Evans & Evans v Rivett Arboricultural & Waste Equipment Hire P/L & Ors - [2005] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EVANS & EVANS v RIVETT ARBORICULTURAL & WASTE EQUIPMENT HIRE P/L & ORS
Judgment of His Honour Judge Chivell
23 December 2005
NEGLIGENCE
First plaintiff’s right arm partially amputated in wood chipping machine – machine constructed by first defendant, sold by second defendant to third defendant – third defendant supplied machine, premises and some supervision to volunteer group – plaintiffs both volunteers working at premises at time of injury – first plaintiff aged 17 at time of injury – second plaintiff witnessed injury and suffered nervous shock – all defendants in breach of duty of care to plaintiffs – contribution between defendants, 70% by first and second defendants and 30% by third defendants – no contributory negligence - claims against third parties dismissed.
DAMAGES – PERSONAL INJURY
Partial amputation of right arm – 17 year old school student working as volunteer – non economic loss $60,000 past and $70,000 future – economic loss $19,875 past, $476,500 future – loss superannuation contributions $2,338.32 past, $56,144.50 future – medical expenses $78,515.89 past, $303,815 future – total assessment $1,084,451.53.
Limitation of Actions Act 1936 (SA) s 36, s 45; Trade Practices Act 1974 (Cth) s 52, s 53, s 75AC, s 75AD, s 82, referred to.
Donoghue v Stevenson [1932] AC 562; Wyong Shire Council v Shirt (1980) 146 CLR 40; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; Proctor & Gamble Pty Ltd [2001] NSWSC 398; Todman v Victa [1982] VR 849; Martin v Stratman & Anor (1994) ATR 81-262; Sousaari v Steinhardt & Anor (1989) ATR 80-268; Chicco v Corporation of the City of Woodville (1990) ATR 81-028; Tame v New South Wales (2002) 211 CLR 317; Thompson v Johnson & Johnson Pty Ltd (1991) 2 VR 449; Glasgow Corporation v Muir [1943] AC 448; Pivovaroff v Chernabaeff & Ors (1978) 21 SASR 1; ACCC v Glendale Chemical Projects (1998) ATR 41-632; Janssen - Gilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526; Fennell v Supervision & Engineering Services Holdings Pty Ltd & Santos Ltd (1988) 47 SASR 6; Commissioner of Railways v Ruprecht (1979-80) 142 CLR 563; Bremert v Clark (1966) 8 SASR 294; Medlin v [SGIC] (1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138; Todorovic v Waller (1981) 150 CLR 402, considered.

EVANS & EVANS v RIVETT ARBORICULTURAL & WASTE EQUIPMENT HIRE P/L & ORS
[2005] SADC 172
A. Introduction

In this action, the plaintiffs claim damages for injuries received on 28 April 2000.
On that day the first plaintiff, Conor Patrick Evans, then aged 17 years and 2 months, was operating a wood chipping machine. His right arm was drawn into the machine, and he suffered a traumatic amputation of his right hand above the wrist and associated soft tissue injuries to his arm and shoulder. Both the liability for damages, and the quantum thereof, are in issue. I will refer to the first plaintiff as “Conor”.
The second plaintiff, Christopher Michael Evans, the younger brother of Conor, was present at the time of the incident. He heard his brother scream, and turned to see him holding his badly injured right arm, thereby suffering psychological injury. The quantum of his damages is agreed in the sum of $20,000, but liability remains in issue. I will refer to the second plaintiff as “Christopher”.
The incident occurred at premises situated at Callana Street, Roxby Downs, South Australia, occupied by the third defendant, WMC (Olympic Dam Corporation) Pty Ltd (“WMC”). These premises had been made available to a volunteer group called “the Green Machine”. It was in their capacities as volunteers with the group that the plaintiffs suffered their injuries.
The claims are made against the first defendant, Rivett Arboricultural and Waste Equipment Hire Pty Ltd (“Rivett”), as the manufacturer of the wood chipping machine, the second defendant, Arbor Products International (Aust) Pty Ltd (“Arbor”), as the retailer/supplier of the machine, and WMC as the owner and provider of the machine, the owner/occupier of the premises where the injury occurred, and on other grounds.
Rivett and Arbor issued a Third Party Notice claiming indemnity/contribution from WMC, from the second third party John Zwar, and from the third third party Patricia Evans (Conor’s mother), on the basis that they were Conor’s supervisors at the time of the injury. A further third party notice was issued by Rivett and Arbor to Michael Evans, (Conor’s father) on the same basis.
WMC also issued Contribution Notices against Rivett and Arbor claiming contribution/indemnity.
In summary, the plaintiffs’ claims are made on the following basis:
·as against Rivett, negligence at common law, and breaches of s 52 and s 75AD of the Trade Practices Act 1974 (Cth);
·as against Arbor, negligence at common law, and breaches of s 52, s 53(a), s 53(aa) and s 53(c) of the Trade Practices Act;
·as against WMC, negligence at common law, breaches of s 19, s 23 and s 24A of the Occupational Health Safety and Welfare Act 1986 (SA), and a breach of s 17C of the Wrongs Act 1936 (SA) as it then was (now s 20 of the Civil Liability Act 1936).
The proceedings were issued on 24 April 2003, and WMC was joined as a defendant on 15 September 2003. The plaintiffs also claim an extension of time to bring these proceedings “in so far as it is necessary” pursuant to s 48 of the Limitation of Actions Act 1936 (SA). Conor was born on 6 February 1983. Christopher was born on 3 June 1984. The claims based on negligence or breach of statutory duty were issued within three years of the plaintiffs attaining 18 years (ie. before 6 February 2004 and 3 June 2005 respectively)[1], and the claims based on the Trade Practices Act were issued before three years had expired following the occurrence (ie. before 28 April 2003).[2]
[1] See s 36 and s 45 of the Limitation of Actions Act 1936
[2] See s 82(2) of the Trade Practices Act 1974. The period has since been extended to 6 years.
Accordingly, the plaintiffs assert that no extension is necessary. The contrary was not argued by the defendants or third parties, so I will proceed on the basis that all claims have been made within time.
B. Description of Machine
The machine is a trailer-mounted mechanism, of the type which is commonly seen being towed by a truck. Foliage is inserted through an infeed chute at the rear of the trailer. An infeed roller grips the foliage and propels it forward so that it is presented to the cutting disc. This consists of a large flywheel-type disc which rotates in a vertical plane, and which has sharp blades mounted into it. The disc is set at an angle of 37.5 degrees to the direction of travel of the foliage, and cuts the wood into chips in a scissor-like action against a fixed anvil. The chips are ejected with some force from the discharge chute either into the rear of a truck or, as in this case, on to a pile on the ground.
The machine has the following features:
·it is driven by a 45hp diesel engine with a direct drive to the cutting disc;
·the engine also drives a hydraulic system which drives and lifts the infeed roller;
·the infeed roller is approximately 200mm in diameter, is generally cylindrical in shape and has a number of evenly spaced teeth, approximately 50mm apart. It weighs approximately 50 kilograms;
·the infeed roller is lifted hydraulically so that larger pieces of wood can be inserted under it;
·as it is lifted, four large springs, two on either side of the roller, go into tension so that when the hydraulic force is removed the roller is forced down, both by its own weight and by the operation of the springs;
·the infeed chute is rectangular in shape. It measures 1230 x 715mm at its outside edges, tapering down to 430 x 320mm where the chute meets the infeed roller;
·at an inspection of the machine at Port Adelaide on 31 August 2005, it was agreed that the distance from the point where a finger might become entrapped by the infeed roller to the outside edge of the infeed chute was between 850 and 890mm, depending on which blade was used for measurement;
·the infeed roller is controlled by a bar which I will call the “forward/reverse control bar”. This extends up both sides and across the top of the infeed chute. It controls the direction of the infeed roller, and has three positions - forward, reverse and neutral. In order to have the roller rotate so as to draw material into the machine (“forward”) the bar is pulled back towards the operator so that it is “proud” of the edge of the chute by a horizontal distance of 151mm, and a vertical distance of 108mm (see Exhibit P58, page 1). In order to reverse the direction of the feed roller, the bar is pushed forward, away from the operator, but it still remains proud of the infeed chute. When inspected in December 2001, this bar did not appear to bear any decals describing its function;
·another bar which extends across the top of the chute, behind the forward/reverse control bar, is called the “lift and crush control bar”. This activates the hydraulic system, which raises and lowers the infeed roller. Connected to this control is a bar which extends across the bottom of the infeed chute, called variously the “leg lift bar” or the “knee bar”. This is located approximately 50mm below the bottom edge of the chute, and also slightly proud of it. This bar is designed so that the operator may activate the lift and crush mechanism by pressing the knee or lower leg against the bar, thus leaving the hands free to insert material into the machine. When inspected in December 2001, the lift and crush control bar bore a decal with the words “LIFT AND CRUSH CONTROL BAR – pull to lift – push to crush”;
·when the machine was inspected by Mr Colin Simpson, an engineer originally engaged by WMC, on 4 December 2001, it was noted that the lowest point of the infeed chute was 710mm above ground level (Exhibit P16, page 10). Obviously, this height may vary, depending upon whether the trailer is attached to a vehicle, or if not, the adjustment of the jockey wheel, the air pressure in the tyres, the slope of the ground, etc. The height of the infeed chute achieves some prominence as an issue in these proceedings and I will deal with this subject in more detail later.
C. Circumstances of the Accident
Conor said they arrived at the Green Machine yard between 11.00 am and 12.00 noon on 28 April 2000. He worked there all afternoon dragging foliage towards the machine, occasionally feeding it into the machine, loading mulch on to the trailers of customers, or just cleaning up. He estimated that he had used the machine between one and one and half hours in total (T84).
Conor said that around 5.00 pm, it was towards the end of the day, he still had some further vegetation to be mulched. The material was at ground level and he was behind and to the right of the machine facing the infeed chute. He described what happened as follows:
Around the time of the accident the mulch pile was starting to get quite low, it was almost time to knock off, but there was still a fair bit of – it was mainly smaller stuff. I think, from memory, it was probably wattle, or something along that line, just small bushy and very leafy, and it was, like I said, towards the end of the day, so things were getting a lot smaller, the job seemed a lot easier. (T85)
Conor said that he had been bending down to ground level to collect the material (T85). He was unable to recall clearly, but thought that he was to the right of the infeed chute with his knee within the vicinity of the knee bar (T86). He went on:
A.I remember dragging materials up. It was just like any other time of the day, just hard work, dragging the materials up to the machine. I noticed mum and dad were both off to the side of the machine, they were preparing – turning around and stacking things so it was a bit easier to feed through the machine. I jumped off a pile of branches and started feeding them through the machine. I don’t have a memory at all of how I got caught at all – I just remember hanging on – I’m pretty sure I was to the top of the feed chute. I just remember hanging on.
Q.With what. What were you hanging on with.
A.Sorry, my left hand. I just remember hanging on and I threw my leg up. I don’t think I even thought about it. I think I just did it and managed to hit the reverse bar, which put the roller in reverse. I just instantly started to feel relieved. I slid out of the machine. I was more being pushed, really, and I slid out onto the ground just in front of the feed chute. I remember looking at where my hand was. …
(T86-87)
It was quickly apparent to all present that Conor had lost the lower part of his right arm.
Conor was conveyed to the Roxby Downs Health Centre where he received emergency treatment. He was then transferred to the Royal Adelaide Hospital by the Royal Flying Doctor Service. He underwent emergency surgery for debridement of the residual stump.
On 29 April 2000, the following day, Conor noticed a small lump above his right ear which was tender. He said that the lump was two to three centimetres long, five to seven millimetres wide and about five millimetres high. He also noted a series of lacerations/abrasions across his arm at approximately three to four centimetre intervals which, he surmised, were caused by the teeth of the infeed roller. He also had a large laceration/abrasion on his right shoulder blade. He still has some residual scarring from these injuries.
Conor said that as he was inserting the material into the machine his head would have been at the level of the top of the infeed chute, and hence slightly below the level of the forward/reverse control bar (T133). He is approximately six feet tall (183cm).
Conor denied that he ever put his head or shoulders into the machine, or that he ever climbed into the chute by putting his foot on the bottom of the chute. Indeed, he appeared rather incredulous when these propositions where put to him (T134). He said that if there was any difficulty in getting foliage to engage in the roller, then all he would do is engage reverse and wait for the material to come back out again, turn it over and try again, or try to guide the material through with a larger more leafy branch (T135).
In cross-examination, Conor was unable to explain how he became caught or ended up in the machine (T179). He agreed with Mr Walsh QC, counsel for WMC and the other third parties, that a momentary unconsciousness might explain why he has no memory of that event. When asked whether he might have tripped, he said that he had no memory of having done so, or of his glove becoming caught (T216).
Christopher confirmed Conor’s evidence as far as he was able to. He described it as a hot day, that he took off his earmuffs to wipe the sweat away and heard his brother screaming. He said:
A.    … I turned around towards the machine.
Q.When you turned around towards the machine, can you explain to his Honour what you saw, and if you will be assisted by it can you show his Honour, with the help of P3, the model, what you saw.
A.I turned around to see Conor holding on with his left, roughly around this area (Indicates).
Q.    You are indicating the area two-thirds of the way up the infeed chute.
A.Conor was laying on his back. I couldn’t see where the legs were but he was in like this.
Q.    Indicating with your buttocks on the bottom of the infeed chute.
A.    Could have been in further.
Q.And head and shoulders in the infeed chute, with the right hand extended towards the feed entry roller.
A.Yes. And then I remember starting to run and I run past mum and dad pointing and yelling to them, and then before you know – it felt like a split second – I was at the machine but in that time I saw one of Conor’s legs come up, I’m pretty sure it was the left leg but I’m not sure if it was that kick that hit the reverse bar or not. (T593)
He said the next thing he could remember is Conor standing up and holding his severely injured right arm.
Mr Bell, counsel for Rivett and Arbor, submitted that there are four alternative possibilities as to what happened:
·That Conor reached into the infeed chute to push material further in or to clear a blockage and became trapped by the infeed roller.
·That Conor climbed into the machine for the same purpose.
·That Conor became snagged while his body was not upright so that his head and shoulders were below the level of the forward/reverse control bar, possibly while allowing material to run through his fingers.
·That Conor slipped and fell while feeding material into the machine.
He submitted that the first and third of those scenarios were the most likely.
Mr Eriksen, counsel for the plaintiffs, submitted that the first scenario is unlikely because Conor has given evidence that he never acted in that way (T134). I agree with that submission. I found Conor to be an honest and forthright witness, whose credibility was not challenged. There is no evidence to support this theory, and on the balance of probabilities, I reject it. I agree with Mr Bell’s comments about the second and fourth alternatives, and find that the only credible explanation for what happened was that Conor’s glove became snagged in a fork or a protruding piece of foliage and his hand was drawn into the machine. Having regard to Mr Simpson’s evidence about reaction times, which I will discuss in detail later, I find it is very unlikely that Conor’s hand was close to the infeed roller at the time he was snagged. On the basis of his evidence that the infeed roller was operating at 600mm per second, and that Conor would have taken between 1½ and 2 seconds to take any effective action to save himself, it is more likely that his hand was a metre or so back from the infeed roller when it became snagged, otherwise he would have had no time to take the actions he did which probably saved his life.
D. The Green Machine
“The Green Machine” was the name of a group of volunteers which was formed in 1993 at Roxby Downs. Mr John Zwar was a horticulturist employed by WMC. He later became Senior Environmental Scientist in the company.
Mr Zwar described himself as the coordinator of the Green Machine. His role can be characterised from a number of documents in his employment records (Exhibit D1-35). In a document entitled “Position Description Form” dated 30 June 1995, “position accountabilities” required of Mr Zwar were:
3.Town liaisons Liaise with local council with respect to environmental disturbance and water conservation to maintain the high environmental standards outlined in the environmental impact statement.
4.Public liaisons Liaison and advisory activities with local community in projects as defined by the corporation to maintain a good working partnership.
In a performance review, which considered Mr Zwar’s performance with reference to these criteria, the following comment appears:
4.Public liaisons Excellent performance which provides a very positive view of the company. Out of hours work contributes significantly.
In a “list of duties” dated 16 September 1999, Mr Zwar stated:
§Community Environmental Projects – Whilst I am very involved in each of the following groups/projects as a volunteer in my own time, my involvement also relates to my area of employment and there is some overlap.
1.Community Mulching Project, (the Green Machine) co-instigator in 1993 & voluntary co-ordinator since then of this successful volunteer operated project converting green waste to garden mulch. Operates Friday afternoons & Saturdays, funds raised donated to RFDS. More than 2,000 cubic meters of mulch produced since 1993, which has reduced the volume of green waste going to landfill at the town dump.

In a “Justification for my Position” document dated 30 June 2000, Mr Zwar made the following statement:
My position is Senior Environmental Scientist. It covers a diverse range of duties with a particular focus on the wider community. Because of my involvement in environmental projects and education in the local and regional community I believe WMC and Olympic Dam Operations especially is portrayed in a very positive way which is of benefit to the company.
…
As Co-ordinator of the Roxby Downs Tidy Towns Team I have instigated and been closely involved in several community recycling/reuse/waste management projects, including waste paper, scrap timber/firewood, the Green Machine community mulching project, native timber salvage for craft work, …
At a social function in 1993, Mrs Trish Evans (Conor’s mother) suggested to Mr Zwar that WMC might allow the Green Machine to use a wood chipping machine which WMC had purchased from Rivett in 1986, and which had been used during the establishment of the township of Roxby Downs. The machine had lain idle for some time. The idea was that the machine would be used to convert green waste to mulch, and this would be sold as a fundraiser to assist the Royal Flying Doctor Service. Approval was granted and the machine was overhauled and serviced at WMC’s expense. The contractors who overhauled the machine demonstrated how it worked to Mr Zwar (T1291).
The machine was located at WMC’s Environmental Services depot in Callana Road at Roxby Downs, in the light industrial area. It was successfully used for some years and was serviced from time to time at WMC’s expense. A technical officer with WMC, Mr Steve Yianni, would perform routine maintenance such as adjusting blades and fitting new ones when necessary. All spare parts were supplied by Rivett and paid for by WMC (T1296).
Mr Zwar said that the old machine was somewhat temperamental and had many breakdowns.
When the project first started, Mr Zwar was often the only person present on Saturdays. Others joined the project as time went on, including Conor’s father, Mick, and mother, Trish Evans (T1294).
Mulch was sold on Saturday mornings. WMC had provided a sign advising the public of that, and it was well-publicised in the press. Mr Zwar said:
But, occasionally, I would sell mulch on other days during the day if I knew someone wanted it or if, say, Andamooka school sent a truck over for mulch during the week as well I would leave work and let them into the yard, sell them mulch and then that would be it. But mostly weekends and Saturday mornings. (T1295)
Mr Zwar said that mulching was also done on Friday afternoons or evenings and occasionally on other days as well. He said, “I remember occasionally when members [of the Environmental Services section] were doing a small amount of mulching during the week during work time on occasions.” (T1295)
WMC placed a high value on these activities. For example, in a document entitled “Environment Progress Report – 1997” (Exhibit P52), WMC’s aims and objectives are stated to include:
Environmental responsibility
§ Be recognised for our leadership in environmental management.
In the same document, it is stated that the company had established the “WMC Chairman’s Environment Award” to “encourage environmental awareness and excellence, and to recognise work by employees, contractors and communities at WMC sites.” Included in the winners was:
Community – Australia: At Roxby Downs, community action improved the reuse and recycling of waste. Highlights include clean-up days, a community mulching project and a reusable shopping bag scheme. (page 35)
It is clear from the above that WMC strongly supported the Green Machine. It had a stated aim of presenting an image of environmental consciousness. It required Mr Zwar to establish and develop such community activities in furtherance of this objective. It allowed its employees to work at the Green Machine during working hours on some occasions. It supplied the wood chipping machine, it provided the premises at which it was located, it serviced the machine and supplied the spare parts. As things transpired, it purchased and supplied the new wood chipping machine and made it available to the Green Machine on the same basis.
E. Purchase of New Wood Chipping Machine
As problems with the old machine continued to occur, discussions began taking place in 1998 about purchasing a new machine. In a letter dated 14 August 1998 from Arbor, signed by Mr Nicholas Rivett and addressed to Mr Yianni, information was provided about “Little Rippa Chippa” and “Big Rippa Chippa” machines (Exhibit D1-16). The letter described some of the
features of these machines, including the following description of the “leg lift bar”:
This feature is also a major safety improvement on the Rippa Chippa models. This Leg Lift Bar is located across the bottom of the Infeed Chute and is proud of the chute by 50mm. When feeding the machine the operator will naturally come in contact with this Bar which instantly lifts the Top Feed wheel, disengaging the feed. This safety feature, combined with our proud Feed Control Bar provides the highest degree of operator safety of any woodchipper in the world. An Australian and a World First [Patent No. PO 2844].
In these days of Occupation, Health and Safety responsibilities, you cannot afford to run a machine that does not match the Rivett for its leading safety considerations.
In the same letter, the following comment is made about training:
Certificated Training Program
We offer a Certificated Training Program for Operators and Maintenance staff. This program is available for up to 10 participants per fee and can be run at any time upon request. Trained staff are issued with an Operators Training Manual and Certificate which is valid for 3 years. Under the Australian Standards and Health and Safety Regulations, as manufacturers we are required to offer this Training Program, however, it may be declined.
The price list attached to the letter states that the cost of the training program was $450.
Included in the price list was a “Special Infeed Chute, e.g. 1400 - 1600 include. (sic) Drop gate” for $380. There is no explanation of this item, let alone a recommendation for its use, in the correspondence.
On 9 November 1998, a further letter from Arbor to Mr Yianni (Exhibit D1-17) confirmed that they had a second-hand wood chipper available. This was described as:
“Midget M90E which is fitted with a 45hp engine and all of our latest technology and recommended options. This unit has only done 194 hours work, is 18 months old, it still has 18 months warranty on it and is in excellent condition.”
The specifications stated that the machine’s infeed chute was 920mm (36”) from the end of the chute to the feed wheels. This was clearly the “recommended option”.
The “Special Infeed Chute” and the “Certificated Training Program” were included in the price list again, without further comment.
On 11 December 1998, a letter from Arbor to Mr Zwar offered the “Midget Rivett Chipper” model 45 mentioned previously at a price of $31,000. The “Certificated Training Program”, was this time offered at a price of $650 (Exhibit D1-18).
In an internal WMC document entitled “Justification for Expenditure” (Exhibit D1-33), Mr Zwar, described as the “Project Manager”, stated:
8. The machine is expected to perform well – a very low risk of poor performance. The quote is fixed. Safety of operation is improved compared to the old unit currently used. The mulching project is an excellent example of recycling green waste with a proven track record locally. It has greatly reduced the volume of waste going to landfill and recycles valuable organic matter as mulch, an important component of our water conservation strategy.
The machine was purchased on 11 January 1999. The invoice of that date is directed to WMC Group Financial Services at its Melbourne address (Exhibit D1-19).
Although there was no evidence of the precise date, the machine was delivered to the Roxby Downs premises some time shortly after that. Mr Zwar said that he was away on annual leave at the time, and that by the time he returned from leave the machine had been delivered and the other Green Machine volunteers, particularly Mick Evans, were already operating the machine. Mr Zwar described the new machine as follows:
The new machine was somewhat smaller than the old machine and I am sure less cumbersome. The feeding-in chute was considerably larger than the old machine, and by ‘larger’ I mean wider. You could more easily feed material into it. The feature where you could lift a roller to get larger branches or logs into the machine, so that they could actually get a grip and be pulled in by the rollers, was better than the old machine. So it had features that the old machine didn’t have and was easier to use and worked better. (T1305)
Mr Zwar said that if any safety process had been recommended by Rivett, this would have been given serious consideration during the purchase process. For example, if the training course had been recommended, or if the chute extension, as required by the New South Wales Code of Practice, had been drawn to their attention, then action would have been taken. He said:
WMC Resources being a mining and processing company, with mining and processing being a notoriously dangerous industry, safety, training and awareness is very very high on the agenda. We have frequent safety meetings and training, and there is a very strong culture and awareness of safety issues for anyone working in the company. I think if we were aware of something that would make anything we operated better and safer we would have pushed strongly to get those options, both for this machine and for anything else that we might have been using. (T1308)
F. Manufacturing History
Mr Rivett said that the machine in which Conor was injured was built during 1996 and was used for “trialling and lending to our existing client base to evaluate whether it was a good configuration” (T897).
The machine was then sold to a Mr Langfield in March 1997. He operated the machine for about 12 months, after which Arbor purchased it back. It became available for re-sale in late 1998.
In preparing it for re-sale, a new clutch was installed, all the “decals” on the machine were replaced, and the interior of the infeed chute was repainted with the red “prohibited” area and the orange-and-black “permissible” area (T913-4). This design arose from discussions with the Geelong City Council in May 1997, an issue which I will further discuss in due course.
G. Previous Incidents and Design Issues
Mr Nicholas Rivett is the principal of both Arbor and Rivett. He has been involved in arboriculture since the early 1970s. He began importing wood chipping machines from the United States of America in 1983, initially by importing the complete machine, and later importing the chipper head (the infeed and discharge chutes, the chipper disc, anvil and infeed roller) and manufacturing the rest of the machine. He obviously has an extensive knowledge of the industry, and of wood chipping machines in particular.
In July/August of 1986 he sold a machine to WMC during the establishment of the town of Roxby Downs. This was the first machine which was later used by the Green Machine.
In 1987, as a result of discussions with the State Electricity Commission (“SEC”) of Victoria and WorkCover Victoria, the infeed chute on the imported “Morbark” machines was extended from 600 to 900mm in length. SEC’s engineers expressed concerns that the original 600mm chute left the operator too close to the infeed roller. The extra length was achieved by inserting an extra piece, between the original infeed chute and the machine (see Exhibit P16, pages 85, 88).
In a letter dated 27 July 1987 (Exhibit P16, page 85), Mr Rivett offered this bolt-in section to the Townsville City Council, as he did to all existing owners. In part, that letter stated, “For all existing machines we offer a bolt-in section and extended Control Bar to bring all machines up to current safety levels.”
In the Product Information Bulletin which accompanied the letter, the following statement appears:
In recent months some concern for the safety of the operators when feeding the Chipper with short material has been expressed in some quarters, it was considered by some in Australia that the proximity of the Pinch Point of the Infeed Rollers inside the Infeed Guard was a potential hazard. Some manufacturers immediately capitulated to recommendations from Safety Officers and Department of Labour and Industry, to install a Feed Table similar to those historically fitted to Drum style Chippers.
…
Working with the Department of Labour and Industry in Victoria, our Ergonomic Consultants and those of the State Electricity Commission, we developed an Infeed Chute and operating system that provides the equal protection of a Feed Chute Table while enhancing operator safety and work stress reductions. To this end the following new design has been developed to be carried out on the existing Infeed Chute Protection System for all new machines.
THE CRITERIA FOR THIS MODIFICATION WILL BE:
The distance from the Pinch Point of the Feed Rollers being taken as the axle centre of the Bottom Feed Roller to the leading edge of the Infeed Chute will be a minimum of 850mm.
The Feed Control Bar will exceed the width of the Infeed Chute by a minimum of 50mm from either side and 50mm above and shall be proud of the Infeed Chute in the reverse position (forward) by no less than 5mm and 160mm in the Infeed position (outward).
The distance when reaching into the machine from the first line of contact, being the safety reverse bar, to the rollers, in an erect or near erect position shall be 1.2M minimum. The result will be, when in the normal operating position an operator breaches correct working practice and reaches into the Infeed Chute, they will trip the Infeed Bar to the neutral or reverse position well before reaching the Feed Rollers.
Most importantly the good ergonomics design of the machine has been maintained ensuring that good postural working practices are encouraged, thus reducing fatigue and possible injury. (Exhibit P16, page 86-87)
That document encapsulates Mr Rivett’s approach to the issue of the adequacy of the infeed chute on his machines. His consistent position has been that the head and shoulder of the operator cannot enter the infeed chute without tripping the forward/reverse roller bar, thereby putting the feed rollers into neutral or reverse and preventing injury. He appeared to regard that as a fail-safe mechanism (T957, T988).
Unfortunately, the efficacy of this safety system depends upon the height of the infeed chute and the forward/reverse roller bar vis-à-vis the operator. If the machine is set too high, then, as I will discuss later, it is entirely possible that the operator can be drawn into the machine and pass below the forward/reverse roller bar and into the machine.
In late 1996, WorkCover New South Wales began developing a Code of Practice for the “Amenity Tree Industry”. A draft Code was produced, dated 28 February 1997 (Exhibit D1-8). The following passage is relevant for present purposes:
The feed chute or feed table of a wood chipper must have sufficient height on its side members to prevent the operator coming into contact with the blades or knives during operation. The outer edge of the chute must be at least 900 mm from any moving part in which the operator could be entangled.
Injury to Mr Peter Bell
On 4 May 1997, Mr Peter Bell suffered the traumatic amputation of both hands while operating a Rivett wood chipping machine in the course of his employment with the Yass Council.
This incident resulted in a prosecution pursuant to the New South Wales Occupational Health and Safety legislation, and civil litigation. It was at this time that Dr Churches first appeared as an expert witness on the Rivett side of the argument, and Mr Simpson and Dr Shafaghi on the opposite side.
I do not propose to examine what happened to Mr Bell in detail. It is Mr Rivett’s attitude to the Bell incident that I regard as relevant.
Mr Rivett said that he attended at Yass within a couple of days of the incident and spoke to those involved. He formed the following conclusions:
·Mr Bell had not attended the training sessions provided when the Council purchased the machine;
·the machine had become blocked through a combination of Mr Bell’s lack of training, and the inadequate maintenance of the machine by the Council;
·in an attempt to manually clear the blockage, Mr Bell leaned into the machine while keeping his knee against the knee bar to open the feed roller. He inadvertently released pressure on the knee bar, the roller dropped and his arms were drawn into the machine. (T942)
Following the injury to Mr Bell, the Geelong City Council reconsidered the order they had placed for several Rivett wood chipping machines. In a letter to Arbor dated 20 May 1997, they advised that they had received information from WorkCover Victoria that the Rivett machines did not conform to Australian Standard 4024 (“AS4024”), in that the distance from the blade to the edge of the chute is less than 143cm (Exhibit P48).
A meeting was convened at Winchelsea, near Geelong, at which Mr Rivett and people he described as “Our Health and Safety Consultants”, Ron Killeen and Douglas Gordon were present.
Following that meeting, it was resolved that the interior of the infeed chute in Rivett machines would be repainted so that it was divided into two areas:
·an area extending from the infeed roller back towards the edge of the chute for a distance of approximately 460mm was painted red, to indicate that entry into that area was prohibited;
·the rest of the interior of the chute was painted with orange and black stripes to denote a “caution” area.
Mr Rivett said that this development was a recognition of the reality that it was difficult for an operator not to put his or her hands and arms a certain distance into the chute when standing close enough to the chute to operate the knee bar.
“(In 1986) we had a decal on the tube (not to) reach in the infeed chute for any occasion. Later on, in the late 1980s, we decided that that was rather a contradiction in terms, because to a certain extent you have to reach into the infeed chute, some distance into the infeed chute, to engage the material. (T867)
In recognition of this, and following the Winchelsea meeting, the training manual (Exhibit P4) was amended so that it demonstrated the striping and carried the caution:
The Safety Orange and Black striped area containing the Caution pictogram is an area of the chute that it is permissible to reach into when engaging material with the feed rollers. This area should never be entered with the head or the shoulders. Head should never pass below the safety feed control bar and the shoulders should never pass the front of the infeed chute. This area should not be entered if you are wearing loose fitting gloves or gloves with large cuffs.
…
INFEED CHUTE DANGER: The Red Prohibition area containing the Prohibition pictogram is an area of the chute that it is not permissible to reach into when engaging material with the feed rollers. This area should never be entered when the engine is running. This area may only be entered after the anvil or knife service safety procedures have been implemented in full. (Exhibit P4, page 8)
Prohibition Notice in Western Australia
Independently of these events, on 21 April 1997, only two weeks before Mr Bell’s injury, an inspector from WorkSafe Western Australia issued a “prohibition notice”, which prohibited the use of Rivett machines, to a firm
called Geoff’s Tree Services on the following basis:
The nip point of the feed drum of the machine is not guarded against injury to people operating/using the machine. (Exhibit D1-29)
Mr Rivett arranged for his consultant, Mr Killeen, to make submissions to WorkSafe Western Australia to have the notice reviewed. The submissions are signed by Mr Rivett. The request states:
I request the review on the following grounds:
That the machine is guarded with a shut off bar, operating as an infeed, neutral and reverse control. There is also a knee bar that lifts the feed roller to maximum height allowing any material being fed into the plant to be removed without obstruction or effort. The infeed chute is tapered on all sides to prevent build up of material and to prevent the operator sitting on the device. The chute has been ergonomically designed to minimize lifting of materials, heights set to allow the operator’s body to contact either safety bar in case of emergency. (Exhibit D1-29)

In further submissions written by Mr Killeen which are also in Exhibit D1-29, the following points are made:
§the feed roller relies on gravity … being gravity operated if a person should allow a hand to enter the feed roller, damage to the skin to minor lacerations would occur.
This is clearly wrong. The roller is forced down both by gravity (it weighs approximately 50kgs) and by four heavy springs. The roller has sharp aggressive teeth. The injuries to Mr Bell, later to Mr Jarvis, and later again to the plaintiff, demonstrate how inapt and misleading the predictions about the severity of injury were.
§the roller can be lifted within 0.25 seconds away from the thickness of fingers or the palm of a hand.
This refers only to the time the machine takes to lift – it does not include the reaction time of the operator, which is likely to be 1.5 – 2.5 seconds. The submission is also misleading on this point.
§the roller provides an adjustable section that prevents direct access to the chipping blade…
This is an absurd assertion. The roller facilitates access to the blade, it does not prevent it.
·The guarding distances comply with Australian Standard 4024.1 (“AS4024.1”) at pages 147, 149.
This is also wrong. As will be discussed later, instead of pursuing this line, Mr Rivett argued at the trial that AS4024.1 did not apply.
As a result of these submissions, the prohibition notice was lifted on 24 April 1997. The letter from WorkSafe Western Australia to Mr Jansen states, inter alia:
I am of the opinion the design and construction of both the Rivett Model 80 and Model 60 Wood/Brush Chippers is such that, provided these items of plant are used in a proper and safe manner by the operators, they would not be exposed to hazards. (Exhibit D1-23)
Both Mr Rivett (T1049-1061) and Mr Killeen (T1232-1243) admitted that the submissions to WorkSafe Western Australia, which resulted in that decision, were inaccurate and misleading.
New South Wales Code of Practice
In August and September 1997, two meetings took place in New South Wales to discuss the implementation of the Code of Practice to which I have previously referred. It is clear that Mr Rivett felt that he was being “set up” in the meetings, and that his point of view was not receiving appropriate consideration. For example, the minutes of the later meeting (Exhibit P44) record that an ergonomist’s report was tabled. The ergonomist concluded that extending the chute length to a minimum of 1400 - 1600mm would not adversely affect the operation of the machine. The minutes record that a “lively discussion” then took place. Mr Rivett made it clear that he disagreed with the consensus reached by the other attendees. When a vote was taken, there were six in favour of the proposal, and he abstained.
The ergonomist was Mr Roger Fairfax, and his report is Exhibit P47. This recommended that the chute should be 750 to 900mm above the ground, and there should be 1450mm between the infeed roller (described as the “rotating chipper blade entrance”) and the edge of the chute, so that an operator who is 1800mm tall could not reach the rotating blade even when leaning against the chute and stretching towards the chipper. The report also referred to the fact that emergency stop devices needed to be fitted so that they could be operated under all circumstances in the event of a mishap.
Mr Rivett clearly rejected the outcome of these deliberations.
The Code of Practice was eventually brought into operation on 1 August 1998 (Exhibit P6). The code provides:
9.3.1.The feed chute or feed table of a wood chipper must have sufficient height on its side members to prevent the operator coming into contact with the blades or knives during operation. The outer edge of the chute must be at least 1450mm from any moving part in which the operator could be entangled.
As a result, Mr Rivett manufactured a drop-down extension table which he described in July 1998 in his magazine “Tree Bits” (Exhibit D1-21). The table provided a length of 1400mm from the nip point to the outer edge. An extension to the knee bar was fitted to the extension. Mr Rivett wrote:
This new feed table is offered as a client choice and is not the recommendation of the company. The company believes its standard chute and an operator certificated training program offers the best solution to productivity and operator safety. Safety in the work place is a personal responsibility.
Once again, Mr Rivett was prepared to place total reliance on the standard chute, which did allow operator access to the feed roller, and training.
It is difficult to reconcile Mr Rivett’s comments about the importance of training with his comments in the letter to Mr Yianni, that the company was required to offer the training program, and that “it may be declined” (see paragraph 37).
There is no evidence that the “Tree Bits” article was ever brought to the attention of Mr Zwar, or anyone else at WMC, during the events leading up to the purchase of the new machine.
Injury to Mr Russell Jarvis
On 13 November 1998, Mr Russell Jarvis was injured in another Rivett wood chipper machine when his right arm was engaged by the feed roller. As the date indicates, this incident occurred during the period when WMC were corresponding with Arbor about purchasing the new machine.
The outcome of this incident, so far as Mr Rivett was concerned, was similar to that involving Mr Bell. Again he concluded that Mr Jarvis’ injuries were the result of:
·a lack of training (T944);
·the machine becoming blocked through lack of training (using wood that had been cut too short – T945);
·Mr Jarvis attempting to clear the blockage manually, while the machine was still operating, by leaning right into the chute and putting his hands past the feed wheel. (T944)
Again, Mr Rivett refused to accept that the design of his machine, and in particular the length of the chute, played any part in Mr Jarvis’ injury. He again emphasized training and maintenance.
This is another example of where it is difficult to reconcile Mr Rivett’s alleged attitude to training, as I will discuss in the next section, and his failure to emphasise training to WMC while negotiations continued during this period.
H. Training
When WMC purchased the first wood chipping machine in 1986, they also paid for the Rivett training course. The purchase order (Exhibit D1-14) is dated 1 July 1986. This was amended on 1 August 1986 by a number of additions including “operator training program on site” at a price of $400.
Mr Rivett said that he personally attended at Roxby Downs to demonstrate the machine, and later re-attended because they were having trouble chipping very hard Mulga wood. He said that he met with the relevant people and they took the machine out into the scrub and he demonstrated how to use the machine. He said he spoke to both the proposed operators of the machine and the mechanics who would be maintaining the machine (T858).
Mr Rivett described what he would have said during the training process, from the initial safety checks and starting the machine through to shutting it down. He said he would discuss the basic functions of the machine and the technology involved. He would have demonstrated the various controls, outlined basic maintenance checks such as the sharpness of the knives and the anvil, and demonstrated how to check the various aspects of the engine such as fan belts, water levels, etc. He said that he would have demonstrated how to feed material into the machine butt first so that the operator is less likely to be snagged on a fork or on a spike of wood (T867).
Mr Rivett said that he would have demonstrated the use of the leg lift bar and the forward/reverse roller bar. He would have demonstrated where to stand when operating the machine to avoid whiplash. In particular, Mr Rivett said that in 1986, he would have told the trainees that the operator should not place his or her hands inside the infeed chute on any occasion (T867).
It would appear that none of this training was passed on to the members of the Green Machine when they began using the old machine in 1993.
Mr Zwar said that he knew of one person who had been involved with operating the old machine, Mr Derek Bilney. He was unable to recall whether Mr Bilney ever came to Callana Road and showed him how to operate the machine (T1323-4).
Mr Rivett said that if WMC had purchased the training package in 1999, the training would have been basically similar to the training he gave in 1986. He said that he would have emphasised the need to stand erect when
feeding material into the machine. He said:
Good posture is important for preventing any injuries, back injury or whatever. The arboricultural industry – because you are carrying trees and moving heavy weights – has a potential to cause injuries, because you are crouching and twisting and working in uneven surfaces. It is preferable to keep people standing erect, and at the same time grab the branch and slide it in and turn around, then grab the next branch and slide it in. Sometimes you have to bend down to get the branch and other times you pull it in. (T870)
Mr Rivett said that he would have trained operators not to allow material to run through their hands once it had been engaged by the feed rollers. He said:
If you’re going to leave your hand there, dragging over your hand, particularly if it’s been fed in head first or if there’s a stump sticking out, it’s going to catch on your hand or glove or arm or whatever, so no, you engage the material and then leave the machine to do its job.”
Mr Rivett said that he would always have emphasized that it was inappropriate for the operator to put his or her head or shoulders into the chute. He described it as unnecessary as well as unsafe (T876).
It would appear that none of these basic operating techniques were passed on to WMC and hence to the Green Machine members, except to the extent that they are described in the manual. Mr Zwar said that it was not emphasised to him that any such training was important. He said:
I’m not really certain, but I don’t think there was any emphasis from Rivetts on the certified training program. My recollection is that because we had operated an old machine that was difficult to use, the new machine had features that made it easier to use and would be easy to operate or easier to operate. The core members of our group had been involved in the mulching project, had been involved in using the old machine for many years. Also there was the extra fee for that and I don’t remember it being specifically discussed, and that certified training program wasn’t taken up. (T1298)
The essence of Mr Zwar’s recollection is supported by Mr Rivett’s recollection. He said:
I can remember it being discussed. I think the nub of the situation at the end of the day was that ‘We bought a second-hand machine because we don’t have money to buy a new one. We have operated the previous machine for umpteen years, we don’t really need you, thank you very much’.
Mr Zwar described the training he would have given new members of the Green Machine as follows:
If they were new to the project, had not been involved at all, before work started, before the machine was switched on, I would walk around the machine with them pointing out the safety features, the signs, the decals, I would also refer to the sign that I had made up and laminated and placed at the side of both the old and then subsequently the new machine. I had made a number of copies of that. These were kept in the shed and, as they deteriorated, they were replaced.
New operators sometimes didn’t actually see the machine, they just helped by pulling branches and green stuff in for whoever was feeding the machine. Quite often a new person would do that for quite some time until they became more familiar with the machine, how to use it, the safety bars and so on, the reversing and forward lever, and they generally wouldn’t use it until they were more familiar with it, sometimes after having volunteered for a number of weeks. Generally speaking, any younger people volunteering, people like Bradley Stratford and the Evans boys when they were younger didn’t actually feed the machine, that happened when they were older and more experienced. (T1299-1300)
Mr Zwar said that he was not certain that he would necessarily have been aware of when young volunteers, such as Conor and Christopher Evans, began using the controls on the machine. He said that generally their parents would have trained them, and they would have decided when that was appropriate (T1300). I have no evidence of what training the parents had, to pass onto their children, because the parents did not give evidence. However, it is clear that they did not receive any training from Mr Rivett.
It is apparent that Mr Zwar was not fully aware of the importance of standing erect when feeding vegetation into the machine. When asked whether he was standing upright while doing so, Mr Zwar said:
A.I can’t say now whether my head and shoulders were above it or below it. Some of the time they would have been above, some of the time below. I’m a bit taller than average and I suspect it is more likely that I would have been towards or above the roller bar at least some of the time.
Q.    And some of the time you would have been beneath or below the roller bar.
A.    Yes.
Q.Likewise, if you trained volunteers to operate the machine you did not tell them that they had to keep their head and shoulders above the reverse feed roller bar when feeding the machine.
A.    I don’t specifically remember telling anybody that.
Q.I take it that it follows, from that, that if you saw anyone operating the machine with their head and shoulders below the reverse feed roller bar you would not step in and say to them ‘That’s not an appropriate method of operation’.
A.I don’t think I would have done that. If it appeared they were operating the machine safely in all other aspects I don’t think I would have picked them up on that.
(T1449)
I have no information as to what Mr and Mrs Evans might have passed on to their sons by way of training, since neither of them gave evidence. However, it is notable in the video (Exhibit P5) that Mr Evans was not displaying any of the benefits that he might have received from Mr Rivett’s training. He was feeding the material in without standing upright at the face of the infeed chute, his head and shoulders were below the level of the forward/reverse control bar on occasions, he was allowing material to pass through his hands after it engaged in the feed roller, while at the same time looking away for the next piece of material to insert, and he was using his foot instead of his knee to operate the knee bar.
Conor told me that he learned how to work the machine by observing adults and gradually becoming used to its controls. His said that placing your hands inside the chute a certain amount was unavoidable, and he did so, but only to the extent of about 200mm or so (T79). He said that he remained bent over as he was feeding the material in (T80). He would sometimes allow the material to run through his hands as it was being dragged into the machine “just to make sure it was still going in really” (T155). He said that he observed others doing the same thing. He was aware of the fact that branches should be fed in butt end first. He acknowledged that this minimised the chances of being caught by a tight fork or being snagged, a matter he described as “commonsense really” (T155).
Conor said that he had been told by his parents never to put his head or any body part inside the chute (T79, T134, T154).
Conor said that he recognised the operation manual for the new machine (Exhibit P4) because his mother had showed him the document and told him to read it. He said that after the new machine arrived (in early 1999):
When the new machine came, we went back to just dragging the materials, until the adults learnt how to use the machine, and then it was slowly taught to us, as in the previous machine. (T76)
When asked if he read the manual for the new machine, he said that, as he did with the old machine, “Not thoroughly, again, just browse through” (T76).
Mr Walsh QC, counsel for WMC and the other third parties, put to Mr Simpson, the engineer called by the plaintiffs to give expert evidence about the machine, that the training Conor received from his parents was good. Mr Simpson agreed (T413). Mr Simpson was not qualified as an expert on the subject of training, so I place little weight upon his answer, even though it was given without objection.
However, Mr Simpson’s answer must be considered in the context that Mr Rivett asserted that the most important safety factor was that the operator must be standing upright when feeding material into the machine, so that in the event that he is snagged, the head or shoulder will contact the forward/reverse control bar, push it forward, so that the operator is not dragged in.
Mr Eriksen, counsel for the plaintiffs, made the following points:
·       The Green Machine members were not told that any of the control bars were safety bars (Conor pp78-79, Chris p598);
·       They were never told to remain upright or erect whilst operating the machine (Conor p153, Chris p599);
·       They were never told that their head and shoulders must remain above the height of the forward/reverse control bar at all times (Conor p82, Chris p599);
·       It was never suggested to them that, if they became caught in any way, they should use their head to push the forward/reverse control bar to activate reverse (Conor p82).
I agree. I would add a further factor:
·They were never told that the bottom of the infeed chute should be no more than 600mm from the ground, so that the forward/reverse roller bar is below the level of the operator’s shoulder.
As soon as he saw the machine during the inspection at Port Adelaide on 31 August 2005, Mr Rivett commented that it was not correctly configured for operation. He said:
A.Because the machine should be level, the chassis should be level and that will mean that the infeed chute here is 600 above the ground (indicates), the top surface of the bottom infeed chute layer is 600mm above the ground.
Q. As at the present time its approximately 700, would you agree with that.
A. Yes.
(T1009)
Mr Brian Vasey, the Occupational Health and Safety Consultant engaged to give expert evidence by WMC’s solicitors, inspected the machine on 12 July 2000 in the presence of Mr Zwar. He noted that the height of the lower edge of the feed chute from the ground was 740mm, whereas Mr Simpson on 4 December 2001 noted it at 710mm. Dr Farhad Shafaghi measured the height at 570mm when he viewed the machine on 21 April 2003. In his report, Exhibit P27B, page 5, Mr Vasey states that he found that the lower edge of the feed chute could vary between 600mm and 800mm by adjustment of the jockey wheel (paragraph 2).
There is no evidence as to the height of the infeed chute above ground on the day of Conor’s injury. There is no evidence that any of the people involved with the Green Machine, or at WMC, were aware that this was a significant issue. It is nowhere stated in the Training and Operating Manual (Exhibit P4) that this is a significant issue.
The best that Mr Rivett could come up with was to draw attention to page 13 of Exhibit D1-3, the Operating and Parts Manual, which contains a drawing of the machine showing its dimensions with the machine in a level attitude (T1116). This is the only other manual in evidence. It makes no reference to the height of the machine either.
The Training and Operating Manual for the machine (Exhibit P4) contains the exhortation:
Do not operate this machine before you have been trained in its safe operation and have read the Operator and Maintenance Manual. (page 5)
As far as the evidence shows, there is no such document as the Operator and Maintenance Manual.

Mr Rivett acknowledged that the wood chipper is a dangerous machine for someone who is not adequately trained. After all, the Operating and Parts Manual (Exhibit D1-3) contains a picture of a gravestone and the words:
WARNING Do not let this person be you. Don’t ever take the machine for granted. This is when an accident will happen. The machine is designed to do a job, and it does. The chipper disc turns very fast and can be dangerous! The feed wheels are designed to pull limbs and branches into the chipper. They really do not know the difference between a branch or a hand, they just do their job” (page 6).
He said that after being trained and issued with a certificate, every trainee was provided with a copy of the Training and Operating Manual (Exhibit P4). On the basis of that training, a trainee would know:
·Not to put his foot on the knee bar.
·Not to put his head and/or shoulders in the chute.
·To keep his head above the forward/reverse control bar at all times so that he will hit the bar if drawn in.
Conor received none of this training. Taking all of the above factors into account, I conclude that his training was seriously inadequate.
I. Expert Evidence
I heard evidence from five people who were presented as experts in certain areas. Mr Colin Simpson and Dr Farhad Shafaghi are engineers who were called by the plaintiffs to give expert evidence on the design of the machine. Professor Alexander Churches is an engineer called by the first and second defendants for the same purpose. Mr Brian Vasey was described as an occupational safety expert who had originally been retained by the solicitors for WMC, but who was called by the plaintiffs. Mr Ronald Killeen had similar qualifications to Mr Vasey and was called by the first and second defendants. I also heard evidence on these issues from Mr Nicholas Rivett who, although he has no formal engineering qualifications, has vast experience in the areas discussed.
It was apparent that, with the exception of Mr Vasey, all of these witnesses had adopted positions in relation to the Rivett Wood Chipping Machines on previous occasions, and when they gave evidence before me, they were determined to defend that position. Each of them had given evidence in proceedings arising out of the injury to Mr Bell in 1997, which resulted in both criminal prosecution and civil litigation. They clearly identified themselves as being on one side of the dispute or the other. I therefore treat the expert evidence with some caution.
I commence with the evidence of Mr Rivett.
Mr Nicholas Rivett
Mr Rivett has a Diploma of Horticulture which he received in Melbourne, and Certificates in Arboriculture which he studied for and received in England in 1973-4.
In 1969 Mr Rivett commenced an arboricultural and landscaping business. After his time in London, he began importing various pieces of equipment associated with arboriculture and gradually became involved with machinery. Initially he began importing “drum chippers” which worked by a different method, and in 1983 he began importing disc wood chippers into Australia of a basic design similar to the machine in question here. He described how the first machines he imported from Morbark, in America, had a standard chute which was 600mm long.
In 1987 Mr Rivett won a contract to supply 12 machines to the Victorian State Electricity Commission, and in discussion with their engineers and ergonomists, it was agreed to provide a chute that was 960mm long (T844). It was this extension to the chute which was the subject of the letter to the Townsville City Council to which I referred earlier (see paragraphs 53-55). It was one of these original machines which was sold to Roxby Management Services Pty Ltd in 1986, and was used in the establishment of the town of Roxby Downs, and which was later used by the Green Machine before the new machine was purchased.
Mr Rivett explained that during the 1980s, they advised operators that putting their hands into the infeed chute to any extent at all was prohibited. He said:
Later on, in the late 1980s, we decided that that was rather a contradiction in terms, because to a certain extent you have to reach into the infeed chute, some distance into the infeed chute, to engage the material. That’s why we extended the infeed chute so that you could reach in to engage the material but not far enough to get caught by the mechanism. (T867)
Mr Rivett explained that the American machines had a mechanism to lift the top feed roller to allow larger material into the machine. He later developed the knee bar across the bottom of the machine so that the roller could be lifted while still feeding in material with both hands (T874).
Mr Rivett said that when the machine in question was built in 1997, his company was one of the main suppliers of wood chipping machines in Australia. By that time he had sold about 11,000 machines (T889).
Mr Rivett said that the machine was manufactured by Rivett in mid 1996 (T897), sold to Arbor, which was the sales and marketing division of the business (T891) and, as I have already described, sold to Mr Langfield in March 1997 (T893). Arbor purchased the machine back from Mr Langfield so that it was available for sale in 1998 to Western Mining, as I have also previously discussed.
I have already discussed Mr Rivett’s evidence about the incidents where Mr Bell and Mr Jarvis were injured in 1997 and 1998 respectively, and his dealings with the authorities in Victoria and Western Australia, and New South Wales arising out of those incidents.
Mr Rivett’s fundamental position was that the machine in question was safe provided it was set up maintained and operated correctly. He explained this as follows:
But if he is operating our machines standing correctly and if he is pulled in towards the machine he comes in contact with both the lift and crush leg bar and the direction control bar, so two events happen. If he hits the lift and crush bar first the feed roller goes into neutral and/or then into reverse, or the feed will lift up, in which case the drive is disengaged and he simply pulls the branch and his glove and everything back out again. (T957)
Mr Rivett said that alternatively the operator would come into contact with the direction control bar, which would also cause the feed roller to go into neutral and/or then into reverse, thereby avoiding injury.
It is clear that the effectiveness of these safety mechanisms is entirely dependant upon the height of the forward/reverse control bar relative to the height of the operator’s shoulder.
For example, Mr Rivett was shown a photograph (Exhibit P1, photograph 76A), taken by Mr Vasey on 12 July 2000, showing Mr Zwar feeding material into the wood chipper in question here. As I will shortly relate, Mr Vasey said that when he measured the height of the infeed chute above ground level on that occasion, it measured 740mm.
When he examined the photograph, Mr Rivett commented that the machine was inappropriately set up and that the infeed chute was too high. He said:
And you can see that the chassis of the machine should always be operated in the level attitude. Now, the whole infeed chute mechanism and everything is all designed around the basis that the machine is operated in a level attitude. By dropping the draw bar like that they raise the infeed chute at the back by – I mean it is measurable but I would think nearly 200mm. So instead of the knee bar being below the knee you can see in the photograph that it is well above the knee. That has a number of other problems, in that the direction control bar (which I have referred to as the forward/reverse roller bar) you can see here is now in a vertical attitude instead of leaning out. … So the bottom guard should be 600 from the ground to the inside of the chute and the inside of the top of the guard should be 1200 from the ground. And then the control bar is another 150mm above the inside of the top of the chute. When you compute all of that to the operator, that means that it is (should be) very difficult and very awkward for the normal stature of the operator to actually lean in and reach in to the infeed chute because it is so low and you have got to crouch down. With the operator operating in that position (as shown in the photograph) it is almost inviting you to lean in. So it is just totally wrong. (T918-919) (The words in brackets within the quotation are mine.)
When asked in examination-in-chief whether this issue is the subject of training, Mr Rivett said:
It’s in the manual. (T920)
However, there is no mention of this issue in either of the manuals in evidence (Exhibit P4 and Exhibit D1-3). The best that Mr Rivett could do in re-examination, after he had been challenged in cross-examination by Mr Walsh QC was to point out that, in Exhibit D1-3 at page 13, there is a diagram of the machine which shows it in a level attitude (T1116). If the height of the machine is so central to its safe operation, as Mr Rivett suggested, then the lack of any mention of this issue in either of the manuals is, in my opinion, a very serious omission. Mr Zwar and other members of the Green Machine were operating the machine with the chute set at too high a level, thereby depriving them of the safety attributes which Mr Rivett said were present in the machine. Mr Rivett said that he was not previously aware of the fact that this topic was not mentioned in the manuals. (T1108)
When Mr Rivett was shown a video tape (Exhibit P5) of the machine being operated by Mr Mick Evans, he pointed out a number of other deficits in the way Mr Evans was operating the machine. For example, he mentioned Mr Evans’ lack of eye protection, the fact that he was presenting the head of the branch to the feed roller instead of the base of the branch, and the fact that the machine “wanted to reject” a piece of foliage indicated that the knives were very dull and the machine had not been properly maintained (T923-4).
In cross-examination, Mr Rivett acknowledged that at times Mr Evans’ head was lower than the forward/reverse roller bar while he was feeding material into the machine, although he had not passed underneath it. When asked whether, if he had been snagged with his head at that level, he could be drawn in without striking the infeed roller bar, I thought Mr Rivett’s reply was strained and artificial. He said:
I don’t think that’s necessarily the assumption. I think it would depend on how he responded to being snagged, which would normally be standing up or whatever, so you come back in contact with the bar. … But we also don’t know what height the infeed chute was set up, we can’t see from the video… (T990)
Again, Mr Rivett returned to the importance of setting the machine at the correct height.
Mr Rivett had a number of objections to extending the length of the infeed chute to 1500mm, as was suggested by Mr Simpson and Dr Shafaghi. For example, he said that it would make it more difficult to get material in (T933), that it would require the operator to lift the material higher in order to feed it in (although he was referring there to an extension table rather than a longer chute) (T936), that being too far away from the infeed roller makes it difficult when you are handling thin whippy foliage (T937), there is a greater chance that the foliage would foul the forward/reverse roller bar (this seems also to be a reference to the extended table rather than the longer chute) (T937-8). With specific reference to drop-down extension tables, Mr Rivett said that he had seen people riding on them from place to place while the machine was still operating (T964).
None of these objections apply to an extended chute. They apply almost exclusively to a drop-down extension table. I had the distinct impression that Mr Rivett was seeking to bundle all these objections up together, in order to avoid acknowledging that an extended chute is a feasible and inexpensive safety measure, as the ergonomist argued in 1997 (see paragraphs 66-67).
Mr Rivett was happy to acknowledge that the wood chipping machine is a dangerous piece of equipment when it is operated by someone who is not adequately trained (T982).
The fundamental problem with Mr Rivett’s position is that, from his perspective, in order for the machine to be operated safely, the operator must be well trained and competent, and the machine must be correctly set up and maintained. Unfortunately for his case, a vital aspect of the machine being correctly set up has not been covered in the relevant manuals supplied with the equipment, so that a competent operator might know how to set the machine up properly. AS4024.1 requires that the designer of a dangerous machine should take into account the fact that a machine may not always be operated in an entirely correct manner by people who are well trained, experienced and competent. Mr Rivett’s approach makes no allowance for the possibility of human error caused by distraction, loss of concentration, habit, fatigue, the general environment, untidiness of the work site, or sheer inadvertence or accident (see AS 4024.1 – 1966, section 3.4 – Human Error).
Mr Rivett’s total reliance on training and operator competence is at odds with the attitude he displayed to WMC when it purchased the machine, namely that training “may be declined”.
Further again, Mr Rivett’s stubborn refusal to accept the proposition that extending the chute length on his machines would render them safer seems to have become an article of faith to him. In my view, his attitude is unreasonable. Lengthening the chute, must, as a matter of logic, make it safer, and the risk of injury to the operator would therefore have been be reduced.
Mr Colin Simpson
Mr Simpson is an engineer who also holds a degree as a Master of Safety Science from the University of New South Wales. He is a member of Engineers Australia, and is a member of the Ergonomics Society of Australia and is thus qualified to call himself a professional ergonomist. The addendum to his Curriculum Vitae (Exhibit P16C) indicates that his study of ergonomics included concentrated studies of anthropometry and human reflex and reaction response to various stimuli. He has participated in research concerning reaction times related to motor vehicle driver responses. His postgraduate degree in safety science included detailed studies in human reflex and reaction responses to varying stimuli under varying conditions. He said that he has given expert evidence relating to human reaction time and responses in the Supreme and District Courts of New South Wales, Queensland and the Australian Capital Territory on numerous occasions.
Mr Simpson first became involved in these issues when WorkCover New South Wales asked him to analyse a Rivett wood chipper in 1998 and check whether it complied with AS4024.1.
Since that time, he has written numerous reports, arising out of the Bell and Jarvis incidents, as well as in this matter.
As I said earlier, Mr Simpson first saw the wood chipper in question on 4 December 2001 at Roxby Downs in the company of Mr Zwar. He had been retained by the solicitors for WMC for this purpose.
Mr Simpson drew the following conclusions in his reports (Exhibit P16):
·Under most situations, the feed roller is the dangerous part of the machine. It is fitted with very aggressive bars across its outer diameter that are designed and intended to grip and chew into the bark and wood of material being fed into the machine. This can, very clearly, also perform the same function in tearing into the flesh and bones of persons who are unfortunate enough to, for whatever reason, enter the infeed system. (Exhibit P16, page 22)
·AS4024.1 refers to the need for designers to take into account the possibility of human error. For example, in repetitive work, the operator might be distracted soon after observing a hazard, the speed with which the operator is required to monitor information, the need to guard against operating procedures based on habit, fatigue, the general working environment including lighting and vision, noise and hearing, heat and cold, and general untidiness can all have an effect upon the operators ability to perceive a hazard (pages 15-17).
·It is not practical to place physical guards between the operator and the feed roller since this would interfere with the operation of the machine. The appropriate method in such circumstances is the principle described as “guarding by distance”.
·The issue which gave rise to the greatest controversy between the engineers was the minimum criteria laid down by AS4024.1 in relation to guarding by distance. In a table on page 147 of the Standard (figure A2), the minimum distance required between the barrier and the danger point, for barriers of a given height, is set out.
·If the height of the protective structure was 1000mm, then the amount of distance guarding required would, according to the table, be 1300mm.
The point of contention is that at the bottom of the table, it is stated:
*Protective structures less than 1 000 mm height are not included because they do not sufficiently restrict movement of the body.
…
NOTES:
1.There should be no interpolation of the values in the Table.
2.…
·In the Rivett wood chipping machine, the height of the danger zone was approximately 800mm.
·Because the height of the protective barrier (ie. the bottom edge of the infeed chute) is less than 1000mm, then the distance guarding should be no less than that which is appropriate for a 1000mm high barrier, ie. 1400mm (T277). He pointed to draft European Standards EM13525:1999, paragraph 4.3.3.1 which provides:
In machines where the working position of the lower edge of the infeed chute is between 600mm and 1000mm from the ground, the minimum horizontal distance from any part of the chute outer edges below 1000mm to the reference plane shall be 1500mm. Where the chute outer edges extend above 1000mm, EN 294:1992 table 2 applies.
·This was not interpolation of the figures in the table, this was extrapolation. Having regard to the warning mentioned above, namely that protective barriers less than 1000mm high do not sufficiently restrict movement of the body, distance guarding by itself will still not be sufficient.
·The infeed roller in the subject machine operated at a rate of 600mm per second. The research establishes that an operator would take a minimum of one second before it would be possible to carry out an evasive action. If there is no perception of imminent danger, this can be as much as 2.5 seconds (T295). At that rate, if the operator’s hand becomes snagged and is drawn into the machine, it will travel between 600 and 1500mm before the operator can take effective action.
·If the operator is snagged and is drawn into the machine, and if his shoulder or head misses the forward/reverse roller bar on the way in, which is entirely possible, then that control mechanism will not act to prevent injury (T383).
·If the chute was 600mm longer, providing approximately 1500mm guarding by distance, this would give the operator an additional second within which to react and hit the forward/reverse roller bar in order to save himself. He said, “It won’t guarantee that entry won’t be made into the feed wheel, but the chances of it happening I think are greatly reduced” (T384). Indeed, without objection, Mr Simpson offered the opinion that on the balance of probabilities, contact with the infeed roller would be avoided (T384).
·As an ergonomist, extending the chute by 600mm would have no deleterious effects upon the operation of the machine (T287).
·A drop-down extension table is less desirable than an extended chute, because it allows access to the feed rollers from the side, but it would still be an improvement (T422, T487).
·The painting of the orange and black stripes on the interior of the infeed chute, making it permissible for the operator to insert his hands to that extent was a “backward step”, since it brought the hands to within 300 to 400mm of the infeed roller, allowing only 0.5 to 0.66 seconds to react.
·In relation the opinion of Mr Rivett and Professor Churches that the machine was safe so long as the operator’s head and shoulders were kept out of the infeed chute, this did not provide adequate protection to the operator in the event that he became snagged, if he slips or otherwise looses balance, or otherwise makes an error of inadvertence (T393).
·As to the argument of Mr Rivett and Professor Churches that a drop-down feed table only encourages people to crawl into or sit on the machine while it is operating, Mr Simpson said that he thought that the probability of that occurring “would be tantamount to assuming that someone was about to commit suicide. The risks would be so great and extremely obvious” (T392, T495-6).
·As to the argument that a longer chute simply increases the temptation of the operator to lean in to clear blocked material, Mr Simpson argued that the use of a push-stick is equally as effective (T397).
·When Professor Churches opinion was put to him that if Conor Evans had been standing up when he was snagged, his head would have hit the forward/reverse control bar, thereby stopping then reversing the infeed roller, Mr Simpson disagreed. He said:
They get pulled into a straight line between the point where they have been grabbed and the shoulder and by necessity the head and neck goes in the same straight direction, downwards. They may, may, strike their head on the top edge of the chute but not necessarily the control bar. (T454)
Dr Farhad Shafaghi

In summary, Dr Nunn said:
Again, I emphasise as in previous documentation, that this man has had a very significant physical loss, with a very traumatic right transradial amputation. Unfortunately he has found it enormously difficult to move on psychologically, and importantly re-establish an educational or training direction, and establish a long term productive, what would ideally be a non physical, work path. In the longer term I have concerns how he will cope from a psychosocial perspective, and limitations he may have from a physical point of view.
(Report dated 26 July 2005, page 3, part of Exhibit P9)
I accept all of the above evidence. It is undeniable that Conor has sustained a very severe injury and despite his courage and resilience, he has been left with significant residual disabilities. I agree with the submission of Mr Eriksen:
… the plaintiff has been denied the opportunity to pursue his career of choice and engage in his sporting activities and will obviously suffer significant deprivation of quality of life as a result of the injury in the future.
Since he was so young at the time of the injury, and is still young, the effects of the injury will be present over a very long period of time and will have a serious effect upon every aspect of his life. This is particularly the case since the plaintiff was a fit and athletic young man who loved, and clearly would have continued to enjoy a physical lifestyle.
In my opinion, the plaintiff’s injuries and their sequelae call for a substantial award by way of general damages. I award $130,000 in this regard, of which I proportion $60,000 to the past.
Interest on General Damages
Interest is payable at the rate of 4% per annum over half the period since the accident[33]. The calculation is therefore $60,000 x 4% x 2.8 years, ie. $6,720.00.
[33] see Wheeler v Page (1982) 31 SASR 1, MBP (SA) Pty Ltd v Gogic (1990-91) 171 CLR 657
Special Damages
These have been agreed in the sum of $78,515.89.
Past Earning Loss
At the time of the injury, Conor was still a student at school. He gave evidence, and I accept, that it was likely that he would have pursued a career in a motor vehicle-related industry once he had left school (T65, T109, T110).
It is asserted on behalf of the plaintiff that, but for the accident, he would have undertaken an apprenticeship and obtained trade qualifications as a diesel mechanic, and worked in the Roxby Downs area. Mr Eriksen referred to the literature in Exhibits P35 (a report of the South Australian Centre for Economic Studies entitled “The Gross Economic Impact of the Proposed Expansion of Olympic Dam on the South Australian Economy” dated March 2005), and P36, (a report prepared by the Australian Bureau of Statistics entitled “A Snapshot of Roxby Downs” dated 19 November 2002), and argued that with the healthy economy in the area, and with the potential for further growth in that regard, there is a strong likelihood that the plaintiff would have been able to obtain high wages compared with the rest of the State.
The Plaintiff asserts that his past loss of income, after tax is $63,469 less earnings to date in the amount of $36,918 leaving a net amount of $26,551.
The defendants argued that this is excessive on the following basis:
·The claim assumes that the plaintiff would have had well paid, secure employment from the moment he left school.
On the balance of probabilities, and having regard to the economic conditions in the area, I have little doubt that would have been the case. I reject this submission.
·The assumption that he would have received State average weekly earnings is totally unrealistic.
For the reasons quoted above, I reject this submission as well.
·The calculation of State average weekly earnings is flawed.
The calculations were admitted by consent, Mr Clifton was not called and cross-examined and these criticisms were not put to him. I therefore see no reason to enter into that debate.
·The plaintiff’s family moved from Roxby Downs to Wirrabara which led to a period of unemployment. That would have occurred irrespective of the accident.
In my view, on the balance of probabilities, had the plaintiff obtained secure and highly paid employment at Roxby Downs, he would not have accompanied the family to Wirrabara when they moved – he was happy to move away from the family to Clare in 2004 in order to obtain employment as an apprentice.
·The plaintiff ceased work voluntarily in November 2004.
At that time he was employed and being paid as an apprentice spray painter, and yet was being used as a welder. But for his injury, I find on the balance of probabilities that he would have been able to obtain an apprenticeship of his own choice and would have not suffered interruption to his employment of this type.
·The plaintiff has lost his driver’s licence and is disqualified until January 2006.
I accept that this is a valid consideration, although if the plaintiff was employed as an apprentice diesel mechanic at Roxby Downs, the position is unclear as to whether he would necessarily have lost his employment. However, I am prepared to make some allowance for this aspect.
·The plaintiff has worked from time to time for minimal income.
I find on the balance of probabilities that this would not have occurred but for the injury.
In all the circumstances, I assess the plaintiff’s net past earning loss after tax, reducing it by 25% having regard to his drink driving conviction, in the sum of $19,875.00. Interest is payable at 6.5% for half of the period, namely $3,617.25 ($19,875.00 x 6.5% per annum x 2.8 years).
Loss of Future Earning Capacity
As to future loss of earnings, I am reminded that there is a difference between “loss of earnings” and “loss of earning capacity”. In Bremert v Clark[34] Bray CJ said:
It is for loss of earning capacity, not for loss of earnings, that the plaintiff is to be compensated (Arthur Robinson (Grafton) Pty Ltd v Carter [1968] ALR 257). But earning capacity must comprise not only the ability to work in some sort of occupation, but the availability of work in that occupation. As I see it, a refrigerator salesman has no earning capacity as such at the North Pole or a salesman of domestic heating appliances on the Equator.
[34] (1966) 8 SASR 294 at 296
In Medlin v [SGIC][35], McHugh J said:
Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of a value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.
[35] (1995) 182 CLR 1 at 16
In Husher v Husher[36], the High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) said:
Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff’s economic loss “by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss”. But damages for both past loss and future loss are allowed to an injured plaintiff “because the diminution of his earning capacity is or may be productive of financial loss”. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.
No doubt the past may provide important evidence about the plaintiff’s earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff’s past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of pasts events may be, that evidence is not determinative of an issue about loss of future earning capacity.
[36] (1999) 197 CLR 138 at 143
In Todorovic v Waller[37], Gibbs CJ and Wilson J said:
Certain fundamental principles are so well established that it is unnecessary to cite authorities in support of them. In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries.
…
… it is obvious that it is impossible to assess damages for pain and suffering and loss of amenities of life by any process of arithmetical calculations. It may be less obvious, but is no less certain, that the assessment of damages for future pecuniary loss resulting from personal injuries can never be a mere matter of mathematics. It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. In the case of loss of earning capacity it is necessary to compare what the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition. In many cases this means that the court has to engage in “a double exercise in the art of prophesying”: Paul v Rendell (1981) 55 ALJR at 372; 34 ALR at 571. Of course in some cases of serious injury it will be possible to say that the plaintiff is probably capable of earning nothing in the future. However, in no case can there be any solid basis on which to determine what the plaintiff would have earned if he had not received the injuries in respect to which he sues. Actuarial tables will show the average number of years which will be lived after a certain age by those alive at that age, but will not show that it is probable that the plaintiff, even if in good health, would have conformed to the average. No evidence can possibly indicate whether the plaintiff, had he not been injured, would have remained in good health, and continued to be employed at any particular rate of earnings. For these reasons, damages for financial loss likely to result from personal injury “can only be an estimate, often a very rough estimate, of the present value of his prospective loss”: British Transport Commission v Gourley [1956] AC 185 at 212 per Lord Reid. Ultimately the process must always be one of judgment rather than calculation.
[37] (1981) 150 CLR 402 at 412-413
Using the calculations of Mr Clifton, Mr Eriksen argued that if I assess Conor’s future earning loss on the basis that he has been prevented from becoming a diesel mechanic, then, applying a discount rate of 3% (Todorovic v Waller (supra)), the net present value of his loss of future income, after tax is $1,271,769 (Exhibit P28A, page 21).
Alternatively, if Conor, but for the injury, would have been continuously employed at the rate of average weekly earnings as determined by the Australian Bureau of Statistics, using the discount rate of 3% the net present value of his loss of future income is $953,104 (Exhibit P28A, page 16).
In the further alternative, if Conor, but for the injury, had been continuously employed as a labourer, then using the discount rate of 3%, the net present value of his future loss of earnings is $858,075.
The defendants argued, and the plaintiff concedes, that he has a substantial residual earning capacity.
Mr Walsh QC argued that since Conor’s past net earning loss was only $26,500, or approximately $5,000 per annum, that should be the basis of calculating his future loss. In my opinion, this submission is without foundation. It ignores the need to distinguish between earning capacity and actual earning loss, as the authorities cited require me to do.
However, the plaintiff’s past earning loss may provide some guide to the extent of his loss of earning capacity. On the figures which I have already accepted, but for the injury he would have earned approximately $63,500. In fact he earned $36,918, or approximately 60%. Both of these figures are artificially low because the plaintiff was receiving rates of pay for apprentices rather than those payable to a qualified tradesman.
It is true that the plaintiff has displayed a remarkable capacity for hard work since his injury. He has worked at Roxby Downs refuelling aircraft and detailing rental cars, he has delivered pizzas, he has worked for a crash repairer and a Toyota dealership doing car detailing work, he has worked in metal fabrication, and as a spray painter and a welder in an agricultural machinery manufacturing business in Clare. He has also worked as a casual fencing contractor in Kangaroo Island, and has done some mechanical and body work on his own vehicles with a view to establishing a car restoration business (which, at this stage, does not hold out a realistic prospect of healthy remuneration in the medium term).
In assessing the plaintiff’s loss of future earning capacity, I do not overlook the cautionary comments of Dr Nunn and Mr Wilson-Brown about the plaintiff’s current physical capacities. The fact that his joints will degenerate at a faster rate than average if he continues in his present vein, the possibility that he will suffer a psychological reaction if his optimism about obtaining employment or setting up a business does not prove justified, and his general approach to life once he obtains a more realistic view of his long-term capacities, all militate against the likelihood that he will be able to keep up his present rate of physical activity. He will be competing in the workforce against able-bodied applicants, against whom he will always be at a disadvantage.
Keeping in mind that this process is one of judgment rather than calculation, I conclude that the plaintiff has lost 50% of his earning capacity as a result of his injury. I find on the balance of probabilities that, although it is quite possible that he might have obtained employment such as that as a diesel mechanic, the most probable outcome is that he would have found employment at least at the level of average weekly earnings, as established in Mr Clifton’s figures. I take into account that the plaintiff would probably have continued to work in the Roxby Downs area where it is likely, having regard to economic conditions, that employment would have been available to him into the longer term. Indeed, I find that the level of average weekly earnings may be conservative, and that the rates of pay in such areas may well be in excess of those which I am prepared to act upon. In all these circumstances, I consider that the appropriate figure for the plaintiff’s loss of future earning capacity is 50% of $953,104, namely $476,500.
I note that this approach, namely taking an estimate of the extent of the plaintiff’s diminished earning capacity as a percentage of his full earning capacity, is consistent with the approach taken by Robertson DCJ in this court in Edwards v Butler[38], relying upon Murray v Dawson[39], Dessent v Commonwealth[40] and Carson v Knott[41].
[38] [2004] SADC 190 at p.83
[39] (1996) 24 MVR 294
[40] (1997) 13 ALR 437
[41] [1999] SASC 71
Past Loss of Superannuation
On Mr Eriksen’s figures, the plaintiff earned $36,918, and superannuation contributions of $3,256. If, as I have accepted, he would have earned $63,469, then he would have received $5,594 in superannuation contributions from his employer. Accordingly, his loss under this head is $2,338.32. Interest is payable at 6.5% per annum for half the period, namely $425.57 ($2,338.32 x 6.5% x 2.8 years).
Future Loss of Superannuation
Mr Clifton calculated that the plaintiff will lose $112,289 in superannuation contributions if his total future earning loss is $953,104 (Exhibit P28A, page 17). I judge that he will lose 50% of that, so I assess his loss of future superannuation contributions as $56,144.50.
Wilson v McLeay
This is a head of damage whereby compensation is sought for loss and expenses occasioned by loved ones visiting the plaintiff in hospital. The plaintiff concedes that all expenses were met by the third defendant, WMC. In Wilson v McLeay[42], Taylor J held that expenditure must have been actually incurred (page 527). In Griffiths v Kerkemeyer[43], Stephen J allowed that if no expenditure had occurred because of the impecuniosity of the relative, then an allowance might be made, but not otherwise. That is not the case here. I make no allowance under this head.
[42] (1961) 106 CLR 523
[43] (1977) 139 CLR 161 at 178
Beck v Farrelly
There is a claim for damages of this type, namely for services rendered gratuitously by the family and friends of the plaintiff to assist him with his personal needs, domestic chores and the like. There is very little evidence on this point. The plaintiff is a very independent person who is largely self-sufficient. I allow $1,500 under this head.
Future Medical and Prosthetic Expenses
It is asserted on behalf of the plaintiff that he will require a body-powered prosthesis replacement every nine months. Mr Wilson-Brown, the prosthetist who has dealt with the plaintiff since his injury, said:
Q.… Now, if one accepts that in the foreseeable future Conor is going to do such things as fencing, spray painting, panel beating, would you expect there to be a high attrition rate on his prosthetic device.
A.Yes, it’s really more than I’ve expected that Conor was – I know he’s a very physical man but actually seeing this does demonstrate the actual things he has been doing. I think things like fencing or using an axe or a sledgehammer, that would put a lot of force, a lot of wear-and-tear on the prosthesis.
Q.I know it’s difficult and it depends on what he’s doing over a period of time but if he continued to do that for the foreseeable future what would be your expected life span of the body-powered prosthesis.
A.Well, there’s a number of different components of a prosthesis which can age in different ways but I would say, just for the sheer forces involved, I’d say anywhere between six and 12 months for replacement.
(T312)
I note the comment that it is also possible to replace part of the prosthesis, at a cost of $5,459.58 (T323).
Having regard to the actuarial calculations in Exhibit P57, I note that the amount claimed for replacement of a body-powered prosthesis at the rate of $9,556.34 every nine months is $335,722. I think it is appropriate to allow 2/3 that figure which, in my opinion, makes adequate allowance for the possibility that the frequency will be 18 to 24 months rather than nine months on the one hand, and that if the frequency is greater, the cost will be lower. I therefore allow $223,815 under this head.
As to the claim for a myo-electric prosthesis, the plaintiff has had one since the injury, but has barely used it. On that basis, the defendants argue that there should be no allowance under this head. However, I note the evidence of Mr Wilson-Brown that as patients get older their attitude to such prosthesis often changes. In the event that they start a relationship, or have children, or change their employment, the better cosmetic effect of a myo-electric prosthesis becomes more appealing (T306).

There is also the possibility that if the plaintiff develops repetitive strain injuries with the use of the body-powered prosthesis, the myo-electric prosthesis may become more useful to him.
The plaintiff claims a number of expenses involved with the replacement of the myo-electric prosthesis to commence in five years from now, which must be a completely theoretical figure, and these have been calculated by the actuary on the following basis:

·    Replacement of Lithium Ion Battery – every two years at $350

$   3,717

·    Electrodes –yearly at $1,837

$ 39,790

·    Full Hand Service –yearly at $1,500

$ 32,490

·    General Service and Clean – every six months at $680

$ 29,747

·    Socket Adjustment – every six months at $290

$ 12,686

·    Socket Replacement – every two years at $2,400

$ 25,485

·    Total

$143,915

I am not satisfied that the plaintiff will commence full, regular use of a myo-electric prosthesis in the next five years. However, I accept that it is probable that he will commence to use one within the next 15 years, in the circumstances above described. If so, then there will be a corresponding decrease in the requirement for replacement of his body-powered prosthesis. Accordingly, I allow $60,000 in that regard.
Dr Nunn also referred to the possibility that the plaintiff might be a suitable candidate for titanium implants to improve the functionality of his prosthetic devices at some time in the future. This technology is being developed overseas but is only in the trial stage in Australia. I note Dr Nunn’s comment that it is too early in the plaintiff’s recovery to consider such surgery at this point. If the plaintiff did undergo such an operation, then the cost was estimated at about $60,000. If such an operation was undertaken, then it is more likely that a myo-electric rather than a body-powered prosthesis would be applied and this is one of the considerations that would be taken into account before the decision was made to embark upon such surgery (T360).
There is also the possibility that the plaintiff may have to undergo minor surgery if he develops a painful neuroma on the stump of his right arm (T361).
I allow the sum of $20,000 to cover the contingency that the plaintiff will require further operative treatment. The total figure for future medical/prosthetic expenses is therefore $223,815 plus $60,000 and $20,000, namely $303,815.
Future Services
It is submitted that when the plaintiff becomes independent, he will require assistance with such household duties as working at heights and areas of general maintenance, which will not be possible with his disability. I agree with counsel that a modest award is called for in this regard. I allow $5,000.
Summary of Heads of Damages

Pain and Suffering

  Past

       60,000.00

  Future

       70,000.00

Past Economic Loss

       19,875.00

Past Loss of Superannuation

         2,338.32

Future Loss of Earnings

     476,500.00

Future Loss of Superannuation Contributions

       56,144.50

Wilson v McLeay

-

Beck v Farrelly

         1,500.00

Past Special Damages

       78,515.89

Future Equipment and Prosthetic Needs

     303,815.00

Future Assistance

         5,000.00

Interest –

                 Past Pain and Suffering

         6,720.00

                 Past Economic Loss

         3,617.25

                 Past Loss of Superannuation

            425.57

TOTAL

$ 1,084,451.53

P.     Judgment

There will be judgment for the first plaintiff against the three defendants in the sum of $1,084,451.53. There is no reduction for contributory negligence. I apportion 70% of the judgment against Rivett and Arbor, and 30% against WMC. The claims against the second, third and fourth third parties is dismissed. I will hear the parties as to costs.
There will also be judgment for the second plaintiff against the three defendants in the sum of $20,000. I will hear the parties as to any consequential orders.

· Replacement of Lithium Ion Battery – every two years at $350	$ 3,717
· Electrodes –yearly at $1,837	$ 39,790
· Full Hand Service –yearly at $1,500	$ 32,490
· General Service and Clean – every six months at $680	$ 29,747
· Socket Adjustment – every six months at $290	$ 12,686
· Socket Replacement – every two years at $2,400	$ 25,485
· Total	$143,915

Pain and Suffering
Past	60,000.00
Future	70,000.00
Past Economic Loss	19,875.00
Past Loss of Superannuation	2,338.32
Future Loss of Earnings	476,500.00
Future Loss of Superannuation Contributions	56,144.50
Wilson v McLeay	-
Beck v Farrelly	1,500.00
Past Special Damages	78,515.89
Future Equipment and Prosthetic Needs	303,815.00
Future Assistance	5,000.00
Interest – Past Pain and Suffering	6,720.00
Past Economic Loss	3,617.25
Past Loss of Superannuation	425.57
TOTAL	$ 1,084,451.53