Dunbar v Eli Eco Logic Australia Pty Ltd - [2001] WADC 146

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUNBAR -v- ELI ECO LOGIC AUSTRALIA PTY LTD [2001] WADC 146

CORAM: MARTINO DCJ

HEARD: 12-15 FEBRUARY 2001

DELIVERED : 22 JUNE 2001

FILE NO/S: CIV 4063 of 2000

BETWEEN: PETER MATTHEW FRANCIS DUNBAR
Plaintiff
AND
ELI ECO LOGIC AUSTRALIA PTY LTD
Defendant

Catchwords:

Negligence - Employer and employee - Contributory negligence - Damages - Personal injuries - Loss of earning capacity - Mitigation of loss

Legislation:

Nil

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr P E Jarman

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

Case(s) also cited:

Blight v Vagg & Anor, unreported; DCt of WA; Library No D970006; 16 January 1997
Blight v Vagg, unreported; FCt of WA; Library No 980551; 23 September 1998
Bowen v Tutte [1990] A Tort Rep 81-043
Commissioner for Railways v Halley (1978) 20 ALR 409
Commissioner for Railways v Ruprecht (1978) 142 CLR 563
Electric Power Transmission Pty Ltd v Cuiuli (1960) 104 CLR 177
Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt of WA; Library No 7914; 3 November 1989
Heather v Vita Pacific Ltd (1996) 6 Tas R 52
Jongen v CSR Ltd & Anor [1992] A Tort Rep 81-192
Kelly v Fletcher, unreported; FCt SCt of WA; Library No 970535; 22 November 1997
LeClerk v French, unreported; SCt of Tas; 24 December 1996
McLean v Tedman (1984) 155 CLR 306
Neill v NSW Fresh Food & Ice Pty Ltd (1962-1963) 108 CLR 362
Raimondo v State of South Australia (1979) 23 ALR 513
Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337
Smith v Robb, unreported; DCt of WA; Library No D970107; 11 April 1997
Steele v Stacey, unreported, DCt of WA; Library No 5038; 30 August 1996
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Thomas v O'Shea [1989] A Tort Rep 80-251
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40

MARTINO DCJ:

Introduction

The plaintiff claims damages for personal injuries alleged to have occurred on 11 December 1996 in the course of his employment with the defendant. The defendant denies liability, denies that the plaintiff suffered any injury, contends that any injury suffered by the plaintiff was caused or contributed to by his own negligence and that the plaintiff has failed to mitigate his loss.

The defendant's plant

In 1996 the defendant operated a plant in Kwinana which destroyed toxic waste such as polychlorinated biphenyls (PCBs) and organochlorides. The plaintiff was employed at the plant as a shift supervisor. He commenced that employment on 24 September 1996.
The defendant operated with two 12‑hour shifts so that its plant operated 24 hours a day. The toxins were destroyed in a large cylinder at high temperature under high pressure. The cylinder was called a reactor. It was mounted on a trailer and the trailer rested on a concrete pad approximately 40 metres by 60 metres in area.
The reactor was approximately five to six metres tall and had a conical bottom.
The process of destroying the toxins resulted in the production of carbon waste. This carbon collected in a grit pot which was at the bottom of the reactor. It was necessary for the waste that collected in the grit pot to be emptied from time to time. That was done by removing a flanged bottom on the grit pot. It then dropped to the ground and the carbon fell onto the concrete pad.
The reactor was in the open. There were a number of pipes connected to it. The base of the reactor was a dark colour.

The accident and its consequences

On 10 December 1996 the plaintiff commenced work at 7.00 pm. At 2.00 am on 11 December 1996 he was engaged in the removal of carbon waste from underneath the reactor. At that time the plaintiff was not in charge of the crew. The plaintiff was working on the crew for which the shift supervisor was Mr Richard Carter. At that time the plaintiff was still training and learning. He was wearing a protective suit, gloves, boots and a full face respirator with a filter. The gloves he was wearing were a special type of thin glove for use with petro‑chemicals. The plaintiff wore two gloves on each hand for extra protection.
The plaintiff was in a crouched position using a shovel to sweep out the carbon waste from underneath the reactor.
The plaintiff's evidence was that the visibility was poor. There was a lot of dust caused by the carbon being stirred up and there was limited lighting. There were shadows thrown on the area on which the plaintiff was working. As he was shovelling he struck his right hand middle finger on something that he did not see. He felt a hot sensation inside his glove.
After the incident the plaintiff saw that he had struck his finger on an upright black angle bracket. The bracket was not supporting any pipe or tubing.
The plaintiff left where he was working and went to the de‑contamination unit where he removed his glove to look at his injured finger. The finger was red and sore but did not appear to have a penetration wound. The plaintiff finished working his shift.
Over the next few days the plaintiff's finger appeared very bruised and then he lost a lot of movement in it. He attended at Fremantle Hospital and had the finger x‑rayed. His pain continued. On the night of 21 December 1996 the plaintiff had a chill and so he returned to hospital the next day. He was admitted to hospital, placed on intravenous antibiotics and underwent surgery which was performed by Mr Tony Jeffries.
The plaintiff was discharged from hospital on 27 December 1996. Due to persisting problems with his finger he went back to the hospital on 8 January 1997. He underwent further surgery on 11 January 1997. In that surgery Mr Jeffries amputated the plaintiff's right middle finger down to the knuckle. The plaintiff was discharged from hospital on 14 January 1997.
The plaintiff continued at work and received hand therapy. The stump of his amputated finger was tender. He had difficulties with the function of his hand. On 15 October 1998 Mr Jeffries performed a third operation which was a ray amputation of the right middle finger. That was the last operation that the plaintiff underwent.
Mr Jeffries' evidence was that Mr Dunbar had an infection in his finger caused by an unusual fungal organism which is usually in the soil. In his opinion the plaintiff was probably correct when he had his injury and thought he had a penetration injury. It was only a very small penetration so that he did not see any bleeding. In some way the fungal organism got through the skin into the joint where it multiplied and subsequently caused him to develop an infection within the joint. The trauma had two roles in the development of the infection. First there is the possibility of potential penetration of the skin, and secondly bleeding to the joint would be the ideal medium for the organism to multiply. The fungal infection destroyed the joint and caused the surgery which caused the loss of the plaintiff's finger.
As a result of the injury and treatment the plaintiff has lost the middle finger and the bone in the hand which attaches to that finger. His hand is narrowed and both strength and dexterity have been reduced. I accept Mr Jeffries' evidence.
The plaintiff has a right hand with the middle finger and the knuckle of that finger missing. He has scarring on his hand.
In March 1997 the defendant offered the plaintiff a position as plant superintendent which he accepted. His duties as plant superintendent involved maintenance planning, organising the shift crews and general planning of the operation of the site.
The plaintiff's employment as plant superintendent was not a success. There were personality clashes. In November 1997 it was mutually agreed between the plaintiff and the defendant that the plaintiff's employment would be terminated. A letter from the defendant to the plaintiff dated 4 November 1997 which was signed by Saad Soliman, general manager of the defendant, and the plaintiff, records that cessation of employment. That letter contains the following paragraph:
"It was mutually agreed between yourself and Eco Logic Australia that the position that you hold with this company was unsuited to your career path and personality, and therefore it was mutually decided to conclude your employment with the company this day. This is not to understate your commitment and effort to the position you held."
I am satisfied that the failure of the plaintiff's employment as a shift superintendent was not due to any lack of effort on the plaintiff's part.
In 1998 the plaintiff obtained approximately five weeks employment as a trades assistant at the shutdown of a plant. It was light duties work. The plaintiff had difficulties with his right hand and his index finger started to swell up. He was transferred from trades assistant duties to store duties.
The plaintiff has attempted to obtain employment but has not obtained any further employment.
The defendant has provided rehabilitation services to the plaintiff and the plaintiff has participated in rehabilitation programs. He has done a safety instructor's course which he completed on 22 January 2000. The plaintiff hopes to obtain employment as a safety officer and has applied for that employment but has not been successful.
Prior to the accident the plaintiff played squash, tennis and golf. He is naturally right‑handed and finds himself unable to engage in these sports as a result of the diminution in function of his right hand caused by the loss of his finger. The plaintiff was an active scuba diver before the accident. He is unable to continue in that recreation because of the need to handle heavy equipment.
The plaintiff's ability to do gardening is restricted by his hand disability. His friends assist him with gardening a couple of hours a week.

Light and visibility

As I have mentioned the plaintiff's evidence was that light and visibility was poor. His evidence was that 240 volt lights could not be used for safety reasons and that hand held torches were of little use because a worker could not hold such a torch while shovelling.
The plaintiff called Richard Charles Carter. Mr Carter was an employee of the defendant from May 1996 until February 1998. Mr Carter was the supervisor of the crew on which the plaintiff was working at the time of the plaintiff's accident. His evidence was that the lighting in the area where the reactor was situated was poor. There were a lot of shadows. Most things around the reactor were coloured black and the pad area was poorly lit.
Mr Carter said that there were some 240 volt lights available for use. You could use them sometimes during shutdowns but half the time you could not get hold of them and many would be broken.
Mr Gary Weiser was employed by the defendant from August 1996 to early 1998. His evidence was that in December 1996 the lighting in the area of the reactor was low. There was no lighting at the base of the reactor. A lot of the equipment was black and it was very hard to see the equipment you were working on. It was necessary to go to sites with portable lights to work in the area and sometimes jobs were left for the daytime. His evidence was that the site was always short of lighting.
The defendant's production manager, Mr Andrew Delbridge gave evidence that visibility was adequate and additional lighting was available.
I accept the evidence of Mr Carter. He was supervising the plaintiff's crew at the time. I accept his evidence that at the time of the accident visibility was poor and there was little scope to get further lighting.

The function of the bracket on which the plaintiff was injured

The plaintiff gave evidence that the bracket on which he injured himself was not supporting anything at the time of the accident. Mr Carter's evidence was that brackets on the plant which were not supporting pipe had no function. Changes were made to the plant and brackets were left in place just in case they may be needed in the future. Mr Weiser also gave evidence that there were a lot of changes to the plant and when pipes were removed associated brackets could be left in place.
Mr Delbridge said that the bracket on which the plaintiff had injured himself was a bracket for a flexible hose and was used when it was necessary to decant liquid waste directly from drums in the area. In cross‑examination Mr Delbridge agreed that the bracket about which he had been giving evidence was a different bracket to the one on which the plaintiff had injured himself. In re‑examination Mr Delbridge gave evidence that the bracket was required to hold a flexible hose used to clean or remove any blockages that occurred in the filter housing.
I accept the evidence of the plaintiff and Mr Carter that the bracket had no function. I do not accept Mr Delbridge's evidence in re‑examination that the bracket was used from time to time to hold flexible pipes. This, I conclude, was an idea that occurred to Mr Delbridge in re‑examination as a function that the bracket may have had rather than a fact he recalled.
The bracket may have performed some function in the past and it is possible that it was left on the structure in case it could serve some function in the future. It was an object with thin edges and an obviously dangerous object in an area where workers used shovels in a restricted area to remove carbon waste.

The work of a shift supervisor

Both the plaintiff and Mr Carter gave evidence that the work of a shift supervisor included considerable physical effort.
Mr Delbridge's evidence was that a supervisor's physical activity is minimal. The extent of physical activity undertaken by a shift supervisor was at the supervisor's discretion. In cross‑examination he said that as a shift supervisor he had used a shovel on two or three occasions for an hour on each occasion to build teamwork.
Mr Peter Bennison, an instrument electrical fitter employed by the defendant, also gave evidence that not a great deal of physical activity is required of a shift supervisor. He also said that they would help with physical work if required.
While I accept that there was some scope for a shift supervisor to delegate any physical work, I do not accept that the physical demands on a supervisor were minimal.
Mr Carter's evidence as to the crew's workload and the physical demands on workers, especially in summer, was in my view accurate. I do not accept that in that employment a supervisor could avoid getting involved in physical activity. I find that it was an important function of a shift supervisor to do physical work, including shovelling.
I conclude that the plaintiff's reduction in the function of his hand means that he is not capable of performing the full duties of a shift supervisor with the defendant.

Liability

As the plaintiff's employee the defendant had a duty to take reasonable care to avoid exposing him to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. The bracket on which the plaintiff struck his right hand was an obvious source of injury to workers such as the plaintiff when working in a confined area using shovels to remove carbon waste.
In my view in the exercise of reasonable care for its employees the defendant should have removed the danger constituted by the bracket. If the bracket was required at any time in the future it would have been a simple task to weld or to bolt a bracket in place.
The defendant contends that the plaintiff was guilty of contributory negligence in failing to take proper care for his own safety and failing to ensure that the area was adequately lit. A worker will be guilty of contributory negligence if the worker ought reasonably have foreseen that failure to act as a reasonably prudent person would expose the worker to risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. I find that there was no contributory negligence on the plaintiff's part. The plaintiff was engaged in a difficult task involving the use of a shovel to remove carbon waste while in a crouched position and wearing protective clothing. I find that his failure to observe the bracket while engaged in this task was not the result of any failure to take reasonable care for his own safety. Rather, it was the result of his concentration on a difficult task.
Nor do I accept that the plaintiff was negligent in failing to marshal more lighting for the site. I have found that on the basis of the evidence of the plaintiff, Mr Carter and Mr Weiser, that there was limited portable lighting available. At the time of the accident the plaintiff was training and learning under the supervision of Mr Carter.

Assessment of damages

The plaintiff has been provided with rehabilitation services through service providers engaged by the defendant, but they have not been able to rehabilitate the plaintiff back into the workforce. There is no evidence that the plaintiff has failed to co‑operate with those rehabilitation service providers in being rehabilitated back into the workforce.
The plaintiff has endeavoured to obtain other employment but has failed to do so apart from five weeks employment in 1998.
I find that there has been no failure to mitigate by the plaintiff.
As to the future the plaintiff had in the past worked overseas where he was able to earn higher levels of income at lower tax rates. The plaintiff gave evidence that, if not for his injuries, he hoped to work overseas again in the future. The plaintiff was aged 36 at the time of the accident, and had a young son with whom he wished to maintain contact. I find that it is unlikely that the plaintiff would have worked overseas if not for his injuries. I also find that if not for his injuries the plaintiff's employment level would have been maintained at around the level of a shift supervisor rather than a shift superintendent. The experience with the defendant as a shift superintendent has shown that the plaintiff's supervisory and management skills are most effectively used in an environment where he is able to maintain good rapport with those he is supervising by engaging in hands‑on work himself.
The plaintiff's earnings as a shift supervisor were on average $55,000 per annum gross. That equates to $1,058 gross per week, and $782 after tax per week. I calculate the plaintiff's past loss as follows.
In the period 11 December 1996 to 4 November 1997 when the plaintiff's employment was terminated the plaintiff lost time from work when he was unable to work due to his injury and the resulting treatment. The net loss for that period is $10,693.
From 4 November 1997 to date is a period of 3.6 years. In that period the plaintiff has endeavoured to find employment but has been unable to do so. I find that the plaintiff's loss of earnings in that period is the result of the injuries suffered in the accident. I calculate his loss as follows:
3.6 years x 52 weeks x $782 = $146,390
The plaintiff is entitled to be awarded the income tax he has paid on worker's compensation benefits he has received which he has to repay to the defendant. Those income tax payments were $27,026 to the date of trial. I will hear from counsel as to whether there has been any further payments.
The total past loss of earnings therefore is $184,109.
I calculate interest on the past loss of earnings other than that received by way of workers compensation as follows:
Net loss since 4 November 1997  $146,390
Net compensation received in that period               $83,144
Uncompensated loss  $63,246
$63,246 x 3.6 years x 3%  $6,830
The plaintiff is aged 40. There are 25 years until he turns 65. The 25 year multiplier is 686.9. While the plaintiff has so far been unable to find employment I conclude that he has a retained earning capacity. He has a reduction in function in his hand which limits his capacity for physical work but he retains a limited physical capacity and has undergone safety training. I assess his retained earning capacity at 40 per cent of his pre‑accident capacity. I calculate the plaintiff's future loss of earning capacity as follows:
$782 x 686.9  =        $537,156
Less 6% for contingencies  =        $504,926
Less 40% for retained earning capacity      =        $302,955

Evidence as to the plaintiff's loss of superannuation benefits was led in the form of a report from Dermott G Balson, an actuary. The assumption made in Mr Balson's report dated 13 February 2001 was that the plaintiff's gross weekly income was $1,200 per week. The correct figure is $1,058. The plaintiff has received superannuation benefits for the period he was employed by the defendant after the accident but Mr Balson has made no allowance for that. Mr Balson has calculated the past loss of superannuation at $26,676. I cannot calculate precisely the deductions that should be made for the lower level of gross income and for the fact that superannuation benefits have been paid for part of that period. Doing the best I can, I assess the past loss at $20,000.
Mr Balson has calculated the future loss at $70,054. I calculate the correct figure as follows:
$70,054 x ($1,054 ÷ $1,200)  =        $61,530
Less 6% for contingencies  =        $57,839
Less 40% for retained earning capacity      =        $34,703
The plaintiff's past medical, hospital and rehabilitation expenses are $29,213.
As a result of the accident, the plaintiff has had three operations which has resulted in the amputation of his middle finger and scarring. The cosmetic disability is unusual but nevertheless significant. At first glance the changes of his hand are not obvious, however on closer examination the loss of the finger makes the hand look unnatural. The plaintiff has lost strength and dexterity in his hand resulting not only in a reduction in his employability, but a reduction in his sporting and recreational activities. He has suffered difficulties with depression and anger as a result of the accident and is likely to continue to suffer difficulties in this area for some time. I assess the plaintiff's general damages at $35,000.

Summary of damages

I assess the plaintiff's damages as:
Net past loss of earnings  $157,083
Interest  $    6,830
Income tax payments on workers' compensation

(subject to clarification as to whether any

payments have been made since trial)  $ 27,026
Future loss of earning capacity  $302,955
Past and future loss of superannuation  $ 54,703
Treatment expenses  $ 29,213
General damages  $ 35,000
TOTAL  $612,810