Ferenczfy v JohnsonDiversey Australia Pty Ltd
[2012] SADC 22
•1 March 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FERENCZFY v JOHNSONDIVERSEY AUSTRALIA PTY LTD
[2012] SADC 22
Judgment of His Honour Judge Nicholson
1 March 2012
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
The plaintiff was working in the delicatessen section of a supermarket. She suffered burn injuries to the ankle areas of both feet caused by scalding with hot water when a hose became detached as she was walking past the water outlet. The defendant had supplied and installed the relevant hose and a series of brass fittings used to attach the hose to the hot and cold water tap assembly already in place at the worksite. The defendant also assumed an obligation to regularly inspect and maintain the hose and the means of its connection to the brass fittings.
Held: Defendant is liable to the plaintiff for the injuries suffered; the defendant’s negligent conduct was a cause of the detachment of the hose at the time the plaintiff passed by; damages assessed.
Workers Rehabilitation and Compensation Act 1986 (SA), s54; Evidence Act 1929 (SA), s45A; Superannuation Guarantee (Administration) Act 1992 (Cth), referred to.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Bryan v Maloney (1995) 182 CLR 609; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; McVicar v S & J White Pty Ltd T/As Arabsteed Hotel [2007] SASC 107; (2007) 98 SASR 160; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; McLaren, Maycroft and Co. v Fletcher Development Co. Ltd [1973] 2 NZLR 100; Rogers v Whitaker (1992) 175 CLR 479; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Technilock (Aust) Pty Ltd v Mondoquip Pty Ltd (SC(SA)) Full Court, 6 August 1999, BC9904456; Jones v Dunkle (1959) 101 CLR 298; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; Vozza v Tooth and Co Ltd (1964) 112 CLR 316; Dibbins v Dibbins (1978) 80 LSJS 165; Wheeler v Page & Harris (1982) 31 SASR 1; Graham v Baker (1961) 106 CLR 340; Mann v Ellbourne (1973) 8 SASR 298; Medlin v SGIC (1995) 182 CLR 1; Fox v Wood (1981) 148 CLR 438; Bresatz v Przibilla (1962) 108 CLR 541; Campbell v Nangle (1985) 40 SASR 180; Fitzgerald v Goonan [2000] SASC 332; Grincelis v House (2000) 201 CLR 321; Todorovich v Waller (1981) 150 CLR 402; Golden Eagle International Trading Pty Ltd v Zhang (2007) 234 ALR 131; Van Gervan v Fenton (1992) 175 CLR 327; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; Tubemakers of Aust v Fernandez (1976) 10 ALR 303; Tabet v Gett (2010) 240 CLR 537, considered.
FERENCZFY v JOHNSONDIVERSEY AUSTRALIA PTY LTD
[2012] SADC 22
CONTENTS
Paragraph Number
Introduction
[1]
Description of the tap assembly
[10]
The circumstances of the accident in more detail
[18]
The plaintiff’s evidence relevant to the accident
[19]
Evidence of Diana Andrew
[25]
Evidence of Mary Kennedy
[29]
Other non-expert evidence relevant to the issue of the immediate cause of the accident
[30]
Conclusion as to the immediate cause of the accident
[33]
The nature of the defendant’s relationship with Woolworths and by extension with Woolworths’ employees including the plaintiff
[35]
The plaintiff’s case against the defendant in essence
[51]
The defence – in essence
[52]
Expert evidence relevant to the issue of liability
[54]
Evidence of Dr Graham Powell
[57]
Evidence of Grant Nelson
[73]
Evidence of Gregory Richards
[77]
Non-expert witnesses relevant to the issue of liability
[87]
Evidence of Kevin McCarthy
[88]
Evidence of Barry Rowe
[103]
Evidence of Robert Smart
[106]
Evidence of Timothy Marrocco
[117]
The causation question
[155]
Hose struck by the trolley
[159]
Hose mistreated by Diana Andrew
[160]
Repeated use/misuse
[161]
Repeated use leading to viscoelastic creep
[162]
Tampering with the clamp
[163]
Defective clamp
[164]
The pressure reducing valve
[165]
Increased pressure caused by kinking
[166]
Further observations concerning the causation question
[167]
Some findings of fact relevant to liability
[171]
Conclusion as to the cause of the accident
[177]
Was the defendant negligent?
[181]
Damages
Matters not seriously in contest or otherwise readily established from the evidence
[188]
The plaintiff’s pre-accident circumstances
[201]
The plaintiff’s post-accident history to the date of trial
[205]
Medical evidence relevant to the plaintiff’s complaint of ongoing pain in her left ankle
[233]
Mr Harries
[234]
Dr Grieve
[238]
(Associate Professor) Mr Greenwood
[240]
Assessment of the medical evidence relevant to the cause of pain in the left ankle
[244]
Other evidence bearing on the plaintiff’s complaint of pain
Evidence of Dr Asokan
[246]
Evidence of Nandor Ferenczfy
[248]
Evidence of Olive Blackman
[252]
Findings
[258]
Assessment
Non-economic loss
[260]
Loss of earning capacity
[264]
Past economic loss assessment
[267]
Interest on past economic loss (wages)
[274]
Past loss of superannuation entitlements
[275]
Future loss of earning capacity
[277]
Future loss of superannuation
[281]
Past special damages
[283]
Future special damages
[284]
Past gratuitous services
[285]
Future paid assistance
[287]
Future equipment needs
[289]
Should redemption payments received by the plaintiff be deducted from any award?
[292]
Summary of damages assessment
[305]
Introduction
In July 2002 the plaintiff was working as an employee of Woolworths Limited or a related company (Woolworths) in the delicatessen section of its Tea Tree Plaza store.[1] On 26 July 2002 the plaintiff was badly scalded as she walked through a jet of hot water at ankle height. She suffered nasty burns in the area of both ankles. The accident occurred when a hose blew off plumbing fittings attached to a hot water source. The plaintiff alleges that the accident was caused by the negligence of the defendant who supplied Woolworths with the hose and plumbing fittings.
[1] The plaintiff’s substantive position at Woolworths was as a service delicatessen supervisor. However, following some conflict with the manager of the delicatessen at Woolworths Golden Grove the plaintiff was transferred, as a supernumerary, to the delicatessen at Woolworths Tea Tree Plaza, in July of 2002.
The delicatessen section of the Tea Tree Plaza store consists, in part, of a counter at which customers are served and underneath which, are glass-fronted display cabinets. Ordinarily, the serving staff operate in a galley type walkway behind the counter. From that walkway the staff can pass through an entryway into another, back of house, section of the store, being an area that is not accessible by customers. This can be described as a kitchen and coolroom area which services the delicatessen serving area. It comprises walking space, a series of stainless steel benches with sinks and a large refrigeration unit which contains the bulk supplies of delicatessen items from which the display counter cabinets are regularly replenished.
The entryway is, in fact, a doorway without a door and is approximately 1.17m wide. Employees pass through this entryway, in each direction, many times a day as they go about their various duties. Exhibit D17 is a not-to-scale drawing showing the delicatessen counter and the entryway through to the kitchen and coolroom area.
As can be seen on D17, immediately inside and to the right of the entryway is an area indicated by the term “Hand Sink”. That area can be seen from the reverse angle (that is looking towards the entryway in the direction of the public area from a position inside the kitchen and coolroom area) in the series of photographs, exhibit P3B. The first photograph in P3B offers a clear representation of the area described as “Hand Sink” on D17. The other photographs in P3B show close up views of the tap and hose assembly in place under the sink. The photographs in P3B were taken on 29 July 2002, some three days after the accident the subject of these proceedings, and for all material purposes, apart from the positioning of the hose itself, show the set up as it existed at the time of the accident.
On the 26th July 2002, some time after 3 o’clock but before the plaintiff’s finishing time for that day of 4.30pm, the plaintiff was pushing a standard issue trolley with boxes of “redskins” (delicatessen items) which, at that point, were surplus to need, through the entryway. She was returning from the display cabinets in the public area to the kitchen and coolroom area. Her intention, on passing through the entryway, was to veer left and to return the surplus product to the coolroom (marked on D17). As she stepped through the entryway with the trolley in front of her the tap and hose assembly which can be seen in the photographs in P3B was immediately to her right and only a very short distance from her legs.
As can be seen most clearly in the second photograph in P3B, the white hose was attached to a series of brass coloured plumbing components which themselves were connected via a silver coloured T-shaped bridging mechanism to a hot water tap and a cold water tap. The net effect, as can be seen in the photographs, is that hot or cold or a mixture of hot and cold water would pass through a brass pipe which ran parallel to the ground and approximately 25cm from the ground, until it entered the white hose attached.
Shortly before the plaintiff commenced her journey with the trolley another Woolworths employee turned on the hot water tap, unravelled a length of the attached hose and took it out through the back door of the kitchen and coolroom area. She used it to clean out a large garbage bin of the type shown in exhibit P44. The direction in which she took the length of hose out through the back door has been marked on exhibits P45 and P46. As the plaintiff pushed her trolley through the entryway and drew adjacent to the plumbing connections the white hose blew off. The plaintiff suffered severe scalding burns of both ankles.[2] The trial has been conducted on the basis that all of the brass componentry remained intact. Only the hose itself blew off, thus enabling a jet of hot water to emerge with force at ankle height parallel to the floor.
[2] Exhibit P3A is a series of photographs of the plaintiff’s injuries taken very soon after the accident.
In September 2002 the plaintiff returned to work on light duties at the Woolworths Tea Tree Plaza store. However, in February 2003 she stopped working and has not returned to any employment since that time. The plaintiff was 50 at the time of the accident and in these proceedings has brought a claim for substantial damages including past and future economic loss.
Dangerous environments can be easy to identify with hindsight. Nevertheless, the potential for the plumbing set up, as shown in the photographs in P3B, to cause a scalding injury to an employee walking in close proximity to it, particularly given the fact that the water is not directed downwards but outwards parallel to the floor and directly across the employee walkway, is manifest. The plaintiff is not permitted by the laws of this State to sue her employer in negligence at common law.[3] The defendant in these proceedings is the contractor who supplied the hose and several of the plumbing components to the Woolworths Tea Tree Plaza store.
[3] Workers Rehabilitation and Compensation Act 1986, s54.
Description of the tap assembly
In order to understand the plaintiff’s case against the defendant as pleaded and prosecuted at trial, it is first necessary to have a better understanding of the equipment supplied to Woolworths by the defendant.
The two taps and the silver T-shaped bridging mechanism that can be seen in the photographs in P3B had already been installed in the Woolworths occupied premises before the defendant became involved. The defendant, as part of a contract with Woolworths to supply all of its stores nationally with particular cleaning products and mechanisms for delivery of the cleaning products, supplied all of the brass componentry and the white barfell hot wash hose attached to it that can be seen in P3B. The brass componentry supplied by the defendant was, in all material respects, identical to that tendered as exhibit D58. It can be seen that the brass componentry was attached to the Woolworths supplied T-shaped bridging mechanism by a free-wheeling brass hexagonal nut. Immediately adjacent to that connection is a vertical section the top of which is encased in blue plastic. Thus is a pressure-reducing valve. The final brass component attached to the other end of what is, in effect, a brass pipe is a brass barbed nipple. An example of the brass barbed nipple which shows the barbed nipple itself and the brass hexagonal nut section by which the barbed nipple is screwed into the pipe, can be seen in exhibit P29 (the loose brass shroud section also included in P29 is to be ignored for this purpose). The barbed nipple in use at the time of the accident measured 31mm in length and had five barbs evenly spaced as can be seen in P29.
Attached to the barbed nipple was a hose manufactured by Barfell Industries and supplied to the defendant by Pirtek Sydney Central Pty Ltd, a Pirtek franchisee. The hose was suitable as a “hot wash” hose and the manufacturer’s specifications indicated that it was suitable for use with water temperature up to 85ºC when used at low pressure. The inside bore of the hose was 12.5mm and the hose was manufactured from thermoplastic rubber and elastic polymers.
At the time of the accident the hose was secured to the barbed nipple by a single worm drive clamp. The clamp was manufactured by Norma and was made from stainless steel.[4] According to the manufacturer’s specifications,[5] the clamp was suitable for securing hoses with an outside diameter of between 16-25mm. The external diameter of the hose at 20.4mm was within this range.[6] The bandwidth of the clamp was 12mm. It was tightened with a single screw that had a hexagonal head with a slotted face. It could be tightened by a standard screwdriver, a small spanner, a socket wrench and, if required, with the assistance of a torque wrench. Exhibit P56 is a close up photograph of the single screw of the Norma clamp.[7] However, to the extent that the various marks and deformations on the screw head might be relevant, it should be noted that this photograph was taken on the 12th May 2010 at a time after the screw had been dealt with in the manner described in the reports of the expert witness Dr Powell.[8] Nevertheless, it is an agreed fact that its hexagonal edges had been subject to material deformation due to the slipping of a spanner and/or a socket wrench and that its slotted face had been subject to material deformation due to the slipping of a screwdriver head, during the process of tightening the screw prior to the date of the accident, 26 July 2002.
[4] The Norma clamp was tendered as part of exhibit P4.
[5] Exhibits P24, P24A.
[6] Specification supplied by Pirtek, see exhibit D60.
[7] Exhibit P4.
[8] Exhibit P7.
According to Dr Powell (a mechanical engineer), whose evidence on this topic and in general I accept, the maximum number of barbs on the nipple that could be covered by the Norma clamp, given its bandwidth, was three. Exhibit D58 shows, in general terms, the method by which the barfell hose was attached, with the assistance of a clamp, to the barbed nipple. It can be seen that the hose itself when pushed onto the nipple embraces the whole of the nipple whereas the clamp only covers a smaller section of it. The type of clamp used in D58 is not the type of clamp that was in place at the time of the accident. The clamp in D58 is a Tridon manufactured clamp. Its bandwidth is narrower than that of the Norma. The presence of the Norma clamp at the time of the accident is itself a curiosity because Pirtek supplied the defendant only with Tridon clamps and not Norma clamps (this is discussed further below). At the risk of potentially confusing matters more, it should be noted that on 5 September 2005 a plumber turned hydraulic consultant, Mr Gregory Richards, attended at the Woolworths Tea Tree Plaza delicatessen section at the request of the plaintiff to obtain a sample piece of hose together with a connector. He did this and obtained what is now exhibit P6. It can be seen that the clamp in P6 is a Tridon clamp but one with a bandwidth (approximately 10mm) that is wider than that of the Tridon clamp in D58 (approximately 8mm). Exhibit D58 was sourced from Pirtek shortly before or during the course of the trial.
All of this may not matter at the end of the day. The defendant conceded in open court that it supplied and fitted the Norma clamp (P4).[9] When and in what circumstances this came about cannot be determined on the evidence before the court. In addition to the Norma clamp that was in place at the time of the accident a cut-off section of the hose being the portion that had been attached to the barbed nipple by the Norma clamp is also part of exhibit P4.
[9] T646.
The whole of the tap assembly being the brass componentry that can be seen in the photographs in P3B (and being in the same form as that disclosed in D58) together with 20m of attached hot wash barfell hose was installed by the defendant at the Woolworths Tea Tree Plaza delicatessen section on Wednesday, 23 May 2001. Whilst it is conceded that at the time of the accident (26 July 2002) the hose was attached with the assistance of the Norma clamp[10] the method of attachment of the hose at the time of original installation (23 May 2001) is not at all clear on the evidence. Further, according to the evidence of the defendant’s witnesses, Mr Robert Smart and Mr Timothy Marrocco, both of whose evidence on this topic I accept, Pirtek supplied the defendant with all of the brass componentry including the pressure reducing valve preset at 350 Kilopascals (Kpa) together with the 20m of hose already attached to the barbed nipple. In terms of “installation” all that Mr Marrocco did on behalf of the defendant was to attach the supplied hose system by use of the free-wheeling hexagonal nut to the silver T-shaped bridging piece, as seen in the photographs in P3B.
[10] Exhibit P4.
The matters of fact recorded in this section and in the previous section under the heading “Introduction” are to be regarded as findings of fact. They are not contested and are supported by the specific evidentiary references noted, admissions by the parties or other unchallenged evidence.
The circumstances of the accident in more detail
There were only three people in the immediate vicinity at the time of the accident and from whom the court has heard or received evidence: the plaintiff, Diana Andrew who was using the hose at the time and Mary Kennedy, the delicatessen manager, who was working in the “Sink Area (Deli)” as indicated on D17, at the time of the accident.
The plaintiff’s evidence relevant to the accident
Prior to the accident the plaintiff, in accordance with her duties, had checked the display cabinets and taken steps to top-up the supplies. After doing this she pushed her trolley through the walkway from the public serving area into the kitchen and coolroom area. Her intention was to veer to the left to take unused stock in boxes on the trolley back to the coolroom.[11] According to the plaintiff, as she came through the entryway she was positioned towards the left hand side because she was heading towards the coolroom. She said that the front wheels of the trolley were in her full view as she entered the entryway. She was adamant that at no time before the accident did the wheels of her trolley come into contact with the hose. As she walked through the entryway her feet aligned with the tap assembly. She felt terrible pain and heat across the top of her right foot and then on the inside of her left ankle as she walked past the tap assembly. This caused her to look down and she saw a stream of water coming out of the pipe.
[11] The type of trolley the plaintiff was using can be seen in the photograph behind tab 2 of exhibit P3.
Immediately on being scalded the plaintiff sat down on the ground to pull off her shoes and the two pairs of socks she was wearing. She told the court that she was seated on the floor facing toward the taps when she noticed that the water had been turned off and that “the end of the hose that was attached at the taps was lying on the floor”.[12] She then said this:
I just know – I’m sorry I can’t recall that – all I know is that it was blown off the end of the hose – off the end of the tap, that’s why I knew I got burnt.
[12] T79.
She did not see the hose curled at all only a trail of the hose towards the back door of the kitchen and coolroom area.
During cross-examination the plaintiff agreed that when interviewed by an investigator on 22 January 2003 (some six months after the accident) that which she told the investigator represented her best recollection of the event at that time. She agreed that she told the interviewer that she did not know what happened because she was “too out of it” immediately after being scalded. She agreed that she was in shock and in pain and was focussing on her injuries such that she did not have time to take stock by looking around to see where the hose was. Nevertheless, there is no doubt that the plaintiff was scalded and suffered serious burns as she passed by the tap assembly.
The plaintiff consistently denied throughout her evidence that any part of the hose, either as stretched out or curled under the sink, was struck with her trolley. There is no evidence before the court to the contrary.
The plaintiff also gave evidence, potentially relevant to the issue of liability, to the following effect. She had used this hot wash hose on earlier occasions. At night time and before leaving the premises the staff must clean the floors and the hose is taken around to the front of the delicatessen to wash down the front walkway behind the counters. The hose was usually wound up on a double hook affixed to the wall as can be seen in the first photograph in P3B. When the plaintiff used the hose she would unwind it from that hook. The plaintiff would use the trigger nozzle that had been supplied by the defendant. The type of trigger nozzle can be seen in the photograph marked 10 behind tab four of P3. The plaintiff would simply click it into the end of the hose. She would turn each of the taps on in order to regulate the water flow. Apart from this, the plaintiff never touched any of the plumbing connections and at no time did she observe any other Woolworths employee touching the plumbing connections other than turning the taps on. The plaintiff was not trained to touch or deal with any part of the plumbing installation. She never saw a Woolworths employee trained to deal with the plumbing installation. She did not have access to any tools including screwdrivers or spanners.
Evidence of Diana Andrew
Diana Andrew is now 33 or so. She started work at Woolworths Tea Tree Plaza when she was 15. She does not know the plaintiff personally but would recognise her and remembers her from her Woolworths days. She remembered the occasion when the plaintiff sustained her burns. Ms Andrew left Woolworths a couple of months after the incident. However, she could still remember the location of the delicatessen section and the entryway and walkway past the sink and the hose in question.
She had used the hose on a number of occasions for cleaning. On the day in question she was using it to clean out a wheelie bin similar to that shown in the photograph in P44. She had used the hose for this purpose on previous occasions. On each such occasion the hose was coiled on a wall bracket near the sink. On the day of the accident she took a bin out through the kitchen and coolroom area and through the back door marked on D17 to another enclosed area for the purpose of cleaning it. She then returned to take the hose off the hook. She told the court that she placed the already coiled hose under the sink and unravelled only as much as she needed to take the hose together with its trigger nozzle to just outside the back door. She has marked on a plan[13] the position of the hose after she had unravelled it.
[13] Exhibit P45.
Ms Andrew said she used no force in her unravelling of the hose; she unravelled it carefully and took only the amount of hose that she needed. She left the balance of the hose under the hand basin. “It was basically still curled up from when I had taken it off the wall. It was all wrapped around so it was like a circle sitting on the floor.” She said that the circle fitted under the sink quite comfortably.[14] She turned only the hot water tap on. She was outside for about 3 minutes cleaning the wheelie bin before she heard screaming. Prior to hearing the screaming she had been activating the spray gun by turning the trigger nozzle on and off. Prior to hearing the screaming she did not feel anything by way of tugging of the hose. After she heard the screaming she dropped the hose, ran inside and saw the plaintiff standing screaming with another woman “Mary” who was trying to comfort her. Ms Andrew looked at the hose. She told the court that “it seemed pretty much the same except that the thing had popped off. It was still sitting on the floor and the thing had just popped off, that was it”. The following exchange then occurred:[15]
QWhere are you saying that something had popped off.
AFrom, I think it is like a pipe or a brass pipe. As far as I can remember, the water had been just shooting straight out of it.
[14] T581.
[15] T584.
Ms Andrew gave her evidence very carefully and in some detail. She was quite adamant in her description of the steps she took in undertaking the task before her. I have no doubt that Ms Andrew is an honest witness and was trying to assist the court. Nevertheless, I found the level of detail and her certainty about it to be a little disquieting. At the end of the day, at least until the occurrence of the accident itself, the task she had been engaged in was a common enough and relatively trivial activity. I am doubtful that she would have paid sufficient attention to her movements at the time so as to enable her to give such a detailed description of them accurately. Nevertheless, I am satisfied that her action when using the hose on this occasion were not out of the ordinary. In particular, I accept that she did not yank or pull on the hose in any unusually rough manner.
Evidence of Mary Kennedy
A statement by Mary Kennedy was tendered by the plaintiff with the consent of the defendant. She was the delicatessen manager. At the time of the accident she was washing dishes. She was standing in front of and facing the area marked “Sink Area (Deli)” on the diagram in D17. As a consequence, she had her back to the area where the hose was connected to the taps and to the plaintiff as she walked through the entryway. Ms Kennedy could recall nothing of assistance. She heard the accident as it took place but did not see anything. When she heard screaming she turned around but maintains that she could remember nothing after that.[16]
[16] Mary Kennedy was not called to give evidence at the trial. There being nothing of assistance in the tendered statement (exhibit P47) it would appear that it was tendered by the plaintiff only as a matter of prudence in order to avoid the possibility of adverse comment for not calling Mary Kennedy.
Other non-expert evidence relevant to the issue of the immediate cause of the accident
Kevin McCarthy was the store manager at Tea Tree Plaza and was called by the plaintiff. He told the court that soon after the accident he contacted the defendant and arranged for someone from the defendant to come to the supermarket. I will need to say something further about Mr McCarthy’s evidence on this topic and, in particular, concerning who this person was, what they did and what they said, later in these reasons. However, for present purposes it is sufficient to note that Mr McCarthy took this man to the area where the accident occurred. He was asked if he saw the man do anything with the hose and told the court “Yes, he did cut the bit before the clamp off and gave that to me”. A little later on the following exchange occurred:[17]
QYou took [the piece of hose] into your possession.
AYes, I did. He handed it to me, cutting it off.
QThe clamp was on the hose at the time.
AYes, it was.
QWhereas it’s now separated.
AYes, it’s separated now, but I can remember him handing me the whole lot with the clamp on the hose.
[17] T337.
Mr McCarthy was shown the piece of hose and clamp which is now exhibit P4 and identified it as being the clamp and the piece of hose that was cut off and given to him. Written on the piece of hose (now faintly) in biro is “TTP 26/7/02”. Mr McCarthy identified that as being in his writing. That same day under cover of a memo dated 26 July 2002[18] Mr McCarthy provided the hose and clamp that had been removed[19] to Mr Barry Rowe the then safety manager for Woolworths’ supermarkets. It is not contested that Mr Rowe retained P4 until handing it to Woolworths’ lawyers and that ultimately it found its way into the possession of Dr Powell for the purpose of forensic testing.
[18] Exhibit P25.
[19] Exhibit P4.
There is one more piece of documentary evidence which bears upon the immediate cause of the accident. Exhibit D79 is a facsimile from Woolworths to Workplace Services dated 31 July 2002 some five days after the accident. The intent of its author was to outline recommendations for changes to the workplace environment thought to be appropriate as a result of the accident. In it the accident itself is described in the following manner:
[The plaintiff] received serious burns to her ankles when as she was walking past a hot water hose being used in the serviced delicatessen, the hose blew off from the coupling and sprayed hot water on to her (emphasis supplied).
Conclusion as to the immediate cause of the accident
The eye witness accounts given by the plaintiff and Diana Andrew as to precisely which part of the hose assembly “blew off”, understandably, lack clarity and may be seen as ambiguous and therefore potentially unreliable. Nevertheless, their evidence would seem to be to the effect that they observed the hose itself lying on the ground disconnected from the brass componentry; that is, it was the hose that parted from the barbed nipple rather than the barbed nipple itself or some other component of the tap assembly that “blew off”. That this is in fact what occurred is consistent with the evidence of Mr McCarthy from which it can be inferred that the piece of hose and the hose clamp[20] were quarantined because it was this connection, that is, hose onto barbed nipple, that failed. This conclusion also receives some support from the terminology used in exhibit D79. I am satisfied that this is what occurred.
[20] Exhibit P4.
In any event, that this was the immediate cause of the accident is conceded by both parties. The plaintiff’s case was run on this basis and the defence was conducted on this basis. Ordinarily, such a concession would simply be adopted by the court. Ordinarily, it would be unfair and quite inappropriate to do otherwise because it is on this basis that the parties have made forensic decisions as to evidence obtained and evidence presented to the court. Nevertheless, a finding that the immediate cause of the accident was that just the hose itself blew off, is a crucial first step in the enquiry into whether a negligent act or omission by the defendant materially contributed to the injuries suffered by the plaintiff. For this reason I have spent some time looking at the evidence itself supporting the parties’ concession that the hose blew off the brass barbed nipple.
The nature of the defendant’s relationship with Woolworths and by extension with Woolworths’ employees including the plaintiff
At the time of the accident the defendant company (ABN: 92 080 527 117) was named Johnson Wax Professional Australia Pty Ltd. By the time proceedings were commenced against the defendant it had changed its name to JohnsonDiversey Australia Pty Ltd. The defendant has recently changed its name again; as from 1 March 2010 the entity name is Diversey Australia Pty Ltd. At all material times the defendant has traded under the business name Johnson Wax Professional.[21]
[21] See the Historical Details search, exhibit D68.
At no time during this litigation has the defendant suggested that it was not the appropriate entity to be sued by the plaintiff with respect to the supply, installation and maintenance of the hose and tap assembly at the Woolworths Tea Tree Plaza store.
It is not disputed that the tap assembly together with 20m of attached hot wash barfell hose was installed at the Woolworths Tea Tree Plaza delicatessen section on Wednesday 23 May 2001. However, there was no express admission by the defendant that it was the defendant, Johnson Wax Professional Australia Pty Ltd (as it was known in May 2001) who in fact undertook the original supply and installation.[22] The obligations with respect to supply installation and maintenance of the tap assemblies and hoses in Woolworths’ stores throughout Australia arose pursuant to written contractual obligations entered into between Woolworths Limited and a differently named entity, SC Johnson Professional Australia Pty Ltd. According to the contractual documentation, this entity also purported to trade under the name Johnson Wax Professional and also purported to be registered with the same ABN, 92 080 527 117.
[22] The terms of the admission given in open court were “that installation occurred on 23 May 2001”, see T706. In addition, the defendant did admit (at T646) that it supplied and fitted the Norma clamp (P4) in place at the time of the accident. However it is not necessarily the case that the Norma clamp formed part of the original supply on 23 May 2001.
The documentation said to comprise the written contractual arrangements between this company and Woolworths Limited is exhibit P36. The court has nothing before it as to any relationship between SC Johnson Professional Australia Pty Ltd and the company entity recorded on the Historical Details search[23] Johnson Wax Professional Australia Pty Ltd. It is not clear whether the contracting company is yet another named manifestation of the defendant or an entirely separate corporate entity. As already mentioned, at no time has the defendant sought to make anything of this discrepancy. At all times the defence has been presented on the basis that the defendant contracted with Woolworths in accordance with the documentation in P36.[24] I will, therefore, when considering the nature of any duty of care owed by the defendant to the plaintiff, start from the proposition that it is the defendant company and not some other corporate entity related or otherwise, that assumed in favour of Woolworths a contractual obligation to supply the Tea Tree Plaza tap assembly and hose.
[23] Exhibit D68.
[24] See for example paragraphs 13-18 of the defendant’s written final submissions dated 8 December 2010.
The defendant contracted with Woolworths to supply cleaning products and chemicals to its stores Australia wide. There is nothing in the contract itself in relation to the supply of hoses. However a separate “back of house” chemical agreement[25] includes a provision[26] “heavy duty hoses will be supplied to all departments at a site”. The emphasis in the contract documents is on the supply replenishment and performance qualities of the chemicals. However, in the definitions section for the back of house chemicals agreement there is a reference to “products” which “means the chemicals and the dispensing equipment required for the services… . Dispensing equipment is not itself defined. However, in schedule 1 to the back of house chemicals agreement it is provided (clause 1.1) that the service provider shall supply the products and equipment (listed in schedule 4)…” There appears to be no schedule 4 forming part of the documentation in P36 other than a schedule 4 comprising part of the main agreement which by its terms is plainly not the schedule 4 identified and forming part of the back of house chemicals agreement.
[25] Unsigned and undated, to be found at page 25 of P36.
[26] Clause 1.2(b) of schedule 1, page 41 of P36.
In addition to a contractual obligation to provide heavy duty hoses and unidentified (at least in so far as the evidence before the court is concerned) equipment, the contractual arrangements between the defendant and Woolworths also required the defendant to provide training of Woolworths’ staff and to undertake monthly inspections.
The training obligations are set out in clause 32 of schedule 2 to the main agreement.[27] Material aspects of the training obligation included:
[27] Page 12 of P36.
(a)As part of the provision of the Supply, the Supplier must provide:
(i)training and certification of Woolworths’ Representatives nominated by Woolworths to properly operate, use, store and dispose the Supply;…
A contractual regular maintenance obligation would appear to derive from paragraph 10 of the back of house chemicals agreement.[28]
(a)The Service Provider must provide at least one (1) Service call to a Site in a month and the Store Visit Protocol (as set out in schedule 1(1.7)) must be complied with by the Service Provider.
. . . .
(d)The Service Provider will include equipment servicing in their Monthly Service call and major equipment servicing must be undertaken on a quarterly basis.
There is no mention in the “Store Visit Protocol”[29] of what, if anything, is to be done in connection with checking and/or maintenance of any supplied equipment
[28] Page 32 of P36.
[29] Page 14 of P36.
The contractual documentation is prolix and convoluted. It is difficult to follow particularly given its interlocking definitions and internal cross-referencing. However, what is tolerably clear is that there is no detailed description of the defendant’s maintenance obligations, at least in so far as the supplied equipment is concerned, during each monthly visit to a store.
Whatever be the precise nature of the defendant’s contractual obligations with respect to supply and maintenance of equipment, the defendant did, in fact, supply the Tea Tree Plaza tap assembly and hose as has been described and did, in fact, undertake monthly site visits during which it checked and replenished chemical stocks and checked, maintained and repaired, as thought necessary, the equipment it had supplied.
As a result of knowledge about the circumstances in which its equipment was to be used that the defendant must have acquired during the contracting process and through Mr Timothy Marrocco, the defendant’s employee who installed the defendant’s system at the Tea Tree Plaza store and undertook some of the maintenance visits, the defendant ought to have been aware of the following matters.
The plumbing set up “provided” by Woolworths at Tea Tree Plaza was such that the standard tap assembly supplied by the defendant would operate to permit water to emerge parallel to the floor.
The set up “provided” by Woolworths allowed for either hot water or cold water or a mixture to be utilised.
Notwithstanding any training or instructions given to Woolworths’ employees it was reasonably foreseeable that a Woolworths’ employee might, from time to time, use only the hot water available at the site.
It was reasonably foreseeable that Woolworths’ employees would pass by the plumbing installation at times when it was in use.
As a result of the foregoing, the risk that a Woolworths employee would suffer a scald injury should any of the supplied connections fail so that hot water would flow under pressure parallel to the floor should have been obvious to or, at the least, reasonably foreseeable by the defendant.
In these circumstances, the defendant owed a duty to exercise reasonable care to ensure that the equipment it supplied and maintained was safe for all reasonably foreseeable uses. Such a duty was owed to all persons whom it ought reasonably have foreseen might be harmed as a result of a breach of that duty. Such persons would include all employees at the Woolworths Tea Tree Plaza store who might in the course of their duties find themselves in close proximity to the equipment supplied.
The extent to which a supplier of equipment can be liable for harm caused merely as a result of ordinary wear and tear need not be considered in this case if only because the supplier here (the defendant) also assumed an obligation to perform monthly inspections and maintenance of the equipment.
A duty in the terms outlined above does not impose any obligation on the defendant that could be seen as inconsistent with its contractual obligations owed to Woolworths.[30] The obligation of a supplier and maintainer of equipment in the position of the defendant is not one of guaranteeing its safety. However, given the nature of the equipment supplied and the assumed obligation to check and to maintain the equipment on a monthly basis, the defendant owed an obligation or duty, in favour of the plaintiff, to exercise reasonable care in its efforts to maintain the integrity of the various connections.
[30] See generally, Bryan v Maloney (1995) 182 CLR 609; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.
The question of whether or not the defendant exercised reasonable care in these circumstances is to be addressed with the assistance of the well known observations of Mason J in Wyong Shire Council v Shirt.[31]
A risk of injury which is quite unlikely to occur, . . . may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is farfetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first asked itself whether a reasonable [person] in the defendant’s position would have foreseen that [their] conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable [person] would do by way of response to the risk. The perception of the reasonable [person’s] response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable [person] placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not farfetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[31] (1980) 146 CLR 40 at 47.
As explained by Doyle CJ in McVicar v S & J White Pty Ltd T/As Arabsteed Hotel,[32]
[t]he decision to be made involves what Gleeson CJ described as a “normative judgment” in Neindorf v Junkovich ….. . It is not sufficient for the plaintiff to establish that something could have been done that would have prevented the incident occurring. The Court must also consider what was required of the [defendant] by way of a reasonable response to such risk of harm as should have been foreseen by the [defendant] before the event occurred and not using hindsight to impute the [defendant] foresight of the event that actually occurred… . The ultimate decision is one of fact, not one of law. (References omitted).
[32] [2007] SASC 107; (2007) 98 SASR 160 at [36].
The requirement that the court must put itself in the position of the reasonable defendant as at the time of the events in question so as to determine what would have been reasonable and practicable at that time, taking a prospective view and not employing the benefit of hindsight, is a very important one. The nature and importance of the inquiry before the court in this respect was dealt with at some length by Hayne J in Vairy v Wyong Shire Council.[33]
Look forward or look back?
When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.
There may be more than one place where this risk of injury may come to pass. Because the inquiry is prospective there is no basis for assuming in such a case that the only risk to be considered is the risk that an injury will occur at one of the several, perhaps many, places where it could occur. Romeo was just such a case and so is this. In both cases there were many places to which the public had access and of which the Commission (in Romeo) and the Council (in this case) had the care, control and management. In Romeo, there were many places where a person could fall off a cliff; here, there were many places where a person could dive into water that was too shallow. Because the inquiry is prospective, all these possibilities must be considered. And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as “consideration of the magnitude of the risk and the degree of the probability of its occurrence”. It is only by looking forward that due account can be taken of “the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.
If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was – diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.[34]
[33] [2005] HCA 62; (2005) 223 CLR 422, particularly at [126] ff.
[34] Vairy at [126] to [128], footnotes omitted.
The plaintiff’s case against the defendant in essence
The plaintiff in her amended statement of claim alleges that the accident, and therefore the plaintiff’s injury, was caused by the negligence of the defendant. She has particularised 34 separate allegations of negligence.[35] A number of the particulars do no more than re-state the fact of the accident or make allegations of such generality that they do not identify either a negligent or causative act capable of being supported by the evidence tendered or are simply unsupported by the evidence. A number of the particulars, as to their essential allegation, are repetitive. As the case was presented at trial, the plaintiff’s allegations of negligence, in essence, can be reduced to three.
The plaintiff’s primary allegation of negligence is that the clamping system employed was inadequate and, in particular, that the Norma clamp[36] was inappropriate for the task at hand.[37] The plaintiff alleges that the defendant breached its duty of care in failing to use either, what was described as, a “factory fitted end” or a more substantial clamp with wider bandwidth, to connect the hose to the barbed nipple. A factory fitted end consists of a brass shroud or ferrule which is placed over the end of the hose once it has been pushed over the barbed nipple and the shroud or ferrule is then machine crimped, that is, affixed under significant pressure.[38] The alternative dual worm drive clamp with wider bandwidth, as propounded by the plaintiff, can be seen in exhibit P8.
An alternative submission of the plaintiff is that the defendant was negligent at the time of installation in failing to fit the Norma clamp[39] properly in that it failed to tighten it to the manufacturer’s specification using a torque wrench.[40]
In the further alternative, the plaintiff alleges that the defendant breached its duty of care by inadequately inspecting and maintaining the clamped hose during the period leading up to the accident.[41]
[35] Amended statement of claim filed 20 December 2006 at paragraph 5.
[36] Exhibit P4.
[37] See for example the amended statement of claim at paragraphs 5.4, 5.5, 5.10, 5.11, 5.12, 5.20, 5.21, 5.22, 5.23, 5.30, 5.31 and 5.34.
[38] An example of a factory fitted end can be seen on the piece of hose in exhibit P5. A brass shroud or ferrule of the type in question in its form prior to being crimped on to the hose can be seen in exhibit P29.
[39] Exhibit P4.
[40] This particular allegation is not expressly identified in the plaintiff’s pleadings indeed paragraph 5.29 asserts that the defendant “over-tightened” the clamp. Nevertheless, it was plain throughout the presentation of the plaintiff’s case that an allegation of a failure to tighten the clamp in accordance with the manufacturer’s specification was being pressed. The allegation is set out on page 49 of the plaintiff’s written final submission.
[41] See the amended statement of claim at paragraphs 5.11, 5.12, 5.15, 5.16, 5.17, 5.26, 5.27 and 5.33 and see also the plaintiff’s written final submission at page 49.
The defence – in essence
In its further amended defence and throughout the trial the defendant maintained that it installed hoses manufactured by a reputable manufacturer, the hoses were securely attached by an appropriate mechanism and that any detachment of the hose was not the fault of the defendant.
In its final submissions[42] the defendant maintained that the clamp used was suitable for the task, that there is no sufficient evidence that it was inadequately tightened at the time of installation or at any time throughout the maintenance period and that, in all the circumstances, the defendant was not in breach of duty in failing to use an alternative clamp or a factory fitted end. The defendant also maintains that there is no sufficient evidence to enable a finding as to why or how the hose became detached from the barbed nipple.
[42] Defendant’s written final submission at pages 19-22.
Expert evidence relevant to the issue of liability
The plaintiff adduced evidence from Dr Graham Powell, a fellow of the Institute of Materials, Minerals and Mining UK, a fellow of the Institute of Engineers Australia and a chartered professional engineer. He was, at the time of giving evidence, a member of the School of Mechanical Engineering at the University of Adelaide. Dr Powell’s formal qualifications are impressive and his experience in materials and engineering aspects of materials is impressive. Dr Powell was cross-examined at some length, not so much by way of any challenge to his expertise or as to the reliability of the experimental work he performed but more with the intent of testing the limits of his experimental findings and of the opinions he was able to express. Subject to the qualifications set out in these reasons I accept the evidence of Dr Powell both as to the factual matters concerning his experimental testing and the opinions he has expressed. Dr Powell was a careful witness who gave his evidence in measured terms and readily made concessions as and when appropriate.
The plaintiff also called Mr Grant Nelson who, as Dr Powell’s PhD student, assisted Dr Powell in carrying out his experimental work. The evidence given by Mr Nelson was essentially factual rather than opinion evidence; he provided more detail as to the circumstances of the experimental process undertaken by Dr Powell. Mr Nelson presented as an honest and careful witness. I accept his recollections of the experimental process in which he participated as reliable.
The plaintiff also adduced evidence from Mr Gregory Richards who trained and worked as a licensed plumber but after an industrial accident in 1994 became a plumbing or hydraulic consultant. For reasons I will later set out, I am significantly less confident about the reliability and ultimately the utility of Mr Richards’ evidence than I am about that given by Dr Powell and Mr Nelson.
Evidence of Dr Graham Powell
Dr Powell provided two written reports one bearing the date on its front page June 2006[43] and a supplementary report bearing the date March 2009.[44]
[43] However the footer of each page of the report bears the date June 2005.
[44] Both of Dr Powell’s reports are in the folder marked exhibit P7.
The first report sets out the results of his experimental work designed to test the capabilities of the subject (Norma) clamp[45] as compared with the capabilities of a similar hose clamp with a slightly thinner bandwidth. Exhibit P4 has a bandwidth of approximately 12mm whereas the comparator clamp tested by Dr Powell had a bandwidth of 9mm.
[45] Exhibit P4.
Dr Powell devised a laboratory based experimental process using a tensile testing machine. This machine was employed so as to determine the load required to pull representative hose and clamp assemblies off a barbed nipple. Different clamping configurations were investigated. Dr Powell’s experimental process produced theoretical outcomes in the sense that the tensile testing machine and the experimental procedure relied upon did not replicate the hot wash hose and tap assembly in place at the Woolworths Tea Tree Plaza store. I am satisfied that this failure to replicate the circumstances in which the accident took place is not such as to cause any concern about the utility of Dr Powell’s results and opinions which, in any event, were of quite limited compass.
The method of testing is fully described in Dr Powell’s first report. However, essentially, Dr Powell attached a hose to a “load cell” by use of the Norma clamp[46] for a series of tests and by use of a comparator (9mm bandwidth) clamp for a series of similar tests. For the series of tests using the comparator (9mm) clamp Mr Nelson used a torque wrench to ensure that on each test occasion the hose clamp was tightened to the manufacturer’s recommended torque of 3.0 newton metres (Nm). However, as far as the Norma clamp[47] was concerned it was tightened by Mr Nelson only with the use of a screwdriver. The torque wrench was only used in order to measure the amount of torque that Mr Nelson was able to impart when he tightened the clamp to the best of his ability using a screwdriver but without any other mechanical aid. As it happened, Mr Nelson was able to tighten the Norma clamp to between 1.5-2Nm.[48] It can be inferred from the manufacturer’s recommended tightening torque of 3+0.5Nm[49] that the Norma clamp ordinarily can be tightened using a torque wrench to a greater torque (3Nm) than Mr Nelson was able to achieve using just a screwdriver (1.5-2Nm). A further variable involved in Dr Powell’s experiment was the extent to which he allowed hot water to be circulated through the test apparatus.
[46] Exhibit P4.
[47] Exhibit P4.
[48] It is to be remembered that the manufacturer’s specification, P24A, for the Norma (P4) clamp was a recommended tightening torque of “3+0.5” Nm. This notion of “recommended tightening torque” is discussed further below.
[49] Exhibit P24A.
Dr Powell recorded his test results in the following tables:
TABLE I: Test results for 9mm bandwidth hose clamp tightened to 3.0N.m., 1.0 N.m. and tested at ambient and 70ºC.
Description of test conditions Load (N) Hose clamp tightened to 3.0 N.m. Ambient test conditions 464 - 512 Hose clamp tightened to 3.0 N.m. 70ºC water circulated for approximately 5 mins 320 - 376 Hose clamp tightened to 1.0 N.m. 70ºC water circulated for approximately 5 mins 220 - 264
Table II: Test results for supplied hose clamp tightened between 1.5 and 2.0 N.m. and 70 ºC water circulated for different times.
Description of test conditions Load (N) Hose clamp tightened to between 1.5 to 2.0 N.m. 70ºC water circulated for approximately 5 mins 390 - 394 Hose clamp tightened to between 1.5 to 2.0 N.m. Assembly left overnight, 70ºC water circulated for approximately 1 hr, rested for 1 hr before testing 310 - 322
In his discussion of the results Dr Powell made these, readily acceptable, observations:
1.The [more] a hose clamp is tightened the greater the pressure between the internal bore of the hose and the nipple under the hose clamp band.
2.Hose clamps having a wide bandwidth can apply a pressure over a greater area [than can clamps with a thinner bandwidth] which will [all other things being equal] increase the effectiveness of the hose clamp.
3.A lower, hose clamp, torque will reduce the force required to detach the hose and clamp assembly from the nipple.
4.The larger 12mm bandwidth hose clamp (the Norma, P4) was found to be effective even at the “low torques” of between 1.5 and 2Nm.
5.At “these low torques” the Norma clamp required a similar load to remove the hose as was required for the thinner bandwidth hose clamp (9mm) tightened to a torque of 3Nm.
6.These results reinforce the selection of a hose clamp having a wide bandwidth. A hose clamp having a small bandwidth is not as effective as a hose clamp having a larger bandwidth. Smaller bandwidths reduce the area over which the pressure between the internal hose bore and nipple is applied.
Dr Powell expressed the following, with respect self-evident, conclusion on page 5 of his first report:
The hose end would have become detached from the barb nipple due to the inability of the hose clamp to continue to exert a significant amount of pressure between the inside of the hose bore and the nipple.
Dr Powell also expressed two further conclusions of greater potential significance:
The inability of the hose clamp to exert a significant amount of force on the hose would have been due to the stress relaxation and viscoelastic creep of the hose material that would have occurred over a period of time. The service environment being of an elevated temperature would have decreased the time required for stress relaxation and viscoelastic creep to occur.
The hose water pressure and the stop/start use of the hose would have provided the force for the hose and clamp assembly to spontaneously become detached from the nipple.
I accept that these last two conclusions state a potential cause of the accident in question. Dr Powell, in effect, has given a summary description of what can be expected to occur to a hose assembly such as that in place at the Tea Tree Plaza store, subjected to the type of uses described by Dr Powell over a sufficiently long period of time. Dr Powell’s summary description will stand provided the hose assembly is not checked and appropriately maintained, over that period. However, what would serve as a sufficient period of time for this purpose has not been identified by Dr Powell. Whether or not this, in fact, is the explanation as to how the accident that injured the plaintiff occurred is a matter still to be determined on all of the evidence before the court.
Dr Powell recommended (at page 5 of the first report) that a hose assembly using a “permanent and proven factory fitted end would be the most appropriate solution”. However, he went on to say that if a hose clamp and nipple assembly was to be used then the following should be considered.
(i)A hose clamp “that has a large clamping surface area (bandwidth) and the ability to be tightened to high torques” should be used.
(ii)“Continual tightening of the hose clamp at regular intervals would be required to ensure that the hose end does not come off during normal use”.
(iii)“The end of the hose should be cut off and replaced periodically due to excessive viscoelastic creep/stress relaxation.”
During his evidence-in-chief Dr Powell observed and identified deformation on the internal surface at the end of the piece of hose that failed[50] - “but I wouldn’t call that damage.” The deformations lined up with the barbs on the nipple and served to give additional resistance to the pulling off of the hose.[51] However, during cross-examination, Dr Powell expressed the further opinion that the piece of hose had been permanently deformed and said “I think it’s very close to the end of its working life”. The following exchange then occurred:[52]
QWell, that’s not something is it, that you are able to say without actually testing it.
ANo, I believe I can, because it is permanently deformed.
QYes, but there will be permanent deformation in use in day to day use, would their not.
ASorry?
QIn day to day use in an industrial situation, there will be permanent deformation of the hose such as this.
ANo, I cannot agree with that. The object of using clamps on this type of material is to stay within the elastic limits so you do not get plastic deformation.
[50] Exhibit P4.
[51] T324.
[52] T387.
The use of the term “plastic” deformation is curious. This is not a transcript matter that was raised by counsel or by the court during the trial. Nevertheless, given the context of this discussion my view is that Dr Powell in fact would have said or intended to say “permanent deformation” rather than “plastic deformation”.
After looking at the clamp and the piece of hose[53] Dr Powell agreed that his expectation was that during the course of the deformation occurring such a hose clamp would have required re-tightening and that in the absence of re-tightening it would be easier for such a hose to be pulled off.[54] He agreed that the piece of hose in question had the appearance of one that had been in service for some time but he could not ascertain that period of time.[55]
[53] Exhibit P4.
[54] T347-348.
[55] T373.
Dr Powell’s attention was directed to exhibit P5. He explained how a factory fitted end, as shown in P5, would reduce markedly the viscoelastic creep caused by repeated stress and relaxation of the polymer material in the hose. He agreed that such a factory fitted end would need less maintenance and would have a longer life before it would need to be replaced and would lead to “far less likelihood of the hose being pulled off”. One of the key factors is the larger contact area between the barbed nipple and the hose over which the factory fitted end would apply pressure.
Dr Powell also expressed the opinion that a better performance would be achieved using an 18mm bandwidth clamp such as to be seen in exhibit P8.
Dr Powell did not test the factory fitted end as part of his experiment. He described it as a “proven” factory fitted end because it had been proven in service although he himself had not proven it in service or in any other way. He conceded that any joint must at some point reach a level of failure if enough pressure were to be applied and agreed that if one was aware of the purpose a joint was to serve one would consider the forces in day to day use and design a joint to serve that purpose and not much more.
Dr Powell agreed that he had no evidence before him of the actual pressure that was being exerted on the relevant joint at the time of the accident. He also agreed that his testing did not replicate the nature of the pressures that would have been on the hose in situ.[56] The following exchange occurred during cross-examination:[57]
[56] T389.
[57] T393.
QWhat I say is that you’ve conducted – what I suggest is you conduct certain tests and as we discussed yesterday, you had a hypothesis and the test not terribly surprisingly verified the hypothesis and I don’t say that critically. That’s correct, isn’t it.
AThat’s right, yes.
QBut what – and that leads you to offer a theoretical model for what might have happened in this case when – on the assumption that the hose blew off, is that correct.
AOnce you suggest it’s a model, I’m in agreement with that.
QSo you don’t really know what happened at Woolworths. You are simply proffering an explanation based on your knowledge and experience which you have attempted to verify with your experiment.
ACorrect, yes.
QIt is perfectly possible, isn’t it, that this joint failed for some other reason and I’ll give you – if you don’t want to answer that question in the abstract, I’ll give you some possible examples. Would you like me to do that.
AYes.
QIt’s perfectly possible it failed because for example somebody turned up the water pressure at the time.
AYes.
QIs that possible.
AYes.
QIt’s perfectly possible the joint failed because somebody jerked or pulled on the hose is that possible.
AIf they pulled large – strongly enough, yes.
QAnd it’s perfectly possible for example that someone might have banged into it with a trolley.
AI don’t think that would have caused the trouble.
According to Dr Powell the Norma clamp[58] was satisfactory in terms of its circumference, that is, it was suitable for clamping hoses with a diameter of the one supplied to Woolworths.[59] Ultimately, his evidence concerned the relative merits of different bandwidths and the need for an appropriate torque to be applied to a clamp in use. However, Dr Powell agreed that any level of torque will reduce over time as a function of the properties of the hose in question operating under the conditions in question. Even a factory fitted end ultimately will fail although according to Dr Powell “that time would be very long”.[60]
[58] Exhibit P4.
[59] T396.
[60] T398.
Evidence of Grant Nelson
Grant Nelson provided more detail about the test apparatus that he and Dr Powell employed. The end of the hose nearest the load cell was affixed with a high quality high torque hose clamp of the type seen in exhibit P8, that is, the 18mm bandwidth dual worm drive clamp.[61] Mr Nelson confirmed that at no time during the various experiments conducted did that 18mm hose clamp fail. To this extent, it must be accepted, not simply on a theoretical basis for the reasons given by Dr Powell but as demonstrated during the experiment itself, that the wider bandwidth clamp (tightened to an appropriate torque) performed better than the Norma clamp[62] tightened by Mr Nelson with the screwdriver. However, it is not possible, on the evidence, to know how many more Nms of load would have sufficed to enable the 18mm clamp in P8 to fail.
[61] The experimental apparatus can be seen in a photograph in exhibit P3.
[62] Exhibit P4.
Mr Nelson also told the court that the deformation and bulging of the section of hose that failed[63] would have occurred over an extended period of time. Mr Nelson is 6”2’ and weighs 105kgs. He tightened the subject clamp[64] as best he could in accordance with his physical capabilities using what he regarded to be a screwdriver of the appropriate size which he described as “typically . . . quite a large screwdriver”.[65] He observed damage to both the slot in the screw head and to its hexagonal edges prior to his efforts in tightening the clamp and before any experimental work was done.
[63] Exhibit P4.
[64] Exhibit P4.
[65] The screwdriver can be seen in exhibit P30.
Mr Nelson told the court that he had used clamps of the type in question[66] numerous times before on “air hoses, radiators for example, car radiators, motorcycles… general engineering stuff that you do maintenance mechanical work.” He felt confident in tightening the hose clamp with the particular screwdriver that he used. He said this:[67]
Just, as I’ve found the experience through using hose clamps, that one of the difficult things is your screwdriver slipping out the slot and it’s potentially dangerous. So, a lot of effort was done to sort of try and duplicate what typically could be achieved using the screwdriver. So, the hose clamp was placed on a bench and the force – the screwdriver forced down, so the screwdriver didn’t slip, and obviously damage your hand. But this gave extra leverage to tighten up the clamp and effectively possibly use two – I recall I used two hands on one instant to do it, so to grip the screwdriver and steady it, to do it up as tight as I physically could.
[66] Exhibit P4.
[67] T467.
Mr Nelson said that P24A was the manufacturer’s specification sheet obtained for the 9mm bandwidth comparison clamp but that, in his experience, you could infer that the same recommended torque (3+0.5Nm) would apply to the Norma (12mm bandwidth) clamp.[68] It was his belief that this was the recommended torque that should be applied to the clamp.[69] During cross-examination Mr Nelson agreed that it was only an assumption on his part that the reference to torque levels in the specifications documents[70] was a reference to the manufacturer’s recommended torque. However this is the way he interpreted it and it is consistent with the way he has read and interpreted many similar documents.[71] In this respect it is to be noted that the torque of 3+0.5 referred to by Mr Nelson is in the line adjacent to the heading or identifier “AD”. Page 4 of P24A contains a legend for the document. “AD” is said to identify the “recommended tightening torque in Nm” whereas “PD” identifies the “test torque in Nm” and “BD”, the “fracture torque in Nm”. These latter two figures for the Norma[72] clamp were higher (as would be expected) than the recommended tightening torque; 4 and 5.5Nm respectively. This[73] together with Mr Nelson’s evidence has allayed an initial concern I had that the 3+0.5Nm might have been a maximum recommended torque, any exceeding of which might imperil the integrity of the clamp. In other words, I do not accept the manufacturer’s “recommended tightening torque” as implying that something less would nevertheless be within the recommendation.
[68] Exhibit P4.
[69] T471.
[70] Exhibit P24A.
[71] T511.
[72] Exhibit P4.
[73] I accept P24A as being admissible as a business record within s45A of the Evidence Act1929 or, at least, that having been admitted by consent this is not a matter contested by the defendant. As such, it is evidence of any fact stated in it or any fact that may be inferred from it either taken alone or in conjunction with other evidence.
Evidence of Gregory Richards
Mr Richards became a licensed plumber after leaving school. He started working in domestic housing but in about 1980 he moved into industrial and commercial work involving multi-storey factory complexes, shopping centres and the like. In 1994 he suffered a work accident. It was necessary for him to re-train and he became a plumbing consultant engaged in plumbing design work. He remains involved only in high-rise and industrial complexes. His work essentially involves the preparation of drawings and specifications. He joined the Plumbing Industry Association and, in time, became its president. It was in this capacity that the plaintiff’s instructing solicitor asked him to provide a report in this matter. Prior to this matter he had never provided a report to or given evidence in court. As a working plumber he had experience in fitting hose connections to hot water taps in industrial and domestic situations. In his consulting role since 1994 he has at no time actually designed hose connections for hot water taps.
As a working plumber he would have connected a hose to a hot water outlet on 40 occasions or so. He described the fitting that he observed on 5 September 2005 when he went to get a sample piece of hose and a connector from the Tea Tree Plaza Woolworths store[74] as “unsafe”; “when I was on the tools we would never install anything like that, that is, with a clamp”.[75] He maintained that he would only connect a wash hose taking hot water to a brass metal adapter by use of a factory fitted end. He said that he had never fitted a hot water hose connector without the use of a factory fitted end and that he had always instructed his various apprentices accordingly. Mr Richards identified P5 as an example of a factory fitted end and that this was available at the time he commenced his apprenticeship some 35 or more years earlier. Mr Richards was asked to look at the Norma clamp and piece of hose that failed.[76] The flaring that he observed at the end of this piece of hose would have caused him to take it off the hot water tap “because it’s just unsafe, especially if you were using very hot water”. He explained how in his experience a hose might creep or crawl, that this could take 6 months or it could take 12 months but that it was not possible to know how long.
[74] Exhibit P6.
[75] T417.
[76] Exhibit P4.
It is difficult to assess the weight that can be attributed to Mr Richards’ evidence. I accept that he has honestly told the court of his experience. However, his experience is quite limited and the extent to which it reflects 20th century general plumbing practice cannot be ascertained. Ordinarily, evidence by an expert of their own approach to the task at hand, strictly, is not relevant.[77] The role of expert evidence is to identify the proper or acceptable practices adopted by persons exercising and professing to have the particular skill or expertise in question.[78] The evidence of Mr Richards was reduced to a consideration to what he would have done. I do not understand, and am not in a position to accept, his evidence as having been given in the context of what he understood to be the practices of reputable practitioners undertaking the same tasks. There is little, if any, evidence as to how familiar Mr Richards was with plumbing practices in the industry generally. Furthermore, there were many inconsistencies in Mr Richards’ evidence and he was not at all impressive when giving his evidence.
[77] See, for example, McLaren, Maycroft and Co. v Fletcher Development Co. Ltd [1973] 2 NZLR 100.
[78] Rogers v Whitaker (1992) 175 CLR 479 at 483ff.
A major difficulty in assessing Mr Richards’ evidence stems from the fact that he gave two written reports neither of which was directly relied upon by the plaintiff. Mr Richards in his first report gave answers that were unexpected by the solicitors for the plaintiff. As a result they and Mr Richards met and after further discussions an addendum report was prepared by the solicitors which Mr Richards reviewed, made some amendments to and then signed as expressing his opinions. I am not suggesting that anything untoward was done by or on behalf of the solicitors for the plaintiff in this respect. However, Mr Richards plainly was very inexperienced in giving expert evidence and I formed the view, after reading both reports and hearing from him in the witness box, that he did not have a proper appreciation of his role as an expert witness as primarily assisting the court rather then merely presenting a party’s position.
Mr Richards acknowledged that the first report prepared by him was checked by the then chief executive officer of the Plumbing Association who, according to Mr Richards, was technically experienced and an experienced expert witness. According to Mr Richards, that man agreed with the report and approved of it. It is this report that Mr Richards walked away from when he was asked to prepare a second report on the basis that he had made errors in the first report. However, in answer to a question from the bench[79] Mr Richards agreed “absolutely” that he had read his first report carefully before releasing it just as he agreed in re-examination that he had read the second report very carefully before releasing it.
[79] T455.
I will not stay to set out all of the various discrepancies between the two reports and the evidence given by Mr Richards in court. One example will suffice to show why I am unprepared to accept Mr Richards’ opinions at face value. The first question he was asked to respond to was this:
Was the connection at the clamp, the barb, the hose and the pipe in accordance with the standard of care of a reasonably competent licensed plumber in South Australia prior to 26 July 2002….
Leaving aside the inadmissible nature of the question and any answer to be given as being, in effect, evidence as to the ultimate issue, the answers given in the first report and the second report included, respectively:
The connection of the hose, barb and hose clamp were in accordance with the standard of care of a reasonably competent licensed plumber. However, a factory fitted assembly would have been preferable.
Despite what I said in my [first] report I have never been of the opinion that it was safe plumbing practice to fix a white wash hose onto a hot water outlet by use of a clamp over a hose over a barb.
When asked to compare his two reports Mr Richards agreed that the opinion he expressed with respect to the first question asked of him had been completely reversed in the second report. In addition, in the first report he stated that the clamp examined by him was oversized. This seems to have been the only criticism of the clamp identified in the first report. When pressed during cross-examination[80] Mr Richards maintained his opinion that the clamp was oversized. However, he agreed that if the clamp was not oversized it was otherwise suitable for its intended use. Dr Powell said in his evidence that the Norma clamp[81] was of a satisfactory circumference for the job at hand.
[80] T443.
[81] Exhibit P4.
Mr Richards explained that he did not change his mind at any time he just changed his forms of expression. However, there are aspects of the two reports and his evidence-in-chief which seem to suggest, on any sensible reading of the terminology used, an apparent change of mind. My overall impression was that Mr Richards was insecure in undertaking the task of giving expert evidence and was somewhat malleable. He could only reach his final conclusions after discussions with the solicitors in question following which he significantly altered his mode of expression or changed his mind on critical issues. It is not possible for the court to know which of these alternatives applied in any given situation.
As I say, I accept Mr Richards is an honest witness and one who, insofar as he described his personal experience “on the tools”, tried to assist the court. However, I am not assisted by his evidence as to whether or not anything he said represented good or bad plumbing practice generally.
Non-expert witnesses relevant to the issue of liability
I have no reason to think that any of the non-expert witnesses who gave evidence in this trial, including the plaintiff were not honestly trying to assist the court. That is, not to say that they all were entirely reliable. Memories fail over time and reconstruction often intrudes. Nevertheless, unless and to the extent I indicate otherwise, I accept the evidence given by the witnesses called by both sides relevant to liability issues. I am satisfied that there was a level of exaggeration in the account of the plaintiff concerning the extent of her incapacities said to have been caused by the scalding injuries. I will say more about this when I come to consider damages.
Evidence of Kevin McCarthy
The plaintiff is entitled to damages for economic loss being the extent to which any loss or diminished earning capacity, brought about by the accident, has been and will be productive of pecuniary loss.[209] A plaintiff in an action for negligence is only entitled to recover damages for loss of earning capacity where he or she establishes that their earning capacity has, in fact, been diminished by reason of the negligently caused injury and that any such diminution is or may be in the future productive of financial loss.[210] The issue of whether there is a sufficient causal connection between a breach of duty and the loss or damage claimed is essentially a question of fact to be resolved on the balance of probabilities and as a matter of common sense and experience. This is so even where, as here, the issue of such a causal connection may have been clouded by the decision of the plaintiff to resign her employment at Woolworths in early 2005 which decision may be seen as a more immediate cause of any economic loss suffered thereafter.[211]
[209] Graham v Baker (1961) 106 CLR 340 at 347; Mann v Ellbourne (1973) 8 SASR 298; Medlin v SGIC (1995) 182 CLR 1.
[210] Above.
[211] Medlin v SGIC (1995) 182 CLR 1.
It is the plaintiff’s case that had she not been injured she would have continued to work at Woolworths until her retirement at age 65. I have found that in the circumstances confronting the plaintiff it was not unreasonable of her to, as her counsel put it, “cut her losses” in March of 2005 by taking a redemption payment and resigning. I am satisfied that other factors, unrelated to the accident and the plaintiff’s injuries, were involved in her decision to give up working for Woolworths.[212] However, those factors only assumed any causal effect or contribution, at that time, because of the physical state that the plaintiff found herself in (including her stress and anxiety) and because of the psychiatric difficulties that she had recently experienced. In addition, I have accepted that, from the date of the accident, the plaintiff has been physically incapable of performing the duties of a delicatessen assistant or supervisor at Woolworths involving, as they did, constant standing and walking during the working day.
[212] For example the factors identified in paragraph (xv) under the heading “Findings”, apart from the fostering of Tiffany, were all operating at the time of the decision to resign.
That is not to say that the plaintiff did not retain a residual earning capacity albeit one with respect to which she had limited opportunities to exercise the longer she remained out of the workforce. Nevertheless, I am satisfied that due to a combination of her physical and psychiatric injuries the plaintiff has not been able to return to her pre-accident work on a full time basis since the accident.
Past economic loss assessment
The plaintiff’s effective gross weekly wage as at the date of the accident was $578.90.[213] During the period between the date of the accident and the date she resigned from Woolworths (15 March 2005) she received WorkCover payments in the amount of 100% of her weekly wage for the first 12 months and 80% of her weekly wage thereafter. When assessing damages but subject to contingencies, she is entitled to the amount of gross wages received until the date her employment with Woolworths ceased. She is also entitled to 20%, the unpaid component, of her weekly wages, assessed on a nett basis after tax for that part of the period during which she received only the 80%.[214]
[213] Exhibit D16.
[214] Fox v Wood (1981) 148 CLR 438.
The period of time between the date of the accident 26 July 2002 and date of resignation, 15 March 2005, comprises 52 weeks for the first year and 85.14 weeks thereafter. Ordinarily, the plaintiff would be entitled to recover 52 weeks at $578.90, that is, $30,103. In addition, she would be entitled to recover 85.14 weeks at $463.12, being 80% of her gross weekly wage, that is, a further $39,430. The total figure for gross wages received until date of her redemption and termination of employment is therefore $69,533.
My methodology in arriving at the figure of $69,533 for gross wages received until date of termination is as set out above. However, in this respect I note that counsel, in the plaintiff’s final written submissions, claimed only the amount of $52,890.86 under this heading but without providing any detailed methodology for arriving at that figure. In addition, I note that in a letter from the solicitors for Woolworths to the solicitors for the plaintiff dated 21 December 2006 and which purports to set out the break down for Woolworths’ recovery notice, the amount claimed as paid by Woolworths and recoverable by the plaintiff on account of income maintenance is $57,135.93. Neither the plaintiff’s claimed amount nor the amount asserted as recoverable by Woolworths conforms to the amount that I have calculated. In the circumstances I do not propose to enter a final judgment in this matter in an amount which includes this figure, as calculated by me, until I have heard further from the parties on this issue.[215]
[215] Any change to this figure will also lead to consequential adjustments to the amounts calculated for past loss of superannuation benefits and interest thereon.
In addition, the plaintiff is entitled to be compensated for the 20% of her wages not paid to her after the first year of weekly payments but, this time, only on a nett, after tax, basis. Twenty per cent of the plaintiff’s gross notional weekly earnings of $578.90 amounts to $115.78. The average tax rate on the plaintiff’s gross average weekly earnings can be taken to be 20%[216] leading to a nett weekly loss of earnings in the amount of $92.62. The 85.14 weeks between the expiration of the first year after the accident and the date of termination of employment therefore give rise to a loss of $7,886.
[216] See exhibit P34.
The plaintiff is also entitled, subject to contingencies, to recover her nett loss of income after tax for the period from the date of redemption and termination of her employment until judgment. As a starting point, the plaintiff’s nett average weekly earnings over this period after allowing for an average taxation rate of 20%[217] would have amounted to $463.12.[218] There have been 362 weeks between the date of resignation and judgment. The starting point for the plaintiff’s nett loss of income for this period of time is therefore $167,649.
[217] Exhibit P34.
[218] 80% of $578.90, see D16.
On this basis, the plaintiff’s total past economic loss before contingencies is $245,068. It has been a long period of time between the date of the accident and final resolution of the plaintiff’s claim, approximately nine years and seven months. The question arises as to the extent to which, if at all, the plaintiff’s past economic loss as calculated to this point ought to be adjusted for contingencies such as intervening illness, lack of continuity of work, non-compensable disabling accidents and the like. I accept that there is to be no presumption in favour of discounting for so called “adverse contingencies of life”.[219] I accept that as at the date of the accident the plaintiff was being paid the wage of a supervisor[220] although she was no longer performing those duties at the Tea Tree Plaza store. In addition, she had fallen out with management and whilst her income was still at the higher level, the nature of and responsibilities associated with her duties had been reduced. Whilst there was always a prospect that the plaintiff may be promoted further within the Woolworths business, that is, to a higher level of supervision on the shop floor, there is also the prospect that she may have been formally demoted to the role of serving staff only with wages and benefits reduced accordingly. There is little reliable evidence relating to either of these possibilities and, in my view, in broad terms as a positive and a negative contingency risk, they can be treated as cancelling each other out. Nevertheless, there are other factors which, on the evidence before the court, in my view, need to be taken into account. I reject the submission of the plaintiff’s counsel that there is no evidence which would support a finding that the disadvantageous contingencies of life outweigh the advantageous. I do not accept that there is an equal prospect that the plaintiff may have done better than the analysis just completed would suggest over the 15 year period between the date of accident and the normal retirement age of 65. On the contrary, the plaintiff had a right knee pathology with ongoing consequential disability and which was degenerative in nature. I accept that to the extent that this was likely over time to be productive of a reduction in the plaintiff’s earning capacity such is likely to be of greater significance for the future and as the plaintiff gets closer to the end of her working life. Nevertheless, the plaintiff was complaining of symptoms and difficulties with her knee as at the time of the accident and as I have said the period between the time of the accident and the date of judgment is a substantial one. I also, in this context, take into account that the plaintiff has demonstrated a lack of robustness, for whatever reason, when endeavouring to cope with the pain and discomfort caused by the left ankle and foot injury. Given that her work history, prior to the date of accident, required her to work for long hours on her feet, the likelihood that over time degeneration to her knee would cause a similar difficulty and response to the difficulty as she has in fact experienced with respect to her ankle and foot injury cannot be ignored. In addition, there is the possibility of another non-compensable disabling accident had she remained fully active over this period and there are the other factors which fed into her decision to resign from Woolworths at the time she did as described in paragraph (xv) under the heading “Findings”, which in any event may have lead to an early retirement or reduction in working hours. Finally, the plaintiff has had a residual working capacity as from the end of 2004 which she has at no time attempted to exercise. However, for reasons previously discussed, she is likely to have had limited opportunities to exercise this residual capacity.
[219] Bresatz v Przibilla (1962) 108 CLR 541 at 543; Campbell v Nangle (1985) 40 SASR 180 at 186, 187 and Fitzgerald v Goonan [2000] SASC 332.
[220] That is, the amount of $578.90 used as the basis for the calculations to this point.
In my view, the negative contingencies do significantly outweigh the only positive contingency identified by the plaintiff, that is, that she might receive further promotion and therefore a higher wage over time. They do so even for the period prior to judgment. In this context, I also take into account, although not raised during submissions, that any nett weekly earnings as at the date of the accident are likely to have been subject to, at least, incremental cost of living increases over time. After taking all these matters into account, as far as past economic loss is concerned, I propose to apply a reduction of 30%. This gives rise to a figure for past economic loss (wages) of $171,548.[221]
Interest on past economic loss (wages)
[221] $245,068 x 70%.
The plaintiff is entitled to an award of interest on the amount of this past economic loss with respect to which she has been out of pocket to the date of judgment. The total amount that the plaintiff has been deprived of is the 20% nett weekly loss of earnings from 26 July 2003 (one year after the accident) until her resignation from Woolworths on 15 March 2005, together with her nett loss of earnings between the date of termination of employment and date of judgment, all adjusted for contingencies. Based on the previous calculations, this amount is $122,875.[222] I accept the plaintiff’s submission that 5% is an appropriate interest rate to apply.[223] This loss has occurred incrementally over a period of 8 years and 7 months. Applying the principles of Grincelis v House[224] I fix an amount on account of interest under this heading of $26,367.
Past loss of superannuation entitlements
[222] $7,886 plus $167,649 less 30%.
[223] Plaintiff’s written closing submissions at page 92.
[224] (2000) 201 CLR 321.
The court would have been assisted in obtaining a more reliable figure for both past and future loss of superannuation benefit by the provision of an actuarial report. Whilst, this has not been made available I accept that the plaintiff will have suffered a loss under both these headings. Accordingly, I must do the best that I can on the evidence that is before me. The plaintiff received no superannuation benefits while on WorkCover but had she remained in full time employment, would have been entitled pursuant to the Superannuation Guarantee (Administration) Act 1992 to an employer contribution on account of superannuation of 9% of gross earnings.
For this purpose, the past economic loss calculation that I have just engaged in needs to be grossed up on the basis that the plaintiff was subject to an average rate of taxation of 20%.[225] The component of $69,533 is already a gross figure and does not need to be adjusted. The component of $7,886 grossed up becomes $9,857 and the figure of $167,649 becomes $209,561. This gives a total grossed up figure of $288,951. To this I need to apply a 30% contingency reduction leading to a figure for the purposes of this calculation of $202,266. On this basis, the plaintiff has been deprived of past superannuation contributions (at the rate of 9%) in the amount of $18,204. Presumably, such contributions would have been invested, incrementally, in a superannuation fund. However, there is no evidence before the court as to whether or not, or the extent to which that amount of $18,204 would have increased or decreased during the period from the date of accident to the date of judgment and I make no adjustment to the figure on this account nor can I allow any interest for the same reason.
Future loss of earning capacity
[225] Exhibit P34.
As at the date of this judgment the plaintiff will be 60 years of age. The appropriate multiplier for a future payment of $1 per week until age 65, using the relevant 3% discount table[226] is 242.5.
[226] Exhibit P51, Todorovich v Waller (1981) 150 CLR 402, Golden Eagle International Trading Pty Ltd v Zhang (2007) 234 ALR 131.
I will adopt, for these purposes, a present average weekly wage payable for the work performed by the plaintiff as at the date of judgment, of $700.[227] Again, the average rate of tax paid by the plaintiff on such gross average weekly earnings can be taken as 20%,[228] giving rise to nett average weekly earnings for present purposes of $560. The starting point for future loss of earning capacity, that is, without any allowance for contingencies, therefore is the amount of $135,800.[229]
[227] See exhibit P50 and in particular the grade 2 allowances at section 3.13 and the cold work allowance at section 3.7.13.3. Contrary to the plaintiff’s written final submissions, I have not allowed anything here for a supervisor allowance (section 3.1.3.1). I take the view that whether or not and the extent to which the plaintiff may have become entitled to a supervisor allowance is a matter to be dealt with by way of the contingencies.
[228] Exhibit P34.
[229] $560 x the multiplier of 242.5.
I have already considered the question of positive and adverse contingencies in the context of past loss of earning capacity.
For the reasons previously given, the adverse contingencies in this case should carry a greater weight during any future period. I propose to reduce the initial calculation by 40% to reflect these considerations, giving rise to an allowance for future loss of earning capacity of $81,480.
Future loss of superannuation
The plaintiff could expect to receive superannuation contributions from Woolworths, or any other employer, whilst she remained in employment into the future in accordance with the requirements of the Superannuation Guarantee (Administration) Act 1992. Currently, an employer is obliged to contribute 9% of gross earnings. In the written submissions presented on behalf of the plaintiff, a claim was made for future loss of superannuation to be calculated on an assumption that there would have been a payment of 11% on gross earnings. No basis is given for that assumption. However, I am aware that there is an expectation that, over time, there will be a government imposed increase to this rate of 9%. However, I have no evidence before me that would enable me to ascertain whether any such increase will, in fact, take place and, if so, the extent of any such increase and the time period over which any such increase or increases might be phased in. In any event, the difference between a calculation based on a 9% contribution rate as compared with an 11% contribution rate, in the circumstances of this case, would only be marginal. I propose to make a calculation of the plaintiff’s loss under this heading based on a 9% contribution rate.
I accept for these purposes, and as already discussed, that the plaintiff could expect to earn, by way of gross weekly wage as at the date of judgment, the sum of $700. In addition, she would be entitled to 9% of $700, that is, $63 as a weekly contribution to superannuation.[230] The present value of a loss of $63 per week to age 65 can again be calculated using the 3% discount table in exhibit P51. Again, the relevant multiplier is 242.5, given that the plaintiff is now 60. This leads to a gross amount of future loss of superannuation contributions of $15,278. I accept that the weekly wage of $700 per week would be likely to increase over the period until the plaintiff will have turned 65 and that this would lead to a slight increase in weekly superannuation contributions. In addition, the present lump sum value of the future superannuation contribution needs to be reduced for future negative contingencies and I adopt the same 40% reduction as previously discussed. Taking all of these matters into account, I fix the sum of $9,500 on account of future loss of superannuation contributions.
Past special damages
[230] Whilst I have referred to this as a weekly contribution or entitlement, I am conscious of the fact that under the legislation an employer is entitled to pay superannuation amounts throughout a tax year at intervals greater than weekly.
I allow the plaintiff’s claim in full in this respect in the amounts of $13,520.41,[231] $232.95[232] and $759.46[233] making a total for past special damages of $14,513.
Future special damages
[231] Woolworths’ recovery notice (exhibit P52) and the schedule at exhibit P41.
[232] In accordance with the Medicare Australia notice of past benefits, exhibit P40.
[233] Exhibit P52 and exhibit P41.
The only claims by the plaintiff here are for paracetamol, which she takes from time to time for the pain and with respect to a possibility that she may need psychiatric or psychological counselling in the future if she suffers a reactive depression. The later possibility borders on speculation but can’t be entirely discounted. The plaintiff has sought no medical treatment of a physical, psychiatric or psychological nature referrable to the accident and its sequelae during the seven years since 2005. Doing the best I can on the limited information available to me, I allow the sum of $1,000 under this heading.
Past gratuitous services
The plaintiff is entitled to recover damages with respect to any domestic or lifestyle needs created by the accident that had been satisfied by gratuitous services provided, in this case by her husband and her foster-daughter. She is entitled to recover damages assessed on the basis of a commercial value of those services so provided.[234] The services are to be valued as at the date of trial.[235]
[234] Van Gervan v Fenton (1992) 175 CLR 327.
[235] Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147.
After the accident, the plaintiff received domestic and home cleaning assistance from Woolworths for approximately 2-3 months and thereafter she persevered as best she could until she married Mr Ferenczfy in February 2004. Both she and her husband gave evidence about how and by whom the household chores were performed by the plaintiff, Mr Ferenczfy and the foster-daughter, Tiffany. I have already summarised this evidence and made some findings in this respect. I accept that there are a number of household tasks that can only be performed by either Mr Ferenczfy or Tiffany or with respect to which the plaintiff requires assistance. These include the house cleaning, the gardening, washing of windows, hanging up the washing and so on. A summary of the plaintiff’s present needs for assistance is provided by the occupational therapist, Helen Vaile, in her report.[236] I accept that Ms Vaile attempted to do her best to assist the court in this respect. Nevertheless, she was, of course, reliant, almost solely, on information provided to her by the plaintiff. In this respect, I am satisfied that the plaintiff has a capacity to perform domestic tasks and her daily lifestyle activities generally greater than she has indicated to the court or to Ms Vaile. Nevertheless, on the information available to Ms Vaile, the weekly costs of the services identified by her, based on the information provided to her by the plaintiff, do not appear to be unreasonable.[237] During final submissions the plaintiff made a claim for $70 per week under this heading and described this as a “conservative figure”. Again, doing the best I can on the limited information available, I am satisfied that this is a fair approximation of the commercial value of those services provided to the plaintiff by her husband and the foster-daughter, being those services which the plaintiff was unable to provide for herself as a result of the accident. Eight years have passed since the plaintiff married Mr Ferenczfy and seven years since Tiffany was fostered. I allow $25,000 under this heading. The only negative contingency I have allowed for is the degenerative right knee condition. Interest is payable on this figure in accordance with the principles set out in Grincelis v House.[238] I accept for the reasons provided in the plaintiff’s final written submissions[239] that an appropriate interest rate for this purpose is 5%. I fix an amount on account of interest of $5,000.
Future paid assistance
[236] Exhibit P9 at pages 36-39.
[237] See exhibit P9 and also the weekly costs extracted from Ms Vaile’s report as set out in the plaintiff’s final written submissions at page 88.
[238] (2000) 201 CLR 321.
[239] At page 92.
The plaintiff is entitled to damages under this heading to take account of the fact that she will need some future domestic and other assistance for the balance of her life expectancy. However, I have found that the plaintiff’s incapacities in this respect, as caused by the accident, are likely to improve with the resolution of this litigation.
When applying a whole of life multiplier to this calculation, allowance also has to be made for the contingency relating to the plaintiff’s right knee which over time may necessitate the plaintiff requiring assistance with services in any event and also the contingency that during the last decade or more of her life, the plaintiff may, simply as a result of the aging process and other possible disabling events in her life, have required assistance with respect to services in any event. For reasons already given I allow a starting point of $70 per week and using the 3% discount table, take as the applicable whole of life multiplier for a woman aged 60, as at the date of judgment, the figure 1003.4.[240] This gives rise to a starting figure of $70,238. I adopt a 55% reduction for contingencies (as just discussed) and I therefore allow $31,607 under this heading.
Future equipment needs
[240] Exhibit P51.
The plaintiff’s counsel, during final submissions, conceded that a motorised scooter (gofer) and an appropriate motor vehicle in which to transport the gofer, were not warranted. The plaintiff’s claim in this respect again relies upon the recommendations and calculations performed by the occupational therapist, Helen Vaile, in her report.[241] I will confine myself to the claims actually pressed by the plaintiff during final submissions.[242] I am not satisfied, after having considered the plaintiff’s evidence on these topics, that the plaintiff’s accident gave rise to a need for a number of the items identified. Either these are items that would have been required by the plaintiff in any event, such as a dishwasher or tumble dryer or were of a type where a simpler and cheaper option would be available. For example, an ordinary lounge chair, presumably already in the plaintiff’s possession, together with a foot stool could do the work of a recliner chair in these respects. In addition, I do not accept that the plaintiff’s post-accident circumstances have generated the need for a clerical chair and a workstation desk over and above that which would have been required in any event. Further, the plaintiff has demonstrated for many years now that she is able to do such ironing as the household requires and she does this standing for short periods of time. I do not accept that an ironing press, to be replaced every 7 and a half years, is a requirement properly caused by the accident. When these items are removed, a proper allowance under this heading, in my view, is an amount of $7,000.
[241] Exhibit P9 particular at pages 40-43.
[242] See the plaintiff’s written final submissions at pages 90-91.
The plaintiff also claims (in lieu of a motorised scooter, scooter ramp and scooter rack) an allowance for the future use of taxis. The claim here, is based on the notion that from time to time the plaintiff will need to travel to such places as the zoo or a cinema or a supermarket and will need to be dropped of at the entrance of such a venue in order to save her from walking a distance from where the car is parked. The plaintiff claims an allowance of $60 per week for taxis and based on the appropriate whole of life multiplier, 1003.4, this would give rise to a figure of $60,204 before contingencies. In my view, this would be an excessive allowance. The plaintiff is capable of driving herself, certainly short distances, and in this city can often, albeit not always, park in close proximity to venues such as the cinema. In addition, on these sorts of outings she is likely to go with her husband or somebody else who would be able to drop her off at the entrance and park the car, something which is routinely done where elderly or otherwise disabled people are concerned. I do not dispute that there will be a need to use a taxi from time to time, only that the plaintiff would, in fact, expend $60 every week. In addition, to the extent that the plaintiff were to use taxis, she would be saved the expense of running her own motor vehicle and, at times, parking fees for those trips. I allow $30 per week under this heading. Using the all of life multiplier of 1003.4 and after allowing 55% for contingencies (for the reasons discussed under the heading “Future Paid Services”) I allow the sum of $13,500 for future taxi needs.
That gives rise to a total of $20,500 for future equipment or costs of taxis in lieu.
Should redemption payments received by the plaintiff be deducted from any award?
Late in the trial the defendant sought and obtained leave to further amend its defence by the addition of paragraphs 10.3 and 10.4 in the following terms.
10.The defendant further says that, in any event, the [plaintiff] failed to mitigate her loss as she:-
10.1 . . .
10.2 . . .
10.3 Was paid $61,455.96 by Woolworths in consideration of her resignation under the pretext of lump sum payments pursuant to sections 42 and 43 of the Workers Rehabilitation & Compensation Act 1986: the plaintiff not being entitled to such purported compensation payments.
10.4 In the premises, the defendant says that from any damages otherwise payable by it to the [plaintiff] which is denied, the payment of $61,455.96 is to be taken into account in reduction thereof.
At the time, I also gave leave to the plaintiff’s former employer, Woolworths, to intervene in order to adduce evidence and make submissions relevant to this topic. The defendant called Ms Allison Morand, a claims manager employed by Woolworths, who gave evidence relevant to this issue and I will come to her evidence shortly.
During final addresses the defendant presented oral and provided written submissions in support of this aspect of its defence, the plaintiff made oral submissions in response and counsel, on behalf of Woolworths, also made oral submissions in response. After I reserved my decision in this matter, the defendant provided, with leave, a lengthy and detailed written reply dealing with, inter alia, this issue.
The sum of $61,455.96 which features in paragraph 10.3 of the pleading relates to the sum of $50,000 paid to the plaintiff on or about 15 March 2005 in purported redemption[243] of any undischarged liability of Woolworths to pay future income maintenance ($49,900) and in purported redemption of any liability to pay compensation for future medical expenses ($100). An additional sum of $11,455.96 was paid to the plaintiff purportedly pursuant to s43 of the Workers Rehabilitation & Compensation Act 1986 (the “WorkCover Act”) with respect to compensation for permanent impairment.[244] The defendant’s argument, as pressed in both its oral and written submissions, focussed only on the $50,000 paid, purportedly, on account of the redemption of future income maintenance and future medical expense liabilities.
[243] Exhibit P10.
[244] Exhibit P53.
The nub of the defendant’s argument is to the effect that Woolworths was not “purchasing” or settling its liability for future weekly payments of income maintenance. Rather, it recognised that it had no real liability in this respect because of conduct by the plaintiff in refusing to abide by the requirements of the legislation with respect to her return to work obligations and the fact that the plaintiff, to Woolworths’ knowledge, had a capacity to return to work which Woolworths would have been able to meet. In these circumstances, Woolworths settled its dispute with the plaintiff for various commercial reasons, as described in the defendant’s written submissions, but not by way of making a bona fide payment of compensation for the plaintiff’s injuries. As a result, submitted the defendant, the payment by Woolworths is not recoverable by Woolworths pursuant to s54(7) of the WorkCover Act.
There is a second limb of the defendant’s argument, and one with which it must succeed, if it is to succeed overall with this aspect of its defence that the redemption payment was not a bona fide payment of compensation. The defendant submits, perhaps inconsistently as counsel for the intervener would have it, that the payment was nevertheless, “so closely aligned with any continuing economic detriment attributable to the injury that it should be brought into account in reduction of any damages otherwise payable if liability is established”.
In setting out what I have understood to be the nub of the defendant’s submission here, I mean no disrespect to counsel in not setting out the extensive and detailed argument put by way of support for its ultimate propositions. I accept the submission put by counsel for the intervener to the effect that the first issue to be decided is whether or not the payment by Woolworths was made bona fide by way of compensation.
In this respect, I have before me the redemption agreement itself[245] which purports on its face, as executed by both Woolworths and the plaintiff, to provide for redemption or settlement of Woolworths undischarged future liabilities. I also have before me evidence of the plaintiff, the various return to work plans[246] and medical certificates[247] and the evidence of Alison Morand.
[245] Exhibit P10.
[246] Exhibit D69.
[247] Exhibit D70.
Ms Morand told the court that she is familiar with the obligations of a self-insurer under the WorkCover Act and also with the Code of Conduct in place for the self-insured employers under the WorkCover scheme. She told the court that Woolworths’ intention or aim was always to return an employee to pre-employment duties and the pre-employment workplace wherever practical. Ms Morand was involved in the redemption of the plaintiff’s claim in 2005. She told the court that with the assistance of legal advice, offers were made to the plaintiff. She could not recall in detail the process or the nature of the offers made but she recalled that a settlement ultimately was reached as a result of the plaintiff resigning from her employment. She accepted that there was evidence before Woolworths, at the time it was considering the redemption of the claim, to the effect that the plaintiff had the physical capacity to return to her previous employment.[248]
[248] Exhibit D72, a report by a Dr Edwards dated 15 October 2003. This opinion of Dr Edwards was not admitted as to the truth of its content or accuracy of opinion expressed (T824), only as evidence that such an opinion, as expressed, was available to Woolworths at the time.
As far as the redemption agreement itself[249] is concerned, Ms Morand told the court that the amount paid related to the feet and ankle burns notwithstanding that there is reference in it to redemption with respect to a number of injuries including the knee injury. “It’s Woolworths policy that when we redeem we note all claims that have been had while the worker was employed with Woolworths, but this redemption agreement was purely in relation to the feet and ankle burns.”
[249] Exhibit P10.
In cross-examination by counsel for Woolworths, Ms Morand told the court that at the time the redemption agreement was negotiated it was her view that Woolworths had done everything they could to achieve a return to work and had obtained legal advice as to its future or possible future liabilities before determining to redeem the liability for $50,000 or so.
I am satisfied on the basis of the plaintiff’s evidence and the available documentary evidence that the situation at the time of the redemption was broadly as counsel for Woolworths described it during submissions.
Woolworths, at the time this agreement was reached, were paying [the plaintiff] compensation I think at the rate of $450 a week. They had made attempts, . . . to provide suitable duties for her. [T]hey came to the conclusion that they were not going to be in a position to do that. Attempts so far had failed. They were in a position where they were paying her $25,000 a year with no end in sight from their point of view. They had been paying her for some time. They had a rehabilitation provider involved. They had done return to work plans and nothing had worked.
In these circumstances, and on the basis of the evidence given by the plaintiff and Ms Morand, I am satisfied that Woolworths, having obtained legal advice, and in paying the plaintiff the equivalent of approximately two years wages, made a bona fide and genuine settlement with the plaintiff in respect of future liabilities. I am also satisfied that the amount should be regarded as compensation to be dealt with in accordance with the provisions of s57(7) of the WorkCover Act, at least, insofar as the defendant’s standing to challenge this issue is concerned. There is no dispute, in this respect, between the plaintiff and Woolworths. The defendant has not pointed to any evidence that would lead me to conclude that Woolworths were not acting bona fide in these respects. In any event, and if I were wrong to this point, for the reasons given by counsel for the intervener during submissions the defendant would also fail with respect to the second limb of its argument essential to this aspect of the defence. The answer to the question in the subheading is “no”.
Summary of damages assessment
Subject to hearing further from counsel on the issue raised in paragraph [269] above, the plaintiff is entitled to an award of damages comprised of the following.
Non-economic loss (past and future)
$ 35,000
Interest on past non-economic loss
$ 2,000
Past economic loss (wages)
$171,548
Interest on past economic loss
$ 26,367
Past loss of superannuation entitlement
$ 18,204
Future loss of earning capacity
$ 81,480
Future loss of superannuation entitlement
$ 9,500
Past special damages
$ 14,513
Future special damages
$ 1,000
Past gratuitous services
$ 25,000
Interest on past gratuitous services
$ 5,000
Future paid assistance
$ 31,607
Future equipment and taxi needs
$ 20,500
TOTAL
$441,719
I will hear the parties on the matter raised in paragraph [269] and on the question of costs before entering final judgment in this matter.
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