Fischer v Rexco P/L & Adelaide Brighton Cement Ltd No. DCCIV-93-1285 Judgment No. D3566

[1997] SADC 3566

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Lee

Hearing

14/02/97, 17/02/97 to 21/02/97, 24/02/97.

Catchwords

TORTS - NEGLIGENCE (NON MOTOR VEHICLE) Plaintiff at premises of second defendant to perform maintenance work - plaintiff claimed he sustained back injury in course of that work whilst lifting heavy plate - held plaintiff failed to prove that his injury occurred in manner alleged - held second defendant not in breach of its duty to plaintiff as lawful entrant to take reasonable steps to protect him from foreseeable risk of injury.

Materials Considered

• Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, referred to.

Representation

Plaintiff MICHAEL JOHN FISCHER:
Counsel: MR F DI FAZIO - Solicitors: ELSTON &; GILCHRIST

Defendant ADELAIDE BRIGHTON CEMENT LIMITED:
Counsel: MR O DOWNS - Solicitors: LAWSON DOWNS

DCCIV-93-1285

Judgment No. D3566

21 March 1997

(Civil)

FISCHER V REXCOPTY LTD & ADELAIDE BRIGHTON CEMENT LIMITED

Civil

Judge Lee

This is a claim for damages for a back injury sustained by the plaintiff in the course of his work on 5 December 1991.The first defendant was the plaintiff's employer at the time, and the second defendant was and is the occupier of the premises where the injury occurred.The first defendant did not participate in the hearing, it being common ground that the proceedings before me should be confined to the claim by the plaintiff against the second defendant.For the purposes of these reasons, I will describe the first defendant as "Rexco" and the second defendant merely as the defendant.

The plaintiff is now 33 years of age.He completed an apprenticeship as a boilermaker in 1984, and worked in that capacity in a variety of jobs until he joined Rexco on about 20 November 1991.Rexco had been contracted by the defendant to perform maintenance work on plant at the defendant's premises at Birkenhead.When the plaintiff and other employees of Rexco arrived at the premises, they were given an induction talk by an employee of the defendant.A number of topics were covered, but the emphasis was on safety.One of the topics was the lifting of heavy weights.The plaintiff's evidence was:-

"It was explained to us the way you lift with your legs, the position to get your body in, not with your back and not to lift anything that you consider is too heavy, to seek assistance when lifting and if assistance isn't suitable, to get a crane or whatever to move things".

.

Riggers were - yes, there was talk about riggers are required when setting up any lifting apparatus, to lift a job, it's not to be done by tradesmen, boilermakers, fitters, etc. it had to be done by riggers, which is a standard thing on jobs anyway.

One of Rexco's foremen - the plaintiff thinks it was Peter Hodgson - then gave the plaintiff repair work to do on doors on trestles in front of a workshop. The plaintiff was engaged on that work for about 10 days, following which Hodgson directed the plaintiff to a mill known as the No.4 raw mill.

The raw mill comprises a vertical tube with a conical top.The tube is about six metres high and three to four metres in diameter.The mill is encircled by a steel mesh platform some two and a half metres from the ground.Rock material is fed into the top of the mill, and rollers on a rotating table inside the mill reduce the size of the rock material as it descends.Each roller is attached to a rocker arm by means of a cylindrical shaft.A rocker arm is situated on the platform at each of four openings into the mill.Each rocker arm is pivoted on a support arm on the platform.The shaft inside the mill is protected by a shroud to which three wear plates are attached.When the mill is shut down for maintenance, the roller is retracted through the opening so that the roller and rocker arm stand vertically on the platform. Scaffold timbers are placed on the platform alongside the support arm to facilitate access to the wear plates.Sometimes wear plates are welded to the shroud at ground level.

The evidence about the nature and purpose of the raw mill and associated equipment was somewhat confused until the witness Lomman drew a sketch (exhibit D7) when he was in the witness box.The sketch shows the equipment in both its working position and its maintenance position.The description which I have attempted in the preceding paragraph is drawn mainly from Lomman's evidence.

All this brings me to the circumstances of the subject injury.I will deal first with the version of the plaintiff.

At the time that the plaintiff arrived at the mill, it was shut down and equipment was being pulled apart for repair.Hodgson pointed out two other Rexco boilermakers who introduced themselves as Craig and Garry.Hodgson said that these boilermakers knew what was going on, and the plaintiff should work with them.

The plaintiff described his first job as hard faced welding of wear plates inside the mill for about a day and a half.Then he was directed by Hodgson to pad weld the bearing surfaces which supported the rocker arms.He did that work continuously for 19 hours.After minor cleaning and patching work, his next job was to nip or tighten bolts which had been placed through the side of the mill.To do that he worked from a scaffold on the platform.At the time, a new piece of duct work was being held above him by an overhead crane. Various fitters and riggers were bolting the duct work into position.He noticed that odd washers and nuts and bolts were bouncing off his scaffold and he opted to move out of the way.He descended the scaffold to the platform, went to the other side of the mill, had a cigarette, and then asked Craig whether he needed a hand.At this point of his evidence, the plaintiff identified Craig as Craig Lomman.Lomman explained that he had to fit new wear plates to the head of a rocker arm and that it was a two-person job.The wear plates were in a wooden pallet on the ground.The plaintiff and Lomman walked down steps between the platform and the ground.Lomman chose a wear plate from the pallet and each grabbed an end and carried it up the steps to the platform and rested it against the handrail.The plate was wedge shaped, being about a metre in length, about 800 millimetres at one end and about 300 millimetres at the other.The plaintiff and Lomman discussed different ways in which the plate could be fitted.The overhead crane was mentioned but that was already in use.The plaintiff suggested that they make an A-frame and connect a block and tackle to a lifting lug to be welded to the plate.The plaintiff's evidence then was:"I was reminded that most of the riggers have been laid off and the riggers that remained on the plant were all busy".The plaintiff was unsure whether that was said by Lomman or Gary.At this point of his evidence, the plaintiff identified Gary as Gary Mooney.Somebody talked about a mobile crane, but other structures would have made it difficult to get the jib of the crane over the right spot.

Eventually, Lomman said that they would manually hold the wear plate against the rocker arm and that Mooney would put a G clamp on it.The plaintiff and Lomman both knelt down and the plaintiff grabbed the larger end of the plate and Lomman the smaller end.They got the plate into position after jiggling it around.The plaintiff said: "I was in a very outstretched position because we had to reach over everything".He said he was standing outside a kickboard, Lomman was to his right inside the kickboard near the side of the mill, and Mooney was standing to his left with the clamp.The position of the kickboard is marked on a sketch prepared by the plaintiff (exhibit P3).The plaintiff said: "I was kneeling in the stretched position, holding this wear plate, while my co-worker jiggled his end around until he got it roughly right".The plate became unbearably heavy and he felt a lot of pressure building up in the bottom of his spine.He turned and said to Mooney "What are you doing with that bloody clamp, get the thing on there".He could quite clearly see that the clamp was open about 130 millimetres when all that was required was a 40 millimetre gap.Mooney stood there gradually winding the clamp in.The plaintiff observed that people were working below the platform, and he was concerned for their safety in the event that he let go of the plate.He was obliged to hold the plate for about two minutes whilst Mooney was closing the gap of the G clamp.At this point I quote again from the plaintiff's evidence:-

"The G clamp was tightened on my end of the plate, so I let go - let go of the wear plate that is.I couldn't move, I had a lot of pain in my lower back and I just - it was locked so that I couldn't move, and I don't recall exactly what I said, if you may pardon my language, I swore and carried on about 'my f - ing back' and I couldn't move and eventually I managed to get my left hand onto the handrail which is just out of view in the picture of exhibit P4, number one, to the left of that picture, it is just out of view, the handrail, and held onto that and moved myself over to the handrail and I was quite shocked, spun out, that this was happening to me and I was complaining about it to Mr Mooney and Mr Lomman and they told me to get down and report my injury to the first aid room".

After straightening up, the plaintiff felt pain from his left buttock to his left thigh and knee as well as pain in the centre of his low back.He climbed down the steps and walked to the first aid room.From there he took a taxi to the rooms of a Dr Asinari at Port Adelaide.

So much for the plaintiff's version.I turn now to the versions of Mooney and Lomman.Both were called by the defendant.Both were employed by Rexco as boilermakers at the relevant time.

Mooney said that he was approached by the plaintiff, and that he helped the plaintiff to carry a wear plate up the steps to the platform.He had already observed that a pallet of wear plates had been left on the ground by a forklift without the driver staying to lift the pallet to the level of the platform so that the plates could be unloaded.Sometime later, the plaintiff said: "Gary, can you give me a tack weld so it can hold it in position?".The plaintiff and another person held the plate in position, and Mooney "zapped it anywhere from five seconds to fifteen, no longer".He thinks he put two tack welds on the plate.He cannot remember who the other person was.The plate was attached to a shroud like the shroud shown in a photograph (exhibit D5).A G clamp was definitely not applied.You cannot use a G clamp because there is nowhere on the shroud to fix it.The plaintiff did not say anything about his back to Mooney until sometime after the lunch break.Mooney was walking across the yard when the plaintiff approached and said: "Gary, I think I did my back in". Mooney told him to go to the first aid person.While he was tack welding the plate, he did not see the plaintiff grimace or give any indication that he was in pain.From about four up to a dozen fitters, boilermakers and riggers were up and down the platform all day.There was no urgency about getting the job done.

Lomman said that he did not assist the plaintiff to carry the wear plate to the platform, and he did not assist the plaintiff to fix the plate to the rocker arm.He had no discussion with the plaintiff about wear plates and was not aware that anyone had been injured whilst working on wear plates.Eight to ten contractors were working on the mill at the time.They were fitters, riggers, trades assistants and boilermakers.If he needed lifting equipment, he would ask a rigger.There was no urgency to finish the work.Indeed, at the induction conducted by the defendant, Rexco employees were told to take as long as was necessary.Lomman said his preferred method of doing the job would be to have a rigger put the plate in position for welding.This could be done either with the overhead crane if it was available or with a chain block attached to lifting lugs.The usual practice, however, was for two men to hold the wear plate in position whilst it was being tack welded.If he could put a G clamp on it he would.But a clamp could only be fitted at the bottom corner of the plate nearest the mill, and it would not take the whole of the weight. The plate could be supported in position in a U-shape dog welded to the bottom of the shroud.A wedge between the dog and the bottom edge of the wear plate could be used to adjust the height of the plate.

Important conflicts between the plaintiff on one side and Mooney and Lomman on the other are readily apparent, so I need to say something about the credibility and reliability of the witnesses.

Mooney and Lomman presented as genuine and truthful witnesses.Neither seemed to have any axe to grind.The passage of time since relevant events is noted, but both gave previous statements to representatives of the parties.If the essential features of the plaintiff's account are true, I expectthat Mooney and Lomman would have remembered them.I refer to the discussion about mechanical aids, the kneeling in a stretched position to hold the plate, words and actions indicative of intense pain, and the advice given on the platform that the plaintiff should report to the first aid room.

I do not look upon the plaintiff's presentation, on the other hand, with anything like the same degree of confidence.Some at least of his evidence smacked of reconstruction or embellishment.I refer to his evidence that no rigger was available to assist and that there was a risk of injury to persons below the platform.

Counsel for the plaintiff argued that Mooney and Lomman are themselves in conflict on the practicality of using a clamp to hold the plate in position whilst it is being welded to the shroud.Counsel said that Lomman's evidence on the point should be preferred because it is supported by engineering drawings provided by the defendant.I go back to the evidence of Mooney and Lomman.Mooney said there is one spot only where a small G clamp could be fitted, but it would not hold the weight of a plate.Lomman said that he would use a G clamp if he could, but he went on to say that a clamp could only be fitted at the bottom corner of the plate nearest the mill and it would not take the whole weight.So it seems to me that, if there is a conflict, it really boils down to the personal preference of one boilermaker against another.In the end, I am still left with the clear rebuttal by Mooney and Lomman of the essential features of the plaintiff's account.

On a weighing of the competing versions and the evidence as a whole, I am not prepared to find that the plaintiff's injury was sustained in the manner that he alleges.

I should refer at this point to the evidence of Christopher Hall, a consulting engineer called by the plaintiff.

It is an agreed fact that the wear plate in question weighed 63.5 kilograms. Hall said there was nothing intrinsically unsafe about two men manually lifting a plate of that weight.So he offered no criticism of the way in which the plate was transported from the ground to the platform.He said that the problem always arises when any weight has to be extended out from the body.He gave the illustration of a jug of water extended to full arms length with the additional strain which would be imposed on the spine.He said that the task of placing the wear plate on the rocker arm would have involved some reaching out and extending away from the centre line of the body.He said the further you have to extend the weight away from the body the greater the strain on the back, and the longer you have to hold it in that position the greater the risk of injury.

Hall's views are diminished in value by lack of relevance to proven circumstances.I do not accept the plaintiff's evidence that he was holding the plate in a stretched position.There is no credible evidence that the shroud could only be reached by extending the arms.Indeed, Lomman's sketch (exhibit D7) would suggest otherwise.The plaintiff's sketch (exhibit P3), or at least the side elevation on that sketch, according to Lomman, shows the rocker arm in its working position.The plaintiff said, wrongly as I find, that the rocker arm in his sketch is in its maintenance position.Although the wear plate would be inside the mill when the rocker arm is operating, the plaintiff's sketch is also in error in showing the wear plate attached to angle iron rather than a shroud.It is true that Mooney said that the plaintiff was standing with a slight bend in his back and that the angle was about 30 degrees, but that is not the posture which the plaintiff described and which Hall assumed for the purposes of his evidence.

Since, however, I do accept that the plaintiff assisted another Rexco employee to fix a plate to a shroud without any mechanical aid, I should deal with the plaintiff's assertion that the defendant was in breach of its common law duty of care to the plaintiff.

There can be no doubt that the defendant as the occupier of the premises owed a duty to the plaintiff as a lawful entrant to take all reasonable steps to protect him from foreseeable risk of injury according to the ordinary principles of negligence:Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.Nevertheless, the plaintiff was an experienced tradesman. He was working with other experienced tradesmen.He and his fellow employees received, before they went to the mill, clear and appropriate instructions from the defendant regarding safety and lifting procedures.The person from whom they received directions at the mill was a Rexco foreman.The various tasks to be performed were in the nature of maintenance, and a degree of discretion was called for in the choice of methodology.In the event that mechanical aids were required, riggers were available to provide them.

Although none of these considerations absolves the defendant from its duty of care, I do not consider that it was encumbent upon the defendant to direct that mechanical aids should be used in the fitting of wear plates. Nor do I consider that the defendant was otherwise in breach.

In the result, the plaintiff's claim fails in fundamental respects.He has failed to prove that his injury occurred in the manner alleged.Further, he has failed to establish that the cause of his injury was a breach of duty on the part of the defendant.

There will be an order accordingly that the plaintiff's claim against the second defendant be dismissed.