dismissed.
Delay in bringing the applications
It is not necessary to deal with the second defendant's delay in bringing the application to strike out the further and better particulars furnished on 2 December 2008 or its delay in bringing the summary judgment application, as I have come to the conclusion that neither application would succeed on its merits.
0
10
1