Chris Mavridis v Castalloy Manufacturing Pty Ltd No. SCGRG92/2378 Judgment No. 4298 Number of Pages 4 Industrial Safety

[1993] SASC 4298

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Industrial safety - negligence - liability of master for injury to servant - appellant injured during the course of employment, filling in for another employee - whether insufficient instructions given to the appellant - no breach of respondent's duty of care established - no foreseeable risk of injury - cause of injury not established.

HRNG ADELAIDE, 8 October 1993 #DATE 10:12:1993
Counsel for appellant:     Mr M Kernot
Solicitors for appellant:    Palios Meegan and Nicholson
Counsel for respondent:     Mr M Leaker
Solicitors for respondent: Andersons Barker Gosling

ORDER
Appeal dismissed.

JUDGE1 MILLHOUSE J The appellant was injured at work on 8 August 1990. He was filling in for another worker, as he had a few times before, in taking freshly moulded V8 engine manifolds out of their castings, trimming them and packing them in bins (or stillages), twenty to a bin stacked in four rows of five manifolds each. Whilst engaged in this job he felt, he said, "this severe stabbing pain in my neck". 2. The appellant is Greek by birth, his English is imperfect and he gave evidence through an interpreter. Even then the learned Trial Judge, Judge Bright, allowed two most significant answers to be translated again because the first translations did not give the proper sense of the appellant's answer in Greek. 3. The appellant's was the only evidence about the incident except for a written report by and the oral evidence of an expert in industrial safety, Mr R W Broughton. All the appellant's evidence on the topic was in chief: he was not cross-examined on it. 4. The manifolds weighed between 22.9 kilograms and 25 kilograms (this weight included some sand from the castings still caught inside) by the time the appellant had to manhandle them into position in the bins. 5. I shall not set out all the procedures before the manifolds were in the bins. Judge Bright has done that 2 in his Reasons with his usual thoroughness and accuracy. Suffice it to say that the appellant used what he called a "prong" (it must have been some mechanical lifting device) and that the bins, of steel, measured about 1500mm long by 1300mm wide by 600mm high. For those of us still more used to working in imperial, I understand that 300mm equals about one foot. Therefore the dimensions of a bin were about five feet by a little over four feet by two feet high. The manifolds were stacked in the bins in four rows of five and it was quite a tight fit. I deduce from the measurements that each manifold must have been about 300mm or one foot wide and of about the same length. Each was just about 600mm or two feet high, awkward and liable to catch on another. 6. The appellant said the only instruction he had in how to pack the manifolds in a bin came from "a Chinese man" who was, it seems, a leading hand. The appellant had watched him several times doing the job. Apart from watching the leading hand, a fork-lift driver had told him on an occasion earlier than 8 August 1990, that he should pack 20 manifolds in a bin, not 16 as he had begun by doing. 7. The leading hand had leant over the bin to position the manifolds and so did the appellant. No one suggested to him that it would be better to get into the bin itself to stack the manifolds. 8. Mr Broughton in his report considered that the appellant, "should have been instructed on the proper method of stacking without being exposed to the risk of physical injury." 9. Unfortunately the appellant's evidence about what he was doing is sketchy. I take from the transcript extracts to give his account:-
    " Q. How far would you have to move the manifolds in the
    crate.
     A. From where it was left by the prong, not a lot, but I
    actually have to lift it up and then place it inside the crate.
     .....
     A. The prong actually left the manifold in around the bin. I
    have to pick it up and place it upright in order to pack them
    into the crate.
     ........
     A. ... each manifold had to be upright, one next to the other.
     Q. Was there a certain number of rows of manifolds.
     A. Yes, there was, there was a row of four, then the fifth one
    was placed, say, slightly in the turned fashion and then the four
    rows of four."
     .........
     Q. Did anything happen to you that morning whilst loading the
    manifolds.
     A. Yes.
     Q. What happened.
     A. Well, what happened, during the time that I was about to
    pick up the manifold and manoeuvred it into the basket and place
    it upright next to the other ones, I felt this severe stabbing
    pain in my neck.
     .......
     A. I had my body basically over the basket and I went to grab
    hold of the manifold, in order to turn it around and then
    manoeuvre into the basket to place it upright and when I did that
    I felt this pain in my neck." 10. This was the extent of the evidence as to the incident. It is pretty thin. The learned Judge said:-
    " We are here dealing with weights of a little over 20
    kilograms. Presumably, to stand a manifold on end involves
    lifting approximately half that. I cannot say what forces are
    involved thereafter in manoeuvring an upright manifold into its
    correct position within a stillage. There was no evidence to
    suggest that, provided a worker was close to the weight he was
    manoeuvring, there was reason to criticise the system.
     It is no criticism of the plaintiff that he did not appear able
    to say precisely what he was doing at the moment he felt pain.
    Was he simply bending over, was he standing a manifold on end, or
    was he manoeuvring it into position?
     Moreover, there is no evidence as to where in the stillage the
    relevant manifold had been placed by the crane, nor of where it
    had to be manoeuvred to. There was no evidence of where the
    plaintiff was standing in relation to that manifold." 11. The learned judge and we on appeal have been left to guess where the appellant was standing in relation to the manifold he was lifting when he felt the pain in his neck. Certainly he was not standing in the bin. He said he was bending over but how far did he have to bend? We can't be sure. In my view there could be no finding about that even on the balance of probabilities. If the appellant had been stacking the manifolds consistently row by row - there is no evidence how consistently he was stacking them: one can only make an assumption - as he had stacked "five or six" already then he should have been on his second row. If - as I am prepared to assume - the manifolds were about one foot wide then he must have been bending over a little more than one foot to stack the second row. The height of a manifold was about two feet and the weight which the appellant would need to lift say 12 kilograms, about 27 lbs. (I accept the learned judge's method of calculation of the weight to be lifted, half the total weight, even though his actual estimate was a bit low.) 12. Given the dimensions and the weight to be lifted, there seems to me to be no foreseeable risk of injury or if there were foreseeable risk then the size of the risk and its degree of probability were negligible. Moreover neither the appellant (nor anyone else) should ever have had to lean over further than to position a second row: for the third and fourth rows he would stand, (surely anyone would]) on the other side of the bin. Mr Broughton canvassed this in his evidence. If these calculations be correct then stepping into the bin itself - an increasingly awkward manoeuvre as more manifolds were stacked in it - would have made hardly any difference. 13. All that being so, it is difficult to see what further instruction the respondent could have given the appellant in the safe stacking of the manifolds. 14. The learned Judge went on:-
    " I was asked to infer that a 'logical' inference would
    be that, as this was the sixth or seventh manifold to be put in
    the crate, one complete row of five, along the 1500 millimetre
    side closest to the plaintiff would have been filled and the
    plaintiff would have been leaning over that row to do his work.
    Even if it be true that one complete row of five manifolds had
    been put in position - and, at best, that can only be a weak
    inference, there is simply no evidence about where the plaintiff
    was standing (other than that he was outside the stillage). In
    short, there is no evidence as to whether the lift, or other
    manoeuvre, was being performed close to the plaintiff, or at arms
    length. Accordingly, even if it be the case that to perform this
    work at arms length is unsafe, and avoidable, it is not
    established that that was the cause of the injury. .............
    To find for the plaintiff, I would have to find that any lifting
    or manoeuvring of a manifold at all was unsafe and in breach of
    the defendant's duty. The evidence does not justify that finding.
    The plaintiff's claim must be dismissed." 15. I am obliged to agree with the learned judge. I suggest that the appeal be dismissed.

JUDGE2 KING CJ In my opinion the appeal should be dismissed for the reasons given by Millhouse J.

JUDGE3 DEBELLE J I agree that this appeal should be dismissed. I agree in substance with the reasons given by Millhouse J.