Dhu v Total Corrosion Control Pty Ltd
[2001] WADC 119
•18 MAY 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DHU -v- TOTAL CORROSION CONTROL PTY LTD & ORS [2001] WADC 119
CORAM: WISBEY DCJ
HEARD: 12-15 FEBRUARY 2001
DELIVERED : 18 MAY 2001
FILE NO/S: CIV 4290 of 1998
BETWEEN: DARRYL WILLIAM DHU
Plaintiff
AND
TOTAL CORROSION CONTROL PTY LTD
First DefendantJET SEAL PTY LTD
Second DefendantCO-OPERATIVE BULK HANDLING LTD
Third Defendant
Catchwords:
Negligence - Master and servant - Duty of care - Third defendant owner of equipment being used by plaintiff on instructions from employer - Duty to provide safe plant - Whether duty required non-destructive testing of slew pivot post on cherrypicker - Whether proper inspection would have revealed defect
Legislation:
Nil
Result:
Negligence not established - Claim dismissed
Representation:
Counsel:
Plaintiff: Mr T N Cullity
First Defendant : Mr M A McAuliffe
Second Defendant : No Appearance
Third Defendant : Mr D R Clyne
Solicitors:
Plaintiff: D'Angelo & Partners
First Defendant : McAuliffe Williams
Second Defendant : Nil
Third Defendant : Freehills
Case(s) referred to in judgment(s):
Donoghue v Stephenson (1932) AC 562
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Fox v Wood (1981) 148 CLR 438
Jones v Dunkel (1959) 101 CLR 298
Schellenberg v Tunnel Holdings Pty Limited (1999) 200 CLR 121
Case(s) also cited:
Burnie Port Authority v General Jones Pty Ltd (1994) A Tort Rep 81-264
General Jones Pty Ltd v Wildridge & Sinclair Pty Ltd & Anor, unreported; SCt of Tasmania; BC8800045; 2 August 1988
Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359
Jones v Bartlett (2000) 176 ALR 137
Jones v Multiple Sclerosis Society of Victoria Ltd [1996] 1 VR 499
Kondis v State Transport Authority (1984) 154 CLR 672
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sullivan v Gallagher & Craig [1959] SC 243
WISBEY DCJ: On 8 October 1994 the plaintiff, Darryl William Dhu, and a fellow employee, Troy Johnathan Alexander, were engaged in polyurethane spray sealing of the structural joins in the third defendant's wheatbin at Kulin. To facilitate access to the roof joins they were using a Crown SP2000 elevating platform (described in the statement of claim and hereinafter as a cherrypicker) the property of the third defendant, which was provided by the third defendant to the plaintiff's employer the first defendant inter alia for the activity in which the plaintiff was engaged. The plaintiff and Alexander were standing in the basket cage of the cherrypicker using foam sprayguns connected by long hoses to an independent pumping unit. Whilst engaged in this activity the platform and basket became detached from the hydraulic boom due to a fracture of the slew pivot post, causing the plaintiff to fall 3 or 4m to the ground, sustaining injuries. As a consequence the plaintiff brings this action against his employer, Total Corrosion Control Pty Ltd (the first defendant), and Co‑Operative Bulk Handling Ltd (the third defendant). For reasons which are not material to my decision, the plaintiff is not pursuing the claim against the second defendant. The first defendant brings a claim for indemnity and/or contribution against the third defendant.
I observe that the plaintiff commenced these proceedings approximately four years after the accrual of the cause of action by which time the fractured slew pivot post had been disposed of, and it has not been possible to have the fracture scientifically examined and analysed. As will be seen later in these reasons, that is a matter of consequence.
In the statement of claim the plaintiff alleges that "the basket slew pivot post suddenly broke along a fatigue crack which caused the cherrypicker basket to detach from the boom". It is alleged that was a consequence of the negligence of each defendant in failing to pre‑check the cherrypicker to ensure its integrity, and in particular in failing to subject it to a major inspection "involving a strip down and visual inspection of components and if necessary non‑destructive testing thereof to guard against the possibility of failure of components due to fatigue cracking". The plaintiff alleges that as a result of the defendants' negligence aforesaid he suffered trauma to the back involving facet joint injury and crushed vertebra at the T11 level, and that consequently he has experienced pain and suffering, loss of amenities, and loss of earning capacity.
The first defendant denies that it was negligent as alleged or at all, pleading that the cherrypicker was owned by the third defendant and that in the circumstances it was entitled to assume that the cherrypicker was in a proper mechanical state and suitable for the purpose for which it was required.
The third defendant denies the allegations of negligence against it, and asserts that the plaintiff was negligent in allowing the basket cage to impact with part of the bin. It does not plead that the alleged impaction caused the fracture, but that was its case at trial.
In its statement of claim for contribution against the third defendant, the first defendant alleges that the third defendant, having made the cherrypicker available for use by it, had a duty to ensure that it was in good working condition prior to its use by the first defendant, and was negligent in failing to observe that the slew pivot post had a hairline crack in it.
The evidence
Darryl William Dhu
The plaintiff is living in a de facto relationship with Meaghan Edmondson, there being a 4½ year old boy and a 2½ year old girl issue of the relationship. He left school when he was 15 and took up work as a storeman with a sporting goods firm, worked as a storeman at Dunlop Tyres and Cannington Distribution Centre, and then as a brick paver. From brick paving he moved on to fireproofing. In 1989 he obtained work with Bains Harding Industries as a waterproofer, and later as a spraygun operator in the insulation division. It appears from the evidence that the work at Bains Harding came to an end, and some time later he was offered a job with the first defendant by Terry O'Callaghan, a former employee of Bains Harding. The plaintiff began employment in September 1993 and claimed he was earning about $600 per week gross. He had been working at the Kulin bin for approximately five days before the accident.
When describing the accident the plaintiff stated that he was operating a spraygun and the last thing that he remembered before being placed in an ambulance, was the basket passing under a truss. He was taken by ambulance to the local hospital before being transferred to the Narrogin Hospital from where he was discharged the following day. He could hardly move, was very sore, and had back pain at about the level of the lower part of the sternum. As soon as he returned home he contacted his general practitioner, Dr Olszewski, who he has since seen regularly.
When describing his present symptoms the plaintiff stated that there was a 50mm circular spot in the mid‑back, and that upon exertion he experienced hot shocks radiating from that area. He stated that the more he did, the greater the area of pain. In addition to experiencing difficulty with the central back, he experienced muscle spasm in the cervical and lumbar areas. The plaintiff stated that he took Panadeine Forte and Celebrex for pain relief, although Panadeine appears to be the principal analgesic.
The plaintiff was off work from the date of the accident until February 1995 when he went back on light duties for two hours a day, gradually increasing to a full day's activity over a couple of months. He stated that he was not coping well when he increased to full duties, and worked in the yard rather than going away on jobs. For a long period of time he just sat in the trailer "sort of hiding myself away there" and he claimed that he spent months and months just sitting in the trailers reading magazines. The plaintiff stated that although his doctors had told him he would get better, there was no change in his condition. He claimed that having worked out that he was unlikely to get overtime or be allocated normal activities unless he was certified as fit, he requested the general practitioner issue a final certificate. His recollection was that he would have indicated to the general practitioner that he was "fine". He stated that at the time of the issue of the final certificate it was a quiet period, and he did not engage in foam application work for a couple of months.
About four months after the issue of the final certificate the plaintiff was working on a CBH site in Kwinana and was removing a drum when he experienced a significant exacerbation of back pain. Several months later, whilst engaged in a job at Manjimup, the plaintiff informed his superior Mr O'Callaghan that his back had "given up the ghost" and he ceased work and apparently has since been in receipt of workers' compensation.
In March 1998 the plaintiff was referred to the Commonwealth Rehabilitation Service, and having expressed interest in TV repairs was referred to Mr Burbidge, the proprietor of Mundaring TV & Video Repairs, where he commenced working one day a week, gradually building up to 3½ days per week. Essentially the work involved learning soldering, fault finding techniques, and basic electronics. He acknowledged being able to handle the work, although any sort of reaching, overextending, or heavy lifting, aggravated his back condition. As at the date of trial the plaintiff had enrolled in an electronic servicing course at TAFE involving three full days tuition a week.
The plaintiff claimed that prior to the accident he used to play tennis, go tenpin bowling, and engage in trail bike riding; activities which he can no longer undertake. In fact the effect of his evidence was that he had considerable difficulty engaging in all but the most elementary social or domestic activities. He repeated the view that his physical situation had deteriorated, claiming that the pain state came on with less activity now than several years ago.
The plaintiff submitted a book of economic documents (Exhibit P1). He stated that his future vocational plans were for his partner to be the main money earner, and for him to engage in two or three days a week light TV and video repair work. He felt that he could start off in such work within a year, but would take three years to fully qualify.
In cross‑examination the plaintiff confirmed that when moving around in the cherrypicker there were many occasions when the basket cage would come into contact with parts of the bin, but he was unable to recall any impact of consequence. He indicated that when engaged in foam application the weight of the gun and connecting hose would have been of the order of 8 to 9kg, and that there was a significant amount of physical movement required by the operator.
The plaintiff stated that after returning to work following the accident he was experiencing symptoms "all through the lower back, the main spot in the middle, and neck". It was put to him that he had engaged in a reasonable amount of overtime post‑accident, and he seemed to experience difficulty explaining that fact. Indeed it does not sit easily with his evidence‑in‑chief as to the nature of the work in which he was engaged upon returning to duties. When it was suggested to the plaintiff that Mr Howson, one of the first defendant's employees, would given evidence that the plaintiff was performing normal duties after his return to work, he accepted that might have been the impression that he gave. He was adamant, however, that he did not substantially return to normal duties. He agreed that there was a change in his attitude to his fellow employees towards the end of 1998, claiming that was because of the pain he was experiencing.
When it was put to the plaintiff that for the 12 month period ended 30 June 1998 he had only received one prescription for analgesics, he indicated that he had consumed more than one packet, but agreed that during 1999 he only required a 50 tablet packet of Panadeine Forte on a quarterly basis. The plaintiff claimed that driving a vehicle caused neck and back symptoms.
When it was put to the plaintiff that a number of the progress certificates referred to neck and low back pain rather than thoracic pain, he stated that he had always complained of thoracic pain. His attention was drawn to a first medical certificate dated 20 August 1997 indicating that he hurt his upper back on 15 August 1997 pushing six 200lt drums from a pallet, and he stated that they were empty drums and he was not fully fit at the time. The incident was also supported by a workers' accident form dated 21 August 1997 (Exhibit A) in which the plaintiff indicated that his back problems were totally attributable to this incident. His attention was also addressed to a recurrence form dated 22 December 1997 (Exhibit B) wherein he indicated that he experienced back pain as a result of spraying activities including bending, on 10 December 1997, which was related to a recurrence of the injury sustained 15 August 1997.
It was put to the plaintiff that the rehabilitation specialist, Mr Ker, certified him fit for work as a storeman in August 1998, and when asked whether he had looked for such work his response was "Why should I have to be a storeman?". He qualified this by suggesting that the reason he was not seeking work as a storeman was because he would be unable to handle the work. In discussing his plans for work from home, the plaintiff stated that he would mind the children, and envisaged additionally earning an income of $200 - $300 per week.
John James Lemon
Mr Lemon is and was at all material times in the employ of the first defendant, and as at October 1994 was its safety officer. Upon hearing of the accident he attended at the Kulin bin with Mr O'Callaghan on 9 October 1994 arriving at about 9/9.30 am, and examined the cherrypicker. His recollection was that the boom was about 3m above the ground, and the basket cage 2.1 to 2.5m from the ground. Mr Lemon's task was to try and determine the cause of the accident, and examination revealed that the slew pivot post had parted at the mounting bracket. He stated that the slew pivot post had broken very close to the boom mounting bracket. The fracture surface was jagged in appearance and there was evidence of what he thought was grease on the fracture surface to a depth from the perimeter of up to 5 - 10mm in places. He concluded that the grease was old or dry and had been there for some time, and thought that the only way grease could have penetrated the fracture surface was if there had been an old crack or fracture. Mr Lemon took a series of seven photographs of the cherrypicker and basket cage, some of which he said demonstrated the grease on the fracture surface. The photographs were admitted in evidence (Exhibit P2).
Mr Lemon prepared an internal report dated 10 October 1994 (Exhibit P4) which outlines his investigation, and in par 5 it makes specific reference to the fact that the slew pivot post had sheared off at the bottom bush head attached to the extension boom mounting bracket. The report contains no suggestion of pre‑existing cracking, and that is surprising indeed if that was thought to be the case.
Mr Lemon stated that he did not observe damage to the basket cage other than normal wear and tear (ie nothing to suggest that it had impacted with part of the grain bin). He stated that the first defendant did not have a procedure in place for the checking of cherrypickers prior to their use, pointing out that they were supplied by the third defendant who had the responsibility to ensure their integrity. He pointed out that the plaintiff and Alexander were considered competent operators of such machines. He stated that the fracture of the slew pivot post appeared to be a fairly clean break across the face of the post. Mr Lemon agreed that if there was a pre‑existing crack it would have been covered with grease and would not have been visible to the naked eye prior to the fracture.
Robert Ernest McGread
Mr McGread at the relevant time was the sealed storage inspector for the third defendant. He attended the Kulin bin the morning following the accident, and Mr O'Callaghan and Mr Lemon were onsite. Mr McGread climbed on to the boom of the cherrypicker and examined the roof trusses but was unable to find any evidence of impact damage. He examined the fracture surface of the slew pivot post which appeared to him to be a fairly clean break with no obvious signs of ageing, or grease marks indicative of ageing. He stated "I don't recall that there were any old cracks around there. I think that would have been evident". Mr McGread also took some photographs of the cherrypicker, which appear to have been misplaced. He stated that the servicing of the third defendant's equipment including the cherrypicker, was carried out by Alan Sowry of Access & Allied Services. He stated that there was a complete overhaul of the machines between seasons, and additionally they would be serviced if any problems were encountered. He was not aware of any prior faults or failures of a slew pivot post in this particular type of equipment. Mr McGread indicated that he was keen to arrange metallurgical examination of the slew pivot post, and it would be surprising indeed if he had not made a close visual inspection of the fracture surface at the time of his inspection.
William Jack Apgar
Mr Apgar, a forensic engineer with a Masters degree in civil engineering, has particular expertise as a mechanical design engineer. He appears to have been engaged by the plaintiff in December 2000 to advise on the possible cause of the failure of the slew pivot post; his investigation unfortunately being limited to the examination of the photographic material. His preliminary view was that it looked like a brittle type failure which would either indicate a fatigue failure or something seriously wrong with the metallurgy. On further consideration he stated that he had seen this particular type of failure before, and suspected a bad weld. He concluded from the photographs that there was evidence of a circumferential crack which was probably initiated by an improper weld procedure, there being a fillet weld around the base of the post holding plate. He disagreed with the evidence given by Mr Lemon that the break occurred at the top level of the plate, stating that the photographs quite clearly indicated that the fracture surface was below plate level.
Mr Apgar arranged a 400 per cent magnification of several of the photographs which he stated demonstrated that both fracture faces mirrored each other around the fracture circumference, suggesting that the features existed before the fracture occurred. He described the enlargement procedure as being high precision photocopying, and acknowledged that it was difficult to get detail from the photocopy photographs, and that there was a danger of an artefact resulting from the photography process. Mr Apgar stated that there was clear photographic evidence of a quite deep circumferential crack with the ingress of grease all the way around the shaft, which was overwhelming evidence that the welding procedure omitted post‑weld heat treatment. He stated that the uniform colour of the rest of the fracture, and the absence of areas of rust, suggested that the circumferential crack had not been there very long. It was Mr Apgar's view that following the welding of the plate to the slew pivot post, non‑destructive testing by way of radiological examination was appropriate to assess the integrity of the weld, and the post at the point at which the plate had been welded.
When asked to comment on the likelihood of the slew pivot post fracturing on basket cage impact, Mr Apgar stated that unless there was a pre‑existing crack the post would be likely to bend, and he did not consider that the photographic evidence suggested ductility, although he acknowledged the shortcomings of the photographs for making such an assessment.
Mr Apgar agreed with the other experts that the safety factor in the steel pivot post was quite high, and that it would only need about a quarter of the post diameter to support the load for a short time. Having expressed a view indicating the advisability of periodical non‑destructive testing, Mr Apgar did state that if the slew pivot post was properly designed and treated, it should have an infinite life. It seemed that he had based his general opinion (inter alia) on an assumption that there had been a weld of the plate to the slew pivot post in about 1991.
Mr Apgar was referred to AS2550.10 promulgated in 1994 (Exhibit P6.1) which specified a complete strip down of a cherrypicker after 10 years operating, and thereafter at five yearly intervals.
In cross‑examination Mr Apgar was referred to AS2550.1 1993 (Exhibit P6.2) which provided for the supplementing of visual examination by non‑destructive examination as considered necessary by a competent person.
During cross-examination by counsel for the third defendant, Mr Apgar expressed confidence in his opinion that the fracture resulted from a pre‑existing fatigue crack. He confirmed that he was basing his theory upon an assumption that the slew pivot post had been improperly welded to the support plate in 1991 causing a circumferential shrinkage crack which could propagate as a fatigue crack at a relatively low stress level. On the basis that there had been no welding carried out in 1991, Mr Apgar was prepared to accept that the fracture could have resulted from a manufacturing fault. He was referred to various reports written by him, the first of which dated 17 January 2001 contained the comment:
"The strong indication is that substandard repairs and/or undetected damage may have contributed to or caused the failure. However, without the actual components it would be impossible to prove this."
He stated however that with further information and the benefit of the photographic enlargements, he had come to the conclusion that a bad weld created a shrinkage crack, producing the ultimate failure.
Troy Johnathan Alexander
Mr Alexander was working with the plaintiff at the time of the accident. He stated that having finished spraying one bay he drove the cherrypicker underneath a truss and was in the process of raising the boom when the basket cage broke off. He denied that the basket cage made contact with any part of the bin immediately before or at any time prior to the accident, although he pointed out that the basket cage would brush up against parts of the bin structure from time to time. He felt that the basket cage was about 3 to 4m from the ground after the accident.
Mr Alexander stated that he was present the following morning when Mr Lemon examined the fracture face of the slew pivot post, and his recollection was that it had an oil and dirt grease ring around the perimeter which looked like it had been there for some time.
In cross-examination he stated that he did not inspect the pivot post, but did observe oil and grease on the inside, and said:
"I just saying that I seen the pin and then I seen a lot of grease. I mean, that was eight years ago. I'm not an expert on those pins and that."
Meaghan Jane Edmondson
Ms Edmondson, a medical typist in a radiology practice, has been living on a de facto basis with the plaintiff since approximately 1990. She collected him from the Narrogin Hospital following the accident, and during the trip back to Perth he was complaining of enormous pain. She claimed that it was necessary to "mother" the plaintiff for at least three to four months post‑accident including bathing and dressing him, and taking him to and from medical appointments. She stated that when he returned to work he was still in a lot of pain, and was complaining that he was finding it difficult to breathe, and of burning sensations in his back causing difficulty with bending and lifting. Ms Edmondson stated that she left the plaintiff in June 1997 because of the effect of his injuries on his personality, but they resumed cohabitation in January 1998 following a meeting at a friend's house, when their second child was conceived. Following resumption of the relationship she persuaded the plaintiff to have an MRI examination. She stated that as a result of his accident caused injuries the plaintiff was significantly disabled. I formed the distinct impression that Ms Edmondson was exaggerating the extent of the plaintiff's complaints to her, and the limitation on his domestic activities, and I place no reliance on her evidence.
Barrie Stephen Slinger
Mr Slinger, a consultant spinal surgeon, examined the plaintiff on 7 February 2000 issuing a report dated 8 February 2000 (Exhibit P7.1) and reviewed him on 5 January 2001 issuing a report dated 9 January 2001 (Exhibit P7.2).
In the first report Mr Slinger noted the plaintiff's complaint of continuing symptoms in the mid‑back corresponding to the level of the lower sternum, with an exacerbation of symptoms occurring at about Christmas 1998. Mr Slinger also noted a complaint of cervical symptoms commencing six months post‑accident, and lumbar symptoms commencing 12 months post‑accident. He recorded the domestic duties which the plaintiff acknowledged performing, which appear inconsistent with Ms Edmondson's evidence. Mr Slinger reported that the plaintiff moved without obvious problems, and that examination failed to reveal any objective clinical evidence of incapacity. He concluded that the plaintiff had sustained a soft tissue injury to the thoracic spine which might have been associated with disc herniation. He was unable to relate the cervical or lumbar symptoms to the accident. He accepted (based on the subjective complaints) that the plaintiff was unfit to engage in heavy physical activity, but considered he could perform work of a lighter nature avoiding heavy lifting (weights above 20kg), and bending.
In the report of 9 January 2001 Mr Slinger referred to the fact the plaintiff claimed to have experienced an increase in the severity of his symptoms, but again on examination there was little objective clinical evidence of difficulty, and there was no change in the prognosis.
In evidence‑in‑chief he agreed that Dr Henderson's radiological report raised the possibility of a crush injury at T11 but felt that there was no way of knowing whether that was the case, and considered it irrelevant to his diagnosis.
In cross‑examination Mr Slinger indicated that one expected gradual resolution of symptoms with a soft tissue injury, and in the absence of degenerative changes did not expect an increase of symptoms following gradual resolution. Mr Slinger made it clear that his opinion of the plaintiff's work capacity was based upon his subjective complaints, and on that basis the incapacity was related to the thoracic spine, and particularly to the T6/7 area. Mr Slinger stated that the MRI scan indicated possible herniations at T5/6, T6/7 and T7/8.
Terrence Phillip O'Callaghan
At all material times Mr O'Callaghan was employed by the first defendant. He visited the Kulin bin the day after the accident and examined the fractured surface of the slew pivot post which he felt had traces of either oil, grease and/or dirt around the periphery of the shaft. He stated that it varied in depth of penetration, in the deeper sections being up to 5mm from the circumference, and that it was depicted in the photographs (Exhibit 3). He could not see any damage to the basket cage consistent with it having impacted with any part of the bin. He stated that following a period of time off work immediately post‑accident, the plaintiff returned on light duties for a period of about four months, then returning to full duties and going to the country as often as required. When his attention was drawn to the plaintiff's post‑accident overtime work records, he stated that he would be very surprised if the plaintiff would have done overtime if he was on light duties. Mr O'Callaghan confirmed that the cherrypickers used by the first defendant were provided, serviced, and maintained by the third defendant.
John Kingston Ker
Mr Ker, a consultant physician in rehabilitation medicine, saw the plaintiff on 13 July 1998 and issued a report dated 28 August 1998 (Exhibit P9.1), and reviewed him on 17 May 1999 and issued a report bearing that date (Exhibit P9.2).
In his report of 28 August 1998 Mr Ker referred to the plaintiff's complainant of consistent pain predominantly at the thoraco‑lumbar junction, radiating up and down the spine with activity. He reported that physical examination did not demonstrate any immediate distress, and there was little in the way of objective evidence of difficulty. In particular rotational movements were full and free. Mr Ker concluded that the plaintiff had sustained an injury to his thoraco‑lumbar spine and recommended a physically based support regime. He accepted that the plaintiff could not return to his pre‑accident employment, and suggested vocational retraining because of his opinion that in time he would be able to undertake a variety of vocational activities including that of a storeman. He reported: "To date it is not proved possible to identify any specific evidence spinal column pathological injury".
In the report of 17 May 1999 he referred to the plaintiff's complaints of modest mid and lower thoracic discomfort associated with radiation of pain to the left side of the chest, and occasional low back pain with stiffness and muscle spasm, and neck pain. Mr Ker reported that the plaintiff had no difficulty dressing or undressing, and little in the way of objective evidence of spinal impairment. He again stated that his diagnosis was of an injury primarily to the mid‑thoracic spine of a musculo‑ligamentous character, there being no evidence of bone or disc abnormality. He expressed the view that with continued maintenance of a programme of symptomatic exercise and stretching, the plaintiff's symptoms would remain under satisfactory control.
Mr Ker's consultations and reports preceded the MRI scan, which he stated demonstrated that some of the thoracic discs were not normal. He stated that the alleged disc herniation would be of clinical significance if the plaintiff's spinal tenderness always corresponded to the site of the 5th, 6th and 7th thoracic vertebra. He confirmed his view that exercise was an appropriate way of helping the plaintiff maximise his function. Mr Ker made it clear that his prognosis was influenced by the plaintiff's subjective complaints, and the fact that he had not returned to work.
In cross‑examination he agreed that there was no reference in his first report of cervical symptoms, the problem being principally in the thoraco‑lumbar area; whereas at the time of the second report symptoms were being experienced in the mid and lower thoracic area, with occasional low back pain and cervical symptoms. Mr Ker expressed the view that sedentary activity was inconsistent with effective spinal rehabilitation and fitness.
Jack Edelman
Dr Edelman, a specialist rheumatologist, examined the plaintiff on 20 February 1998, 6 March 1998 and 5 February 2001, and issued reports on the date of each consultation. Those reports were admitted in evidence (Exhibits P10.1 to P10.3).
At the first consultation Dr Edelman obtained a history of gradually worsening thoracic discomfort identified by the plaintiff as being in the T8/9 region, but apart from some tenderness in the T8/9 facet joint area was unable to elicit any other signs or symptoms.
In his report of 5 February 2001 Dr Edelman referred to the MRI scan which he considered showed degenerative changes with lateral disc protrusion at T5/6 and T7/8. He concluded that the plaintiff was not fit to return to his pre‑accident occupation and needed to be rehabilitated into lighter vocational activity.
In evidence Dr Edelman accepted that the plaintiff had a vocational capacity excluding activities which required excessive bending or heavy lifting.
I formed the impression that Dr Edelman did not have a great deal of confidence in his diagnosis, and that necessarily affects the value of his prognosis.
George Tse Huai Wong
The neurosurgeon Mr Wong saw the plaintiff on 1 June 2000 and issued a report bearing that date (Exhibit P11) in which he referred to the plaintiff's presenting complaints as being of mid‑thoracic pain, although there is also reference to cervical and low back pain. Mr Wong noticed tenderness in the mid‑thoracic region, with an absence of neurological signs. Radiological examination was unrewarding save for a suggestion on MRI scan of a right parasagittal disc herniation at T6/7. Based on the plaintiff's complaints of mid‑thoracic pain, Mr Wong concluded that he was permanently unfit to return to heavy physical work involving repetitive bending and lifting. He was of the view that the plaintiff's pain state would continue, based in part at least on the past history of the pain state. He indicated that the plaintiff had expressed the view that he was fit to work as a TV repair man, and could work full‑time at that occupation if work was available.
In cross‑examination Mr Wong agreed that there was no suggestion on examination of any neurological compromise. He stated that his experience was that it was extremely rare for people to get significant problems from a thoracic spinal injury, and agreed that it was probable that the small disc herniation demonstrated by MRI pre‑existed the accident. Whether it did or not, he was of the view that disc herniation in the thoracic spine was "a red herring", considering that the exact origin of the plaintiff's pain was uncertain, but most likely had a soft tissue basis.
In the final analysis he seemed to be saying that once the litigation was over and the plaintiff's attention was not directed to his symptoms, his function would improve.
Bryant Stokes
The plaintiff's legal advisers arranged for him to be reviewed by a senior neurosurgeon, Mr Stokes, who saw him on 3 August 2000 and issued a report dated 8 August 2000 which was received in evidence pursuant to s 79C of the Evidence Act (Exhibit P13). The report outlined the history of the accident and the plaintiff's graduated return to work. It is apparent that the plaintiff advised Mr Stokes that by the end of 1995 he was working reasonably actively but experiencing persistent back pain through to the end of 1997, and a lot of girdle pain from the middle of his back running around his chest wall bilaterally in early 1998, which was "unpleasant in nature". The report also makes reference to some mild neck discomfort of little consequence. Mr Stokes reported that clinical examination was relatively unrewarding save that there was tenderness posteriorly in the D6 (thoracic) region . Mr Stokes reported that the MRI scan showed degenerative changes at D5/6 and D7/8 with lateral disc protrusion at both levels, and he stated that it was difficult to confirm the presence of any previous crush fractures. It was Mr Stokes' opinion that the plaintiff had suffered an injury to his thoracic spine and that most of his symptoms were coming from the disc degenerative changes at D5/6 and D6/7, which changes he felt might have been produced or aggravated by the accident. He considered that there was a disability of the order of 7 per cent of total body function, and 15 to 20 per cent of thoracic spine function.
Thomas Henry Burbidge
Mr Burbidge, the proprietor of Mundaring TV & Video Repairs, confirmed that the plaintiff had been working with him as a CRS assessment for about a year and a half to assess whether he could be employed in domestic electronics. He stated that the plaintiff was very keen to pursue that vocation, and his assessment was that it was a realistic proposition, although he appeared to be pessimistic about the long term prospects for people in that type of employment.
Edmund Henry Olszewski
Dr Olszewski, the plaintiff's general practitioner, saw him several days after the accident and issued a report dated 9 August 2000 (Exhibit P12). In that report he expressed the view that the plaintiff had sustained soft tissue injuries to his neck and mid‑back, giving rise to neck discomfort and spasm on a daily basis. Dr Olszewski reported that the plaintiff was permanently unfit to return to his pre‑accident work, and because of his continuing symptoms was not fit for manual duties.
In his evidence Dr Olszewski described the plaintiff's presenting complaints as pain in the cervical, thoracic, and lumbar spine, resulting in a limited range of movement in the neck and back. He was referred to his progress medical certificate dated 10 October 1994 in which he noted a diagnosis of neck and back strain. He stated that at the time of the progress certificate dated 21 October 1994 he had diagnosed a fractured lower rib and sacroiliac strain, and it is to be noted that his progress medical certificate dated 28 October 1994 refers to a fracture of the right ninth rib and low back and sacroiliac pain. Dr Olszewski localised the low back pain to the L3/4 area. It seems that during October 1994 he did not record mid‑back or thoracic pain, although he was reluctant to accept that position. He confirmed that in a progress certificate dated 17 February 1995 he recommended a graded return to work. In a progress certificate dated 30 March 1995 he recorded that the plaintiff was continuing with full‑time work and that the main problem was neck discomfort. Dr Olszewski stated that he referred the plaintiff for physiotherapy to his mid‑back and neck, and that physiotherapy appears to have been initiated as early as 13 October 1994, which is unusual. He stated that he reviewed the plaintiff regularly until early 1997, and that he had a consistent presentation.
Dr Olszewski's attention was drawn to the final medical certificate issued by him on 14 March 1997 in which he certified the plaintiff had wholly recovered and was fit for normal duties provided that he was careful with lifting. Somewhat surprisingly his notes do not seem to record the consultation predating the certificate. He agreed that on 20 August 1997 he issued a first medical certificate certifying that the plaintiff hurt his upper back moving six 200lt drums from a pallet in the course of his employment on 15 August 1997, resulting in soreness and spasm in the upper back. In the result he was not prepared to accept that this was a new injury, commenting that he had perhaps been precipitous in issuing the final certificate. Interestingly it appears that the plaintiff told him that the drums he was lifting from the pallet were heavy.
On 19 January 1998 Dr Olszewski issued a progress certificate stating that the plaintiff was tender in the T3/T6 area and required further time off. His progress certificate of 20 February 1998 referred to a radiological suggestion that there was a crush fracture at T11 which he related to the original accident.
In cross‑examination Dr Olszewski stated that the plaintiff complained of thoracic symptoms at about the T6 to T9 level. He stated that he found it difficult to be certain of the exact cause of the plaintiff's symptoms, although he had consistently noted the symptoms to be in the same area, coinciding with the MRI findings. When it was suggested to Dr Olszewski that complaints of thoracic symptoms really commenced following the lifting of a machine from the back of a utility as referred to in the progress certificate of 31 August 1995 he stated that there had been earlier thoracic problems, although he had not recorded them. He stated particularly that the plaintiff had always been complaining of problems at the T11 area, although this was not documented. He agreed that when he issued the first medical certificate on 20 August 1997 he believed it related to a fresh injury arising from the shifting of the heavy drums, which the plaintiff had indicated were full drums.
Chong Ngai Chew
Dr Chew, a mechanical engineer, has considerable experience in the fracture of steel and matters relating thereto, and was engaged by the first defendant to investigate the cause of the accident. His reports dated 9 January and 6 February 2001 were received in evidence (Exhibits D.1 & D.2). Dr Chew, as with the other experts, was obliged to make his assessment from the photocopy photographs.
In his report of 9 January 2001 Dr Chew expressed the view that it was not uncommon for a straight steel pin similar to the slew pivot post to fracture as a result of fatigue failure, particularly as the configuration of the basket mounting would result in bending stresses where the pin passed through the basket's mounting sleeve. He stated that fatigue cracks can develop in steel material at grossed stressed levels well below the steel's yield stress. Dr Chew stated that in addition to the possible stress concentration material defect, machine grooves or marks, wear grooves, and corrosion pits could lead to fracture, and whether or not any of those features were present could only be determined by examining the fracture face microscopically. He appeared to be of the view that it was not possible to determine from the photocopy photographs whether or not there was a fatigue crack. He agreed that the detection of insipient fatigue cracks in a slew pivot post would generally only be detected by non‑destructive testing methods. Essentially his view was that "without having examined the fracture face of the pin as part of a fade out analysis, it is highly speculative to say that fatigue crack does not appear to be a factor in this case".
In his report of 6 February 2001 Dr Chew was prepared to accept Mr Apgar's view that if welding repairs had been carried out to the slew pivot post in 1991 there would be a high risk of fatigue cracks developing in the weld.
In evidence‑in‑chief Dr Chew emphasised that the photos were too small to enable any meaningful assessment to be made from them. He stated that there were three hypotheses he had considered being:
1.a fatigue crack which had developed and grown over a period of time to the extent where the load carrying capacity of the post was reduced such that it would fracture due to overload;
2.an external force applied to the basket, causing the pin to break in the absence of a fatigue crack;
3.a fatigue crack which had not grown sufficiently to cause the post to fail under normal operating conditions, but which did so upon impact.
He stated that on the available evidence he was unable to decide which of the three was the most probable.
Dr Chew was referred to the photographic enlargements (Exhibit 3) and an additional photograph enlargement (Exhibit D3). He stated that the enlargements demonstrated what appeared to be areas of discolouration, suggestive of pre‑existing cracks. In the event he seemed to favour the probability that the photographs demonstrated pre‑existing cracks. As already indicated Dr Chew stated that if in fact there were cracks on the slew post which were weld repaired in 1991, then there would have been a high risk of fatigue cracks developing from either some defect in the weld itself, or the heat affected zone around the weld. This made it important that non‑destructive testing was carried out post‑weld to ensure the integrity of the weld. Dr Chew calculated that in the absence of any pre‑existing fatigue crack it would take an impact force of somewhere between 600 to 1,000kg to fracture the pin. He had difficulty accepting that the circumferential circles drawn by Mr Apgar correctly identified the circumference of the slew pivot post.
Debbie Ann Larson
Ms Larson, an experienced labour market economist, prepared five reports concerning the availability of work and the likely weekly earnings from the employment. Her reports demonstrated the following:
Employment Availability Likely earnings
Foam applicator/ Competitive $ 634.24
Industrial spray painter
Building insulation installer Limited $ 674.29
TV & Video repairers Competitive $ 675.75
Light store person Competitive $ 554.73
Retail sales Competitive - Good $ 592.48
Console operators Competitive $ 460.08
Carpark attendant Limited to Competitive $ 545.31
John Athol Howson
Mr Howson was employed by the first defendant as supervisor of its urethane division from 1992 to 1999, having previously been employed by Bains Harding Industries. He stated that subsequent to the accident the plaintiff commenced a graded return to duties in early 1995, initially undertaking light duties including maintenance work on equipment, before being eased back into urethane spraying. Mr Howson stated that initially the plaintiff was not required to engage in spraying duties all day, but that within a few months he returned to full‑time duties and successfully remained on such duties until early 1998 save for the last couple of months when he began taking time off because of back problems. He confirmed that urethane spraying was strenuous work. Mr Howson stated that at about the time the plaintiff left the first defendant's employ, work had dropped right off.
Harold Raymond Schaeffer
Mr Schaeffer, a consultant neurosurgeon, examined the plaintiff on 27 April and 4 December 2000 and issued reports dated 3 May 2000 (Exhibit D3.1) and 7 December 2000 (Exhibit D3.2).
In the first report he referred to the fact that the plaintiff was complaining of constant pain in the T7/8 area, and pain in the cervical and lumbar region. He reported that on physical examination the plaintiff presented as a well built man with no indication of restriction or discomfort, and an excellent range of mobility of all segments of the spinal column. Mr Schaeffer considered that the MRI scan performed on the 24 January 2000 suggested a right para central disc protrusion at T7/8 and a smaller right para central disc protrusion at T6/7, although the spinal cord was normal with no evidence of compression. He considered it unlikely that the disc protrusions related to the accident, stating that if the plaintiff had ruptured one or more thoracic discs in the accident, he would have expected a significant neurological deficit. Mr Schaeffer considered that there was a discrepancy between the plaintiff's prolonged subjective symptomatology, and the lack of objective clinical signs. He did not accept that there was evidence of a discogenic injury consequent upon the accident. His opinion was that the plaintiff had made a total recovery from the accident and had the capacity to return to his pre‑accident employment.
In his report of 7 December 2000 Mr Schaeffer stated that at review on 4 December 2000 the plaintiff was more cautious in his physical movements. Mr Schaeffer noted some inconsistencies on clinical testing, and confirmed his earlier diagnosis and prognosis.
He confirmed the contents of his reports in evidence.
In cross‑examination Mr Schaeffer pointed out that the mid‑thoracic spine was a particularly stable part of the spinal column that was not subject to excessive movement, and consequently he did not accept that if it had been subject to trauma in the accident it would have given rise to long term difficulty. When it was put to Mr Schaeffer that his conclusions were based on the absence of objective signs and that he had not taken an account of the subjective complaints, he stated:
"Objective signs are the more important simply because they enable one to actually see the disability. I accept that one can have some subjective symptoms which are not sufficiently severe to produce objective signs so you know the absence of objective signs doesn't always mean that the patient has no symptoms at all but it’s a good indicator that any symptoms the patient has are not likely to be particularly severe symptoms."
Leonard Alan Sowry
Mr Sowry, the proprietor of Access & Allied Services, is primarily engaged in maintenance of aerial lift equipment including cherrypickers. He gave evidence that he had been engaged in machinery maintenance for many years, and had for a period of time been engaged in the sale of aerial lift equipment. Coincidentally he sold the unit at the centre of this controversy to the third defendant in 1984. The machine had been imported from New Zealand and was checked by the importing company Clarklift and the Department of Occupational Health Safety & Welfare (DOHSW) before receiving a worthiness certificate and going into service with the third defendant. The DOHSW certificate dated 24 July 1994 is Exhibit E.
Mr Sowry stated that after going into operation the machine was required to undergo a compulsory annual inspection by DOHSW until 1993 when the requirement changed to biannual. He advised that he carried out an annual service of the machine at the third defendant's premises in Midland, as well as attending to any operational repairs and maintenance. He stated that prior to the accident he had never heard of a fracture occurring to a slew pivot post. He indicated that in December 1991 some repairs were carried out to the basket support of the cherrypicker, but denied that repairs were carried out to the slew pivot post, producing a letter to the Department of Labour & Industry dated 11 December 1991 relating to the repair work (Exhibit F). He also confirmed that 12 months before the accident further repairs were carried out when the old basket cage on the unit was removed and replaced. At that time Mr Sowry did a thorough overhaul of the machine including washing down the slew pivot post with petrol and visually inspecting it to confirm its integrity. It was then regreased before fitting the new basket.
Mr Sowry also produced a slew pivot post similar to the one which fractured in the accident (Exhibit G). He confirmed that although the DOHSW inspection requirement became biannual, he continued to service the machine on an annual basis, and had serviced it on 22 September 1994 at Kondinin.
Following the accident Mr Sowry was contacted by the third defendant and met Mr McGread at Kulin where he inspected the machine. Mr Sowry observed marks on the rear of the basket suggesting to him that it had been in contact with some of the bin trusses. He also inspected the fracture face of the slew pivot post and claimed that it was a clean shear, there being no evidence of discolouration suggesting a pre‑existing fatigue crack. He stated that there was no sign of grease on the fracture surface, and his evidence suggests that he doubted the accuracy or usefulness of the information portrayed by the photographs.
In cross‑examination by counsel for the first defendant, Mr Sowry stated that the third defendant did not give him any specific instructions concerning service of the machine, but that in performing the annual service he would "go right through the machine and repair anything that is necessary". He stated that his service was more extensive than that outlined in a service manual. He expressed the view that the slew pivot post did not require inspection for a period of 10 years after the machine went into service. Mr Sowry stated that it was possible to examine the slew pivot post for wear without removing the basket cage, and said he did not carry out non‑destructive testing because he was of the view that the slew pivot post should not break. He confirmed that the fractured slew pivot post was retained at Midland by the third defendant for approximately three years post‑accident. He was adamant that the fracture was a clean break, there being no oxidisation around the perimeter to suggest there was any earlier cracking.
In cross‑examination by the plaintiff's counsel, Mr Sowry was referred to an invoice dated 24 April 1991 being part of Exhibit F in which there was a reference to "reinforced basket slewing bracket". His attention was also drawn to the invoice dated 9 December 1991 wherein he had noted "basket damage; removed basket, removed slewing post and head. Delivered slewing post and head for template for new post. Picked up new slew post and fitted to unit". When it was suggested to him that it necessarily followed that a new slew pivot post had been fabricated, he denied that was the case, although he appeared to be a little less than confident in his denial. After careful thought, however, he confidently asserted that the reference in the documentation to slew post was an error, and should have referred to basket support.
Martin Eric Simms
Mr Simms, a chartered consulting engineer, was engaged by the third defendant to report on the cause of the accident. He was shown the enlarged photographs (Exhibit 3) and expressed the view that they were of little use in making an assessment because the enlargement process degraded the image, which was in any event suspect. In the event he was firm in his view that it was impossible to make any informed judgment about the cause of the accident from the photographic evidence. He disputed Mr Apgar's view concerning fatigue cracking, stating that the alleged fatigue points identified by Mr Apgar were on the wrong side of the shaft for a fatigue failure, fatigue characteristically occurring on the tension rather than compression side of the shaft. He stated that Mr Apgar's identification points A, B, C and F were on the compressive side. He considered that the features identified by Mr Apgar were features of final failure rather than fatigue.
Mr Simms also expressed the view that the shaft would have had to have fatigued for at least a third of the shaft diameter, and possibly half the shaft diameter, before it would have snapped off spontaneously. Although he was not prepared to accept that a conclusion could be reached from the photographs that there were grease marks on the fracture surface, Mr Simms postulated a number of circumstances whereby grease could have penetrated the fracture surface subsequent to fracture. He expressed the opinion that the most probable cause of the fracture was that the pin had in some way become severely overloaded, and fractured spontaneously. He was prepared to acknowledge the possibility of some small pre‑existing crack which helped initiate the fracture, but stated that conclusion could not be confidently drawn from the photographic material.
Mr Simms' reports dated 24 October, 21 November 2000 and 24 January 2001 were tendered (Exhibit 5.1 - .3).
In cross-examination Mr Simms agreed that a force of 600 - 1000kg would be required to fracture the slew pivot post. He stated that if there was a pre‑existing circumferential crack of the slew pivot post, it was unlikely to have been visible to the naked eye.
In cross‑examination by counsel for the plaintiff, Mr Simms stated that if the basket cage had not been subject to the application of external force prior to the fracture, the most likely explanation would have been fatigue failure.
Ratan Cavashah Edibam
Mr Edibam, a senior consultant orthopaedic surgeon, reviewed the plaintiff on 1 March 2000 and issued a report dated 8 March 2000 (Exhibit D4). Mr Edibam observed in the report that "Mr Dhu's ongoing symptoms are mid to low thoracic back pain (which is his dominant pain), neck pain and numbness and tingling in the ring and little fingers of his left hand. He also experiences ongoing headaches and low back ache". He reported that the plaintiff was well built and displayed no evidence of movement difficulties during interview. Mr Edibam reported that the only demonstrated abnormality was the presence of two significant disc protrusions in the thoracic spine at T6/7 and T7/8, and was not sure as to whether they were incidental findings of no clinical significance, or causative of ongoing thoracic back pain. He stated that thoracic spinal problems were generally regarded as coming within the neurosurgical discipline. He reported that he was unable to explain the plaintiff's ongoing symptoms in the cervical and lumbar spine, and was not sure as to whether the demonstrated pathology of disc protrusion in the thoracic spine was symptomatic or merely an incidental finding.
In his evidence‑in‑chief Mr Edibam stated that disc protrusions in the thoracic spine were more likely to cause gross neurological deficit because of the restricted access for the spinal cord in the thoracic canal.
He expressed the view that issues pertaining to the thoracic spine were more appropriately addressed by neurosurgeons, and stated that provided the thoracic spinal pathology was excluded as a cause of ongoing pain he could see no reason why the plaintiff could not return to his pre‑accident occupation. Mr Edibam made the point that it was not uncommon since the introduction of MRI scanning to observe the presence of thoracic disc protrusions in patients who were asymptomatic.
Findings of fact
(a) The nature and cause of the fracture
Mr Lemon's evidence was to the effect that his impression was that grease on the fracture surface suggested that there was a pre‑existing circumferential crack which would not have been visible to the naked eye prior to complete failure.
Mr McGread considered that there had been a fairly clean break with no obvious signs of ageing or grease marks indicative of ageing.
Mr Alexander gave some rather vague evidence of an impression he formed of oil and grease around the perimeter of the fracture surface.
Mr O'Callaghan gave evidence that there were traces of either oil, grease and/or dirt around the periphery of the post.
Mr Sowry's evidence was that the fracture surface was clean with no evidence of discolouration suggesting a pre‑existing fatigue crack.
The experts Mr Apgar, Dr Chew and Mr Simms were necessarily obliged to draw conclusions from an examination of photocopy photographs and I have no hesitation in accepting Mr Simms' evidence that they were of little use in making an assessment, because of the reasons advanced by him.
Mr Apgar concluded from an examination of the photographs that there was evidence of a circumferential crack, but to some extent it appears that he was influenced by his understanding that there had been a fluid weld around the base of the post holding the plate in about 1991, and I am satisfied this was not the case. Although Mr Sowry's documentary record suggests that a new slew pivot post was fitted to the unit - "basket damage. Removed basket, removed slewing post and head. Delivered slewing post and head for template of new post. Picked up new slew post and fitted to unit. Welded brackets for operating console support. Drilled holes for console. Fitted basket slewing ram. Welded cracks in basket framework. Repaired basket door. Fitted control console to slew post, fitted basket to slew post" (Exhibit H - invoice 654 dated 9 December 1991) that is inconsistent with the information contained in Exhibit F which indicates that the weld repairs were to the base area of the rotator assembly. It is clear that the control console is fitted to the rotator assembly - not to the slew post, and that suggests that Mr Sowry was in fact referring to the rotator assembly frame that fits over the slew post and not to the slew post itself when he noted that he had fitted the control console to the slew post. It would also seem unlikely that a template would be necessary or useful in fabricating a slew post, but might well be necessary to fabricate the mounting bracket on the rotator assembly.
Dr Chew seemed to favour the probability that there was a pre‑existing circumferential crack, although he acknowledged the shortcomings of the photocopy photographs for reaching such a conclusion. He also expressed the view that it was not uncommon for a straight steel pin similar to the slew pivot post to fracture as a result of fatigue failure.
Mr Simms did not agree with Mr Apgar's view as to pre‑existing fatigue cracking. He did not accept that it was possible to conclude from the photographs that there were grease marks on the fracture surface, and pointed out that in any event there were circumstances where grease could penetrate the fracture surface subsequent to fracture. He acknowledged the possibility of a pre‑existing circumferential crack, but considered that if it existed it was unlikely to have been detectable by visual inspection.
On a consideration of the whole of the evidence I am not persuaded that there was a pre‑existing circumferential crack of the slew pivot post prior to the ultimate failure. I am sure that each of the lay witnesses were doing their best to accurately recall their impressions of the fracture surface of the slew pivot post, but were somewhat disadvantaged by the passage of time. The views of the experts were inferential and the conclusions of each of them necessarily suffered because they were obliged to make their assessments on the basis of the photographic evidence, due to the lack of opportunity to examine the fractured slew pivot post. As I have already indicated the photographic evidence was an unsatisfactory medium for the purpose of making an accurate assessment of the cause of the fracture. In the result I am not persuaded that the facts "form a reasonable basis for a definite conclusion affirmatively drawn" as to the precise nature and cause of the fracture (Jones v Dunkel (1959) 101 CLR 298). There is no preponderance of evidence pointing to a particular cause, making the identification of the cause speculative. It probably matters little in a resolution of this controversy because the burden of the evidence is that if there was a pre‑existing circumferential crack it was unlikely to have been detectable by visual inspection and its identification would have required non‑destructive testing. The evidence demonstrated that the slew pivot post should have an infinite life, and it cannot therefore be said that there was a duty to carry out such testing.
For reasons unidentified by the evidence, the slew pivot post fractured, and the issue is whether the fracture and resultant accident is attributable to a breach of duty by either the first or third defendant.
As Lord Atkin identified with such clarity in Donoghue v Stephenson (1932) AC 562 at 579 in order to support an action for damages for negligence a plaintiff must show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury.
In Jones v Dunkel (1959) 101 CLR 298 at 304 Dixon CJ stated:
"In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind."
The breach of duty alleged against each of the defendants is that it failed to properly check and maintain the cherrypicker to ensure that it was in good working order; and in particular failed to subject it to a major inspection involving a strip down and visual inspection of components and if necessary non‑destructive testing to guard against the possibility of failure of components due to fatigue cracking.
The third defendant as owner of the cherrypicker owed a duty simplicita to the plaintiff to take reasonable care to ensure that the cherrypicker was in good working order and safe for the purpose for which it was required. It discharged that duty by having the cherrypicker serviced annually by Access & Allied Services, a firm experienced in such matters. It has not been established that visual inspection should or would have alerted the third defendant to the likelihood of a fracture of the slew pivot post occurring, nor does the evidence suggest that non‑destructive testing should have been undertaken and/or would have revealed the potential for fracture. The undisputed evidence is that there was no prior history of fracturing of a slew pivot post, and the evidence of Mr Apgar, which was not contested, was that it should have an infinite life. Having regard to the age of the cherrypicker the evidence does not establish that non‑destructive testing was necessary or appropriate.
The plaintiff has failed to identify fault on the part of the third defendant, and as was stated by Kirby J in Schellenberg v Tunnel Holdings Pty Limited (1999) 200 CLR 121 at 169 "The tort of negligence is fundamentally concerned with fault Donoghue v Stephenson (1932) AC 562 at 580. If that concern is forgotten, the law has lost its compass".
The first defendant was the plaintiff's employer and required him in the course of his employment to use the cherrypicker provided maintained and serviced by the third defendant. The evidence does not suggest that the first defendant had any reason to suppose other than that the cherrypicker was in good order and condition, and it is axiomatic from my findings in respect of the third defendant, that it was entitled to that view.
Kirby J identified in Schellenberg (supra) the ambit of an employer's liability in negligence as follows:
1.It is the duty of an employer at common law to take reasonable care to avoid exposing an employee to unnecessary risk of injury (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25). That duty includes the provision of a safe system of work; a safe place of work; and proper plant, equipment and appliances. The duty is not delegable. It is personal to the employer.
2.An employer is not an insurer of the safety of equipment. It does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But it owes a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration.
3.The duty remains that of the exercise of reasonable care, and is not one of strict liability.
4.The burden of establishing a claim in negligence against an employer rests on the employee throughout the proceedings and requires the proof of a preponderance of evidence in favour of the plaintiff's case.
In Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873 the Court enunciated the non‑delegable duty of an employer in these terms: "The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury - and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task".
Having regard to the fact that the cherrypicker was properly serviced and maintained by the third defendant, there is nothing in the evidence to suggest that the first defendant did not exercise reasonable care to avoid exposing the plaintiff to unnecessary risk of injury. There is nothing in the evidence to suggest that the fracture of the slew pivot post could have or should have been anticipated, or that it was incumbent on the first defendant to subject the cherrypicker to any further mechanical scrutiny than that which was regularly undertaken by the third defendant.
Quantum
Notwithstanding the view that I have taken on liability it is proper to make a provisional assessment of damages, and in that respect it is appropriate to state that I do not accept the plaintiff's evidence that he is disabled to the extent alleged by him. I believe that his response to the enquiry whether he had looked for work as a storeman, namely "why should I have to be a storeman" is revealing, and I am satisfied that he exaggerated the extent of his disability and/or perhaps for reasons unidentified, is reluctant to accept the extent of his recovery.
The absence of objective clinical evidence poses difficulty in assessing the nature and extent of the plaintiff's injuries because it necessarily follows as identified by all the specialists that to a large extent diagnostic and prognostic conclusions are based upon the plaintiff's objective complaints. Having regard to the view I formed of the plaintiff, those complaints are an unsatisfactory basis for medical assessment.
I accept Dr Olszewski's conclusion that in the accident the plaintiff sustained soft tissue injuries to his cervical and thoracic region together with bruises, abrasions and concussion. There can be no doubt that for some months post‑accident those injuries would have resulted in disabling symptoms, and resulted in him being unable to carry out his vocational duties from the date of the accident until February 1995 when he embarked upon a graded return to work. I am satisfied that he gradually returned to full duty, and do not accept his evidence that for a long period of time he essentially sat around doing nothing. I am, however, prepared to accept that he would have worked with a degree of discomfort, which gradually ameliorated. I am satisfied that by the time of the issue of the final medical certificate on 14 March 1997 the plaintiff had, as Dr Olszewski certified, "wholly recovered from effects of the disability" that conclusion being based upon the "history and examination". I am mindful of the fact that the final certificate referred to the necessity to be careful lifting, but that would seem to be very sensible and prudent advice for anyone, particularly if they had just recovered from injury. I am satisfied that the injury referred to in the first medical certificate dated 20 August 1997 was caused by the circumstances identified therein, namely the removal of heavy drums from a pallet, and was not a recurrence of the earlier problems.
Essentially there is little difference in the evidence of the various specialists. None of them identified any objective evidence of incapacity. Indeed examination generally indicated that the plaintiff moved without apparent difficulty or distress. The evidence of Mr Wong, Mr Schaeffer and Mr Edibam was to the effect that it was unusual for trauma to the mid thoracic area, save where it was of such consequence that it gave rise to paraplegia, to result in long term disability.
I am not satisfied on the evidence that the radiological appearances at T5/6, T6/7, T7/8 and T11 were accident caused, although I am prepared to accept that the trauma of the accident in combination with those radiological features was responsible for the production of symptoms which had substantially dissipated within a period of 12 months or thereabouts. I accept the evidence of Mr Schaeffer that as at the date of his first examination on 2 April 2000 the plaintiff had made a total recovery from the accident caused symptoms and had the capacity to return to his pre‑accident employment. That assessment accords with the absence of objective evidence of incapacity, and with the plaintiff's post‑accident work history including what I find to be his return to full duties. Importantly also it is not at variance with the clinical findings of the other specialists, although some of them were prepared to be more generous in their treatment of the plaintiff's subjective complaints.
It is my judgment that having regard to the nature and extent of the plaintiff's injuries hereinbefore referred to, the shock, pain, suffering and loss of amenities, the injuries amount to 12.5 per cent of a most extreme case. I therefore allow $28,125 by way of general damages.
I am satisfied that the plaintiff was totally incapacitated for employment from the date of the accident until February 1995 and thereafter partially incapacitated until 14 March 1997. During the period from the date of the accident until 14 March 1997 the plaintiff received workers' compensation, and as and by way of past economic loss is entitled to be awarded a sum equal to the gross amount thereof - see Fox v Wood (1981) 148 CLR 438. The evidence before me does not enable a determination of that amount and if necessary I can hear counsel thereon.
I am not satisfied that the plaintiff has had any reduction in his earning capacity referable to the accident since 14 March 1997.
The parties agreed the following amounts by way of special damages:
Statutory allowances $13,796.26
Chemist $ 872.45
Medical consultations $ 7,307.40
Hospital expenses $ 430.00
Miscellaneous expenses $ 2,019.71
Physiotherapy $ 2,751.70
Rehabilitation expenses $ 8,518.02
Travel $ 332.00
$33,551.54
There is a claim for further travelling expenses as outlined in the agreed minute, but having regard to my findings as to the extent and duration of the plaintiff's incapacity I make no allowance therefor.
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