Fitzpatrick v Robert Norman Job and Wendy Barbara Job T/As 'Jobs Engineering'
[2005] WADC 89
•12 MAY 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FITZPATRICK -v- ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS 'JOBS ENGINEERING' & ANOR [2005] WADC 89
CORAM: FRENCH DCJ
HEARD: 21-25 & 28-31 MARCH 2005
DELIVERED : 12 MAY 2005
FILE NO/S: CIV 2098 of 2000
BETWEEN: PAUL ANDREW FITZPATRICK
Plaintiff
AND
ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS 'JOBS ENGINEERING'
First DefendantsV & D RIDOLFO PTY LTD (ACN 008 704 461)
Second DefendantGIO GENERAL LTD
Third Party
Catchwords:
Negligence - Duty of manufacturer and supplier of machinery - Duty to provide safety barrier - Duty to provide operating instructions and written warnings - Causation - Manufacturer's liability under Trade Practices Act - Third party proceedings - Construction of insurance contract
Legislation:
Insurance Contracts Act 1984
Trade Practices Act (1974) (C'th)
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr T Lampropoulos
First Defendants : Ms F C E David
Second Defendant : Mr I R Freeman
Third Party : Ms A M I Schoombee
Solicitors:
Plaintiff: Tydde & Co
First Defendants : D G Price & Co
Second Defendant : Phillips Fox
Third Party : Minter Ellison
Case(s) referred to in judgment(s):
Allianz Australia Insurance Ltd National Jet Systems Pty Ltd [2004] SASC 438
Bethune v Qconn Pty Ltd [2002] FCA 1485
Chalmers Leask Underwriting Agencies v Mayne Nickless Limited (1982) 2 ANZ Ins Cas 60‑463
Karenlee Nominees Pty Ltd v ACN 004312234 Ltd (1994) 8 ANZ Ins Cas 61‑236
Legal & General Assurance Society Ltd v Commonwealth of Australia & Precision Cranes & Hoists Pty Ltd (1985) 3 ANZ Ins Cas 60‑621
Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711
Uzabeaga v Town of Cottesloe [2004] WASCA 57
Vosten v Commonwealth [1989] 1 Qd R 693
Case(s) also cited:
Agriculture Poultry Producers Association [1969] 2 AC 31
Albion Insurance Co Ltd v Body Corporate Strata Plan No 4303 [1983] 2 VR 339
Atkinson v Hastings Deering (Qld) Pty Ltd (1985) 8 FCR 481
Bartlett v Sidney Marcus Ltd [1965] 2 All ER 753
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Commercial Union Assurance Co of Australia Ltd v Janke (1993) 7 ANZ Ins Cas 61-179
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Florida Hotels v Mayo (1965) 113 CLR 588
Franna Cranes Pty Ltd v Turkington [2004] WASCA 187
Fraser v B N Furman (Productions) Ltd [1967] 3 All ER 57
Gold Coast Bakeries (Qld) Pty Ltd v Heat & Control Pty Ltd [1992] 1 Qd R 162
Henry Kendall & Sons v William Lillico & sons Ltd; Hardwick Game Farm v Suffolk Agriculture Poultry Producers Association [1969] 2 AC 31
Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, [2003] HCA 61
Lanza v Codemo [2001] NSWSC 72
Laundess v Laundess (1994) Aust Torts Reports 81-316
Lexmeade (Basingstoke) Ltd v Lewis [1982] AC 225
McPherson v Whitfield [1996] 1 Qd R 474
Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580
Mutual Acceptance (Insurance) Ltd v Nicol (1987) 4 ANZ Ins Cas 60-821
Pennington v Norris (1956) 96 CLR 10
Pivovaroff v Chemabaeff (1978) 21 SASR 1
Plasteel Windows Australia Pty Ltd v Sun Alliance Insurance Ltd & Ors (1989) 5 ANZ Ins Cas 60-918
Pledge v Roads & Traffic Authority; Ryan v Pledge (2004) 205 ALR 56
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Richard v Gendore Enterprises Pty Ltd [2004] NSWCA 116
Rogers v Whitaker (1992) 175 CLR 479
Sun Alliance & London Insurance Group v North West Iron Co Ltd [1974] 2 NSWLR 625
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272
Williams v Commissioner for Road Transport and Tramways (NSW) (1935) 50 CLR 258
Woolfall & Rimmer Ltd v Moyle [1942] 1 KB 66
FRENCH DCJ:
Introduction
On 5 January 1999 the plaintiff, Paul Andrew Fitzpatrick, suffered a severe injury resulting in a below knee amputation of his left leg. His left foot was trapped inside the splitter box of a wood processing machine operated by him at his woodyard in Beechboro. At the time of the accident the plaintiff was aged 34 and had been the manager and operator of "Kelly's Woodyard" for approximately four years. The business was operated in the name of the Fitzgerald Family Trust. In August 1998 the plaintiff as trustee of that trust purchased the wood processing machine ("the machine") from the second defendant for the sum of $55,000. The second defendant is a corporation and carried on the business of processing and selling firewood in the retail market. The second defendant had purchased the machine from the first defendants in September 1996.
Robert Job of the first defendants carried on the business of engineering and welding and steel fabrication in partnership with his wife trading as Job's Engineering in the State of Tasmania. In the course of this business the first defendants designed and manufactured wood processing machines to mechanically saw wooden logs and chop them into firewood pieces.
The plaintiff claims that his accident was caused by defects in the machine and that both the defendants are liable for damages he suffered in negligence and in relation to the first defendants pursuant to the provisions of the Trade Practices Act ("the TPA"). Both defendants have denied liability. The following specific defects are particularised in the statement of claim:-
·That the machine did not have an adequate guard or safety barrier around the splitter box on the machine.
·There was no "deadman switch" or safety device to stop the machine in case of emergency.
·There were no written or sufficient instructions for the safe operation of the machine.
·The operating lever of the splitter box mechanism was defective.
·There was no sign warning of the danger of placing any part of the body in the splitter box.
·The machine did not comply with Australian safety standards.
Both defendants have denied negligence. They claim that the accident was caused by the plaintiff's own negligence in operating the machine when the splitter box lever was broken and by attempting to move a piece of wood in the splitter box with his foot.
Both defendants commenced contribution proceedings against each other; the second defendant relies on the express and implied terms of the contract for the manufacture and supply of the machine and representations made by the first defendants and the first defendants rely on a claim of negligence against the second defendant and a claim under the TPA.
The third party is the first defendants' public liability insurer. The first defendants made a claim against the third party in relation to the plaintiff's action. However, liability has been denied and the third party relies on provisions of the insurance policy that it claims exclude the indemnity cover sought by the first defendants. The first defendants' action against the third party is not only dependent on the outcome of the main action as the first defendants are seeking costs as well as indemnification of any claim by the plaintiff if the plaintiff should be successful in the main action.
The issues
The issues of fact which focussed heavily on the operation of the machine were explored in some detail in the trial. However, many of the matters canvassed were either ultimately not at issue as between the parties or did not significantly impact on the issues that are required to be determined.
I do not consider it necessary to refer to the particular matters raised in the pleadings. The issues for determination are straightforward. The plaintiff claims that both defendants owe him a duty of care and that the breach of that duty caused his accident and his injuries. That is denied by both defendants. The plaintiff claims that the machine designed by the first defendants and supplied to him by the second defendant was defective and the particulars are referred to above. Both defendants deny that the machine as supplied by either of them was defective and also rely on the role played by the other defendant in relation to the manufacture of the machine. The machine as supplied by the first defendants in September 1996 was incomplete in that it was not built with a operator's cabin as was the first defendants' usual practice. Because of difficulties in freighting the machine to Western Australia the second defendant purchased the machine from the first defendants with no operator's cabin and arranged for that to be designed and constructed in Western Australia once it had taken delivery of the machine. Therefore, the first defendants claim that they are only responsible as a manufacturer of a machine without a cabin and that the second defendant is responsible for any defects in the construction of the cabin including the failure to provide safety measures and devices. The second defendant claims that it copied the first defendants' general design for the construction of the operator's cabin and that the first defendants did not provide advice as to safety aspects that should be incorporated into the construction of the cabin. The issues for determination are as follows:-
1.The construction of the machine and sale to the second defendant.
2.The operation of machine by second defendant and sale to plaintiff.
3.The circumstances of the accident.
4.The plaintiff's claim in negligence against first defendants.
5.The plaintiff's claim in negligence against second defendant.
6.The plaintiff's claim under the TPA.
7.The third party's liability to indemnify the first defendants.
Construction of the machine and sale to the second defendant
The first defendant, Robert Job was born was born in 1948 and at all relevant times together with his wife operated a business under the name of 'Jobs Engineering' in the town of Rokeby, Tasmania. He completed an apprenticeship as a boilermaker/welder and then commenced working for himself as a steel fabricator. The business initially manufactured oil tanks for domestic use and then manufactured earthmoving equipment for front end loaders, bulldozers and excavators. It also manufactured aluminium boats. In approximately 1986 the first defendants worked for a short time operating a woodyard. In the course of that business he became familiar with a wood splitting machine. As a result of that experience he started manufacturing wood processing machines. These machines included a wood splitting mechanism but also had components that cut wooden logs into rings, loaded them into a wood splitting machine and then provided a conveyor mechanism to carry the then fireplace sized pieces of wood to a truck or container. A video was shown to the Court of the operation of the machine at an agricultural show in Tasmania in 1998. The first defendants received an award at that show for the best agricultural machine. The machines were manufactured personally by Mr Job and under his supervision using sub‑contract labour when necessary. Over the years Mr Job refined the wood processing machine. The machines were sold by order and modifications to individual machines were made to accommodate the client's requirements. For example, wheels would be added if the machines were to be used in a bush setting and needed to be mobile and the machines could be configured to accommodate particular sites. However, after the first few machines were manufactured a set design for the wood splitting mechanism was established and never varied. The original wood splitting machines did not have a cabin because the operator was always outside on the ground and rolled a cut block up to the loading chute of the wood splitting machine. However, once the wood splitting machine was incorporated into a machine that included other components to process wooden logs a cabin was added. Mr Job advised that this was initially to keep the operator out of the weather and it also added a safety aspect. There are numerous photographs of different models of wood processing machines that demonstrate the structure and design of the machines.
The operator was protected from the risk of wood chips and dust from the operation of the chain saw by the enclosure design of the cabin. There was however no barrier constructed between the operator and the splitter box mechanism and that side of the cabin was not fully enclosed. The first defendants stated that on the earlier models there were chain barriers across the opening near the splitter box and there were small ledges built up from the floor of the cabin. Subsequent to the purchase of the machine by the second defendant the cabins that were manufactured were fully enclosed so that the operators were protected from the weather. There were no standardised templates or specifications for construction of the cabins as there were different requirements for each client.
The first defendants did not apply for a patent for the machine as that had never occurred to Mr Job, nor was he aware that there were Australian Standards published in July 1996 concerning the manufacture of machines. However, instructions were given to purchasers as to the correct operation of the machine and he always gave hands on personal demonstrations to every customer. He would describe the operational and maintenance procedures and the daily routine of greasing and oiling the slides in the splitter box. He said that it was always strictly impressed on every customer that no‑one was to go inside the splitter box when the machine was turned on or was operating. By reference to exhibit 5 Mr Job explained that before the machine is operated the operator is instructed to check the oil and water in the diesel engine and grease the slides in the splitter box. A log is then placed onto the machine by means of a forklift or front end loader and the machine is then turned on. The log is then lifted up and then secured by a clamp. After the log is secured the chain saw is then lowered down onto the log and proceeds to cut the log into rings. Once the cut is completed the chain saw drops below the loading chute and the log ring is then tipped up by means of a chute into the splitter box. The length of the pieces of wood to be cut in the splitter box can be pre‑determined by setting the chain saw to cut log rings of a certain length. Once the log ring is in the splitter box the safety lock is pulled out and the splitter box mechanism is engaged. The splitter box operates by means of two rams that clamp the log ring and then push it through the knives in the splitter box. The ram then retracts and the section of the log ring that has not been cut drops down and the splitter box then goes through the same process so that all sections of the log ring are then pushed through the knives and cut into the required size. While this is happening the operator operates the chain saw part of the machine and then slices off another log ring so that it can be picked up by the chute and placed into the splitter box for cutting. Although the splitter box can be left in automatic mode Mr Job suggested that the correct method of operation was to place the splitter box mechanism into neutral while a further log ring is loaded in. It is only when the log ring is actually in the splitter box that it would then be placed back into the automatic mode. This appears to be contrary to the method adopted by the operators employed by the second defendant and is not the method that was employed by the plaintiff. The metal plates in the splitter box that clamp the log rings and push them through the knives are powered by three hydraulic rams that are situated under the floor of the cabin. They can be adjusted from between a 24 inch or down to a 10 inch stroke. The hydraulic pumps are driven by the diesel motor. Once the splitter box mechanism lever is placed in neutral a spring centre valve ensures that the mechanism does not become operational unless it is returned into the forward position. However, once it is placed into the forward position it operates in an automatic way going forward and backward to ensure that the splitter box rams operate automatically opening and closing and pushing the log rings into the splitter box knives. The mechanism operates automatically by means of a very simple mechanical action that is powered by a six inch rubber sewerage ring rather like a large elastic band. When the lever is placed in the forward position the rod travels to a certain point then when it reaches a pivot point the rubber band then flips the lever into reverse so that the hydraulic valve operates in a reverse position. Mr Job was showed a picture of the sewerage pipe rubber ring (exhibit 4) which had been twisted a number of times as if it had been wound up. He had never seen the rubber band in that configuration and stated that in his opinion it indicated that someone had deliberately wound the rubber band up. He was of the opinion that that would increase the pressure on the trigger mechanism and may cause stress on the splitter box mechanism lever. He stated that apart from the machine sold to the second defendant he had never received any complaints or advice in relation to broken levers on the splitting box mechanism. The same mechanism is employed in all the splitter box components of the machines manufactured by him.
Mr Job described the operation of the wood splitting box and the safety mechanisms incorporated in the design in the following terms and by reference to the photographs in exhibit 5. He explained that once the diesel engine of the machine was switched on the splitter box was operated by lifting the control knob up and pushing the lever to the left in the forward motion. When that reached the end of the stroke the lever would click back to the reverse cycle and this would hit a trip mechanism that allowed the lever to go backwards and forwards continuously in an automatic operation. This continuous backwards and forwards motion could be stopped by placing the lever back into the neutral position. It could be locked in this position by engaging the locking mechanism immediately underneath the control lever. The locking mechanism was a simple mechanical device which consisted of a yoke which could be pushed around the control lever and engaged into position by pushing it into a hole in the control panel. The wood splitting mechanism could therefore be placed into a stop position and it could then be locked into that stop position by means of operating the controls. As the design for the splitting box mechanism did not vary there was standard steel templates for the splitting machines that were used in the manufacture.
In 1996 Mr Job was contacted by Mr Anthony Ridolfo on behalf of the second defendant. He was making enquiries in relation to the nature of the wood processing machines and what kind of tonnage could be expected from the operation of the machine. The first defendants sent a video tape of the operation of the machine to Mr Ridolfo. Subsequently, Mr Ridolfo contacted the first defendants and arranged to travel to Tasmania to inspect the operation of one of the machines. Mr Ridolfo and other representatives from the second defendant travelled to Tasmania in July 1996, met Mr Job and subsequently inspected two wood processing machines that were in operation in different sites in Tasmania. During the course of the inspections photographs and videos of the operation of the machine were taken. There were discussions between Mr Anthony Ridolfo and Mr Job in relation to the price and the time it would take to manufacture a machine. Mr Ridolfo also enquired as to whether it was possible to manufacture a machine without a cabin to make it easier for the machine to be freighted across to Western Australia. After the return to Western Australia an order for the manufacture and supply of the machine was sent to the first defendants by means of a facsimile transmission on 28 July 996 (exhibit 14). There was no discussion about any details or dimensions of the cabin that would be required to be built onto the machine supplied by the first defendants.
The machine was completed in September 1996 and Mr Ridolfo together with other representatives from the second defendant went to Tasmania to take delivery of the machine and arrange for its transport to Western Australia. There is a video that shows the machine being removed from the first defendants' premises and a demonstration of the operation of the machine carried out. There were some minor matters that need to be altered such as an alteration to the oil flow on the conveyor. Mr Job estimated that the full demonstration lasted for approximately two to three hours and involved demonstrating the machine cutting the logs into rings and then loading them into the splitter box and that mechanism operating to split the logs into small pieces of wood. Mr Job stated that he made it clear to the representatives from the second defendant that if anything has to be done inside the splitter box for maintenance the mechanism should be locked off and the machine engine switched off. He explained that if a log had to moved inside the splitter box the mechanism could be locked off by means of engaging the locking mechanism on the control panel.
Mr Job stated that he always advised his customers and advised the second defendant that if any wood needed to be adjusted inside the splitter box the splitter box mechanism should be locked off and the wood adjusted manually. It is not quite clear from Mr Job's evidence that he stated that he also suggested the machine be switched off. However, after reviewing all of his responses in examination‑in‑chief and cross‑examination I consider that the correct conclusion is that his suggested method and the method he advised his customers was that it was sufficient to turn off and lock off the splitter box mechanism before adjusting any log rings that had become misaligned when they were placed inside the splitter box. If an operator did need to get right inside the splitter box to release logs jammed in the splitter knives or to grease or oil the splitter knives then the whole machine should be turned off as an additional safety precaution. Mr Job stated that he did not supply a crow bar or metal rod with a hook on the end when the machine was sold to the second defendant. He also stated that it was not his practice to supply such an implement with the sale of the machines.
Operation of the machine by the second defendant and sale to the plaintiff
When the machine arrived in Perth the second defendant arranged for a cabin to be constructed. Mr Job said that there had been no discussion at the time of the purchase of the machine as to how the cabin should be fabricated. He did not think there would be any difficulties as the structure is a simple one made from sheet metal and angle iron. He does recall that he overheard representatives of the second defendant talking about using perspex rather than glass in the windows. He advised that they didn't think that perspex was appropriate as it would get very dirty in the environment and is hard to keep clean. Mr Ridolfo did not recall that Mr Job recommended safety glass rather than perspex. However, he said that Mr Job had made it clear that the operator needed uninterrupted access to the splitter box to be able to adjust pieces of wood if necessary.
The second defendant instructed a firm of metal fabricators G & G Welding to design and construct an operator's cabin on the machine. That firm had done work for the second defendant before and had constructed similar cabins on earthmoving and other industrial equipment. Mr Ridolfo showed Mr Giancola from G & G Welding the photographs of the machines and of the cabin and advised that they required a cabin to protect the operator from the chain saw. As a result steel mesh was added to the construction of the cabin and placed around the windows. As a result of discussions between Mr Ridolfo and Mr Gianola a bar was placed across the opening of the cabin adjacent to the splitter box. Mr Ridolfo said that he considered that any kind of bulky door would be impractical as the operator needed access to the splitter box. The metal bar was placed across the opening and consisted of a simple bar slotted in to two brackets in case an operator slipped rather than to prevent access to the splitter box. Further windows and blinds on three sides of the cabin were added to improve ventilation. The roof of the cabin is more angled than the square shapes of the cabins in the photographs from the machines in Tasmania. In addition, a flat plate 200 millimetres high was placed on the floor of the cabin across the opening to the splitter box. This was done in consultation between Mr Giancola and Mr Ridolfo and was also a safety device to prevent an operator slipping off from the floor of the cabin. There were other alterations made to the machine at this time that are not connected to the operation of the splitter box and are not relevant to the issues in this trial. Once the cabin had been completed and the machine was in operation at the second defendant's premises photographs were taken and were sent to the first defendants. Mr Ridolfo did make inquiries with the Department of Transport and DOSHWA as to licensing requirements and whether a "roll over" protection was required. This was not relevant to the circumstances of the accident.
Mario Giancola is a director of G & G Welding Pty Ltd and he supervised the design and construction of the cabin. In doing so he had the benefit of the photographs of the wood processing machines and said he was instructed by Mr Ridolfo to construct a similar cabin. Mr Giancola had not built a cabin for a wood processing machine before but had built similar cabins for other industrial machines. He stated that he was not told to build the cabin to any specifications nor was he told of any regulations of standards that would have to be complied with in its construction.
After construction of the cabin the machine was operated in the second defendant's woodyard until the sale to the plaintiff in August 1998. The machine was operated by an employee of the second defendant, a Michael Harvey. On weekends when he was delivering firewood the machine was operated by Mr Tony Ridolfo and Nicolo Mr Ridolfo.
Mr Harvey stated that he did not receive instructions in relation to the operation of the machine and said that "basically me and Tony Ridolfo just taught ourselves". Harvey explained how he operated the machine which was generally in the same way as explained by Mr Job. However, unlike Mr Job he said that once the first log ring was loaded into the splitter box he would activate the splitter box mechanism and that would continue to operate automatically. At one stage during cross‑examination (T495‑496) it seemed that Mr Harvey was saying that he put the mechanism into neutral before he loaded a new log ring into the splitter box. However, it appeared that there was some confusion in his answers there as subsequently he confirmed that the only time that he switched the splitter box mechanism off was when a log had become twisted and needed to be adjusted. Otherwise, the splitter box mechanism simply ran in automatic going backwards and forwards and he would time the operation of the chute so that when a new log ring had been cut it was placed into the splitter box when the opening was in the widest position. He stated that there was a safety catch to lock the mechanism into the neutral position. Once this safety catch was put on then the log ring could be adjusted by means of the metal hook. He identified the metal hook in figure 13 in exhibit 9 as the hook that he used for that purpose. He stated that when the log ring had been adjusted and was in the correct position then the splitter box mechanism could be switched back on. Although Mr Harvey said that when the log rings were placed into the splitter box they would sometimes need adjusting he did not recall any instances where a section of the wooden ring would "flick up" after it had passed through an initial cut in the splitter box in the way described by the plaintiff. Mr Harvey stated that there were no warning signs in the cabin when he operated the machine, nor was there any operator's manual supplied to describe the correct method to operate the machine.
Mr Harvey stated that the lever used to operate the splitter box mechanism would break on some occasions. He estimated that this would occur once every three to four weeks. However, he conceded that in an earlier statement his assessment was once every two or three weeks. He said that the lever "snapped" just underneath the control panel and when this occurred he shut the machine down until it was repaired by the mechanic employed by the second defendant. He said that it took approximately 20‑30 minutes to be repaired. He never operated the machine while the lever was broken.
Mr Harvey said that the horizontal bar constructed to slide into the brackets on either side of the opening in the cabin was in position when he operated the machine. In cross‑examination as to why the bar did not appear in a photograph in exhibit 6 he said that that may have been because the machine was not actually being operated at the time the photograph was taken. Mr Harvey also stated that the bar was in place at the time that the machine was sold to the plaintiff. However, Mr Ridolfo stated that he did not recall seeing the bar on the machine all the time and in fact did not use the bar when he was operating the machine. He could not recall whether it went with the machine when it was sold to the plaintiff. Mr Harvey said that in his opinion it was not possible for an operator seated in the cabin and operating the controls to place his foot right down into the splitter box. He said this could only occur if the person was standing up or was half into the splitter box.
On instructions from the second defendant Mr Harvey went to the plaintiff's premises after he brought the machine to demonstrate its operation. He thought that he was there for approximately four to five days. He said that he demonstrated the use of the machine and showed the plaintiff how to adjust logs that were out of alignment in the splitter box by means of the hook. He said that he was sure that during the course of his demonstration that some logs would have needed adjusting and that he showed the plaintiff how to do that by means of the metal hook. He was sure of this because he stated that logs often twisted when they were dropped into the splitter box and required adjustment. He stated that he definitely told the plaintiff to use the hook to do this and to turn off the splitter box mechanism before doing so.
Mr Ridolfo had operated the machine on many occasions, he estimated between 40 and 50, in the two years that the second defendant had possession of the machine. He stated that when the plaintiff was making enquiries about purchasing the machine he explained to him its operation. He told him that from time to time wood blocks would fall out of alignment so that the splitter box had to be stopped and locked and the metal hook then used to realign the wood ring. He stated that if the wood actually became jammed inside the knives of the splitter box the machine would have to be shut off and the wood jam cleared manually, sometimes with hammer and chisels. He confirmed that once the plaintiff had taken possession of the machine part of the agreement was that Mr Harvey would go there for a week to show him how to operate it. Mr Ridolfo recalled that he was there for approximately three days and then said that he returned and told him that the plaintiff said he no longer needed any assistance.
Mr Ridolfo stated that when he operated the machine he would not put the splitter box mechanism control into neutral every time he loaded a fresh log into the splitter box. He said that it depended on that operator and it depended on the size or diameter of the logs as well. If the logs were smaller there were sometimes up to three log rings in the splitter box at once. If the log rings were larger sometimes there would only be one in the splitter box. Mr Ridolfo stated that you could either stop the splitter box and then load the fresh log ring or you could leave it in automatic and time the loading of the fresh ring so that it went straight into the splitter box. He said that there was sufficient time to do it that way if you chose to. Mr Ridolfo stated that he was aware that the lever on the splitter box control broke from time to time. He did not recall how frequently that was. He said that the arrangements for the repair were made between the operator and the mechanic employed by the second defendant. He said that as far as he was aware it was easily fixed taking somewhere between 20‑30 minutes to repair. He stated that when the lever was broken the machine was not operated and was shut down. Mr Ridolfo stated that he telephoned Mr Job about the broken lever. He said that Mr Job advised him that he couldn't give him much assistance because he had never actually heard of the actual splitter handle becoming loose or breaking. Mr Ridolfo said that Job told him that it was a simple threaded rod that that goes into a hydraulic valve so that there should not be too much difficulty in repairing it. In his evidence Mr Job did not recall a telephone call from Mr Ridolfo although he does remember that there was some comment about a broken lever when he flew over to Western Australia to repair another unrelated fault in the machine. Mr Ridolfo stated that at that stage he did not mention the problem with the splitter box lever breaking as at that stage it was not broken and they did not have any difficulty in repairing it.
Mr Ridolfo stated that he was the person who was in charge of work place safety in the woodyard. He stated that there were no warning signs or warnings or directions given to anyone who was going to be operating the machine not to place any body parts near the wood splitter. He said that was because it was an obvious risk to avoid.
The circumstances of the accident
The plaintiff purchased the wood processing machine from the second defendant in August 1998. By the date of the accident on 6 January 1999 he had had possession of the machine and had been operating it almost on a daily basis for approximately four months. Shortly after starting work that morning at approximately 9.00 am a log was loaded and was being cut into rings by the chainsaw mechanism on the machine. A ring had been dropped into the splitter box and the metal arms of the splitter box had pushed the ring into the knives on two occasions. The top part of the ring then dropped down into the splitter box to be pushed into the knives by the arms. However, instead of falling flat onto the bottom of the splitter box the log landed at an angle. With the splitter box mechanism still operating automatically the plaintiff said he gave the piece of wood a "quick kick to cause it to drop flat on the floor of the splitter box". He said it suddenly grabbed his foot. He was unable to free it and by the time he was aware of that he had been pulled out of the cabin, with his foot being dragged through the knives of the splitter box so he was unable to reach the controls to stop the machine. The plaintiff explained that he was still sitting in the operator's chair in the cabin of the machine when he kicked the piece of wood with his foot. He was not able to explain in what way his foot was caught by the section of wood. At one stage he stated that it nipped the sole of his shoe. When the arm in the splitter box reversed he was able to reach the controls and turn the machine off. He rang for help on his mobile phone and ambulance, fire brigade and police came to his assistance.
There was no "deadman" switch to deactivate the machine in an emergency. Although the second defendant provided a metal hook to use in shifting pieces of wood inside the splitter box the plaintiff did not use that hook on the day of the accident. In cross‑examination he said that the operator employed by the second defendant to demonstrate the operation of the machine showed him how to use the metal hook to adjust the position of pieces of wood inside the splitter box. He said that he did not use it on that day because he thought it would be a simple thing to use his foot and then he could keep the machine in motion. The plaintiff said that the locking mechanism on the splitter box control lever could not be used because the lever had been broken off. He said he did not know how long the machine had been in that condition as it was breaking all the time since he had purchased it. He said that he did not know where the hook was on the day of the accident. It was not in the cabin as it had been lost for an unknown length of time. The plaintiff said that the hook was found later underneath the machine covered in sawdust. The plaintiff agreed that he had used his foot before to adjust pieces of wood in the splitter block. He said if he used the hook rather than adjusting it with his foot he would have to stop the machine.
After the accident the plaintiff installed a barrier in the cabin opening adjacent to the splitter box. He described it as consisting of metal tubes lined with heavy duty mesh. He described it as being solid. It was fixed to the side of the cabin by the brackets that had been installed by the second defendant to hold the metal horizontal rod. This barrier guard can be seen installed across the splitter box side of the cab in figure 12 in exhibit 9. The plaintiff engaged an employee to operate the machine after his accident. The machine has since been sold and is now operating on premises in Margaret River. Mr Harvey and Mr Leno Di Toro stated that they saw the plaintiff at the second defendant's premises after the accident. Apparently he attended there to obtain oil to use on the machine. Mr Harvey said that he went up to see him after he had heard about the accident. He said that Leno Di Toro was present when the plaintiff said that he was "stupid for stepping into the splitter box". In cross‑examination Mr Harvey agreed that in a statutory declaration sworn in April 2001 that he had been told that the plaintiff "tried to clear a jammed log from the splitter box, while the machine was still running and that he had climbed down and used his foot to try to do this". He agreed that it was his understanding that that is what the plaintiff had done.
Mr Leno Di Toro said that he saw the plaintiff at the second defendant's premises after his accident. He said that the plaintiff said "I did a stupid thing, I should never have put my foot in there and I've got no‑one to blame except myself". He confirmed that Shane Harvey was present when the plaintiff made that statement. Mr Di Toro said the statement was made in response to his enquiry of the plaintiff as to how he had sustained his injuries. Mr Di Toro said the he'd only been told by someone else at the premises of the plaintiff's accident that day. He estimated that this conversation took place approximately three months after the accident when the plaintiff was still using crutches. The plaintiff agreed that he had attended at the second defendant's premises after the accident in order to pick up some oil. He also agreed that he saw Mr Leno Di Toro and Mr Shane Harvey there although he seemed unsure as to their identity. However, he denied that he told anyone that he had climbed out of the operator's seat into the splitter wood box area and tried to kick a piece of wood free. He also denied that he said that there was no‑one else to blame but himself.
The evidence of Dr Steven Chew
Dr Steven Chew is a mechanical engineer with consulting experience in mechanical engineering, ergonomics and occupational safety management practices. On 26 August 1999 he attended at the plaintiff's premises and carried out an inspection of the machine and an investigation into the accident. In a report dated 8 September 1999 (exhibit 9) Dr Chew gives a general description of the machine and a description of the operation of the machine supplemented by photographs illustrating his account. In par 18 of his report Dr Chew described the plaintiff's account of how his left foot came to be caught in the splitter box. He said that the splitter box mechanism was operating and a log ring had already passed through the splitter box. The remainder of the log ring dropped into the splitter box but at an angle. While the plaintiff was still inside the machine operator's cab he placed his left leg into the splitter box and attempting to flick the part log ring with his left foot so that it would rest on the splitter box floor. His lower left leg became trapped between the metal pushing plate closest to the cabin and the log ring. He was unable to free his left leg and it was pushed forward and into the splitter knives. At the time the splitter control lever was broken so that the only way to turn off the machine was to turn off the ignition switch and this was out of reach when his left leg was caught and dragged towards the splitter box. The plaintiff advised Dr Chew that although his understanding was that the metal hook provided with the machine could be used to reposition a log ring in the splitter box he found the use of the hook impractical because he had to stop the machine every time it was used so that instead he would use his left leg to flick and reposition a log ring inside the splitter box without having to stop the machine. Dr Chew stated that he was advised by the plaintiff that Tony Ridolfo and Shane Harvey showed him how the machine worked but that at no time did Mr Harvey give him any warning about the danger of placing his foot inside the splitter box nor any other specific safety related instruction. The plaintiff advised Dr Chew that Mr Harvey just showed him generally how the machine worked.
Based on the results of his investigation and the information given to him Dr Chew concluded that the parts of the machine which cause injury to the plaintiff are what he described as the "trapping hazard" in the form of the two moving metal plates and the "shear hazard" in the form of the splitter knives. He considered that these were two hazards that should have been isolated from a machine operator or any other person present in the vicinity of the splitter box. He suggested that the risk could be obviated by installing barrier guards around the working area of the splitter box. These barrier guards could have an interlocked hinged component to allow a person to gain access to the splitter box when required. Dr Chew stated that at the time of the accident the principles for guarding machine hazards have been described in the Australian Standard 4024.1‑1996 in the section entitled "Safeguarding of Machinery". He described in some detail the parts of the Australian Standards relevant to trapping and shear hazards. However, despite Dr Chew's description of the need to install barrier guards around the working area of the splitter box he conceded in cross‑examination that the issue in relation to the subject accident was really about access to the splitter box from the cabin by the operator. Dr Chew also stated that the risk of personal injury by the trapping and shear hazards in the splitter box could be reduced by proper instruction and training and by use of appropriate warning signs.
Dr Chew concluded that the plaintiff's accident had the following contributing factors:
·The absence of safeguards around the machinery hazards in the splitter box.
·Insufficient instruction and training of the plaintiff.
·Absence of warning signs.
·The plaintiff's failure to use the hook to adjust or manoeuvre the log inside the splitter box when the box was operating in automotive mode.
He considered that the absence of safeguards was the major contributing factor because if they had been installed the risk of the accident occurring would have been obviated. Dr Chew also conceded in the course of cross‑examination that the plaintiff's failure to fix the control lever was also a contributing factor in the accident.
Dr Chew prepared a further report dated 17 March 2005 and in the course of preparing that report had an opportunity to view the subject machine in operation. He was asked to comment in particular on whether an operator such as the plaintiff would have been able to gain easy access to the splitter box when in the cabin. Dr Chew observed the machine and its operation. He considered that it had not undergone any significant changes since he last inspected it in 1999. It had a similar structure, mechanisms and controls and the general operation was the same. As a result of his investigation Dr Chew stated that it was easy for an operator sitting on a chair adjacent to the edge of the cabin floor to put his left leg over the metal plate and right down into the bottom of the splitter box. He demonstrated that by means of a photograph (photograph 20 of his report (exhibit 10)). In cross‑examination Dr Chew conceded that in positioning himself to be able to place his left leg into the bottom of the splitter box he had to move right to the edge of the cabin so that only his right leg and buttock remained on the chair. He conceded that in doing so he was sitting right on the edge of the chair and would not be able to have his foot on the floor of the splitter box if he had been sitting in the centre of the chair. He also conceded that in order to place his foot in that position he would have to have made a deliberate movement by lifting his foot over the metal plates and down into the box and shifting his body accordingly.
Dr Chew agreed that an operator did need access to the splitter box but he considered that it would be possible for an operator to climb over a barrier such as the mesh barrier that had been installed by the plaintiff after the accident. At one stage in his evidence Dr Chew seemed to suggest that in his inspection of the machines operating he had not seen a log fall into the splitter box that required adjustment. However, it appears that he may have been referring to not seeing a log jam inside the splitter knives. At T140 he stated that he had seen logs fall in incorrectly on a number of occasions when he viewed the machine in machine in March 2005. He noted that when that occurred the operator physically had to manually correct it and when he did so the splitter box was stopped. At T120 Dr Chew also conceded that if the plaintiff had followed a safe work procedure and stopped the operation of the splitter box before he corrected the position of the log the accident would not have happened. However, he commented that he still believed that the engineering risk control measure of preventing access to the splitter box should have been in place to prevent an operator from getting into the splitter box at any time during the operation of the machine.
Dr Chew did not investigate the cause of the frequent breaking of the control lever in the splitter box. He also did not question the plaintiff about how often it broke or why it was not fixed at the time of the accident. Dr Chew's comments about the failure to provide proper instruction suggest that he is viewing the safety aspects of the accident from the perspective of safe work practices in the context of an employer/employee relationship which may well reflect the plaintiff's attitude.
Findings on circumstances of accident
I am not satisfied that the accident occurred in the manner described by the plaintiff. He claimed that his action was a "quick flick" with his left foot while seated at the control panel with his hands still on the controls. As a result of this action his foot somehow got caught by the wood or between the wood and the clamp of the splitter box and was dragged through the splitter knives. It is apparent from the evidence of other persons who have operated the machine such as Job, Tony Ridolfo and Mr Harvey that they find it hard to accept that he was able to place his foot so far down in the splitter box that it was caught by the wood and dragged through the knives. Dr Chew said that his investigation established that this was an easy thing to do. The photograph in exhibit 9 and his description has his left leg and left side of his body right out of the cabin. This is inconsistent with the plaintiff's description of a quick flick with his foot while still seated on the chair and with his hands still on the controls. It is also the case that while the witnesses who have operated the machine have said that it is not uncommon for rings of wood landing in the splitter box to require realignment they had not had experience of a piece of wood not falling flat on the floor of the splitter box after it had been through the splitter knives.
The plaintiff did not impress me as a reliable witness. He seemed to be very vague and almost dismissive about some details such as the whereabouts of the metal hook and how long the lever had been broken before the date of the accident. The accident happened over six years before the trial and it could be said that it is understandable that he may not remember some details. But this action was commenced in 2000 and the plaintiff must have been aware that those details would be important. I also accept that the plaintiff received grievous injuries to his left foot and leg and the trauma may make it difficult for him to recall precise details of what happened just before the accident. Whatever the causes may be I find that he has consciously or unconsciously reconstructed some of the events preceding the accident. His evidence was peppered with flippant comments that suggested his evidence was coloured by a desire to frame his responses in a way most advantageous to him and in an accusatory form. For example, when asked about whether there was a barrier on the cabin his response is "none whatsoever". When questioned about the instruction from Mr Harvey after he purchased the machine he described it in terms of "he was there for one and three quarter days and then he was gone" and "he said this is how you do it – I'm done see you later". In response to a question about being shown to put the splitter box mechanism in neutral he avoided a direct answer and said "I've been shown how to use the machine". This is an unusual response when there was no real issue when you look at all of his evidence that he knew that he should put the mechanism in neutral and lock it out. It is also inconsistent with the general tenor of his advice to Dr Chew about the extent of the instruction that he had received and his understanding of the operation of the machine. In exhibit 10 Dr Chew stated that the plaintiff told him that at no time did Mr Harvey give him any specific safety related instruction. The demonstration and instruction that the splitter box mechanism should be put in neutral before wood is adjusted in the splitter box is clearly related to safety. It is also the case that in general terms the form and emphasis in the plaintiff's evidence was more consistent with an employee complaining of an unsafe system of work rather than a self employed business proprietor who had control over the manner in which he operated the machine.
The state of the evidence does not enable me nor is it necessary to determine exactly what position he was in when his foot was caught or exactly how it was caught in the splitter box. It may be that his foot was caught when he was adjusting a log ring that had become misaligned in the splitter box rather than a partially cut ring that fell at an awkward angle. But even if that was the case and it was a partial ring I am satisfied that he did not give it a casual flick in the way that he described. I am satisfied that he moved out of his normal operating position and deliberately and consciously placed his foot well down into the splitter box although it may be that he did not actually stand in it. This scenario is also confirmed by his comments made to Mr Harvey and Mr Di Toro some time after the accident. I accept their evidence that the plaintiff did state to them in words to the effect that he had deliberately placed his leg in the splitter box. At the time of giving evidence Mr Harvey was no longer employed by the second defendant. I also found the plaintiff's denial in evidence unconvincing. He did not say what in fact was spoken of at the time he went back to the second defendant's premises. It is most unlikely that there would have been no conversation about the accident. While the plaintiff's assessment of the extent of his role in the accident is of course not conclusive in the circumstances of this case I consider that it confirms by view that the accident did not occur in the manner that he described. My finding that it was the plaintiff's actions that led to his leg and foot being caught in a splitter box and dragged into the knives does not of course dispose of the matter. The thrust of his case against the defendant is that defects in the machine and in particular the absence of a barrier allowed him to do this and failure to provide that barrier or alternative safety measures constitutes a breach of the defendants duty of care. However, the significance of the finding in relation to the circumstances of the accident is that the plaintiff's action was not an inadvertent act. It was a deliberate and conscious act on his part and it was also not an isolated one. Although his evidence was that when he had used that procedure before it was also a "quick flick with his leg" I find that it is most likely that whatever manoeuvre he adopted on the day of the accident was a manoeuvre he had done before in similar circumstances. It is also a significant departure from the method adopted by the other operators Tony Ridolfo, Mr Job and Mr Harvey. It was clearly an unsafe system and one that was contrary to the demonstrations and the verbal instructions and advice that had been given to him.
Negligence of the first defendants
The plaintiff claims that the first defendants owed him a duty of care to ensure that the machine was safe to use and operate. Paragraph 27 of the statement of claim alleges that this duty extended to the supply of a machine that was safe to use and operate, the provision of warning signs and a written manual of operating instructions, a reliable operating lever for the splitter box mechanism and design and manufacture of the machine that complied with Australian Standards. It is also claimed that the first defendants owed a duty to advise the plaintiff that the machine had been sold to the second defendant in a partly constructed condition and of the terms of the original supply agreement between the defendants. However, this issue was not actively pursued by the plaintiff and the evidence does not establish that the first defendants knew that the machine had been sold to the plaintiff by the second defendant until after the sale. There is no continuing obligation or duty on the part of the first defendants to advise the plaintiff that the original machine had been purchased without a cabin when Mr Job was contacted by the plaintiff in relation to a spare part some time after the sale and clearly some time after he had been operating the machine. In any event there is no evidence and nor was it seriously suggested that this could be in any way causative of the plaintiff's accident.
It was common ground that at no stage was any manual or written operating instructions provided by the first defendants. However, I am satisfied that sufficient oral instructions and demonstration was given to representatives of the second defendant. Demonstrations and advice and instructions about the general operation of wood processing machines was given in their first visit to Tasmania in July and demonstrations and instructions were given when they took delivery of the machine in September 1996. There is some divergence between the witnesses on whether the operator should put the splitter box mechanism into neutral before loading a new log ring. This seemed to be the practice of Mr Job and the operator operating the machine in the video in exhibit 2. Mr Ridolfo and Mr Harvey and the plaintiff generally kept the splitter mechanism operating automatically and timed the loading of fresh log rings to coincide with the widest opening of the splitter box. It is also the case that it is likely that this aspect of the operation will depend upon the size and shape of the log rings that are being loaded. However, there is no issue that the representatives of the second defendant were instructed to stop the splitter box mechanism by putting the lever in neutral and locking it before adjusting wood in the splitter box. The evidence of Mr Job was confirmed by Mr Ridolfo. This was passed on to the plaintiff by Mr Ridolfo and Mr Harvey. These instructions were either accompanied by an express warning or that was the obvious implication from the instruction. The fact of these instructions and the warning being given is also confirmed by the evidence of the plaintiff. He knew that the splitter box should be disengaged and locked and had done this himself while operating the machine. Although he avoided saying that he had been shown this by Mr Harvey I am satisfied that this did happen. The plaintiff complained about having to stop the machine to use the metal hook. I am satisfied on the basis of all of the plaintiff's evidence that he well knew that he was taking "short cuts" and was not operating the machine in accordance with the instructions he had been given. At T53 he was asked "You could have used the hook? His response "Yes, I could have done, if I had the hook. But it was very easy just to kick it" confirms this. When asked when he lost the hook he replied "God knows. It was underneath the machine and the saw dust". Although I am satisfied that sufficient instructions and warnings were given to the plaintiff it is clearly advisable for written instructions in the form of an operator's manual to be prepared by the first defendants and supplied with the machine. It is obviously good work place safety management and a safe system of work for employees in a wood yard to have a written manual and warning signs in appropriate positions to reinforce any visual demonstrations and verbal instructions. It is also a safeguard against vendors subsequent to the second defendant not passing on the warnings and instructions they had received. However, in this case I am satisfied that sufficient instructions were given to the representatives of the second defendant and were passed on to the plaintiff. I am also satisfied that the plaintiff was well aware what the appropriate operating methods were and was well aware of the dangers of placing any part of his body in the splitter box while it was still operating. There is therefore no causal connection between the lack of warning signs on the cabin or on the machine and the lack of any written manual operating instructions and the plaintiff's accident.
Barrier guard
There was some exploration of the possibility of guards or barriers being placed around the splitter box mechanism on the machine in the course of cross‑examination of Mr Job and Dr Chew. However, it became apparent that the only practical barrier would have to be erected on the cabin itself. I am satisfied that free access is required into the splitter box to free logs actually jammed in the splitter box knives. The configuration of the splitter box would also not easily lend itself to fixed guards around the box itself. The chute that feeds the log rings into the splitter box is fixed on one side and the conveyor carrying the smaller pieces of firewood is on the other. It would be difficult and I consider impractical to try to erect a barrier around the splitter box in circumstances where the operator would still be able to gain the required access. The knives or splitters in the splitter box are below the floor and are therefore not a risk to anyone outside the machine. The safety issue in this case is the need to keep the operator away from the splitter box and therefore the real issue is whether a barrier is required separating the operator in the cabin from the splitter box. At T111 Dr Chew said:
"What we are talking about is protecting an operator in the cabin from accessing the splitter box".
Although it would have been physically possible for the first defendants to construct a guard independently of the cabin by fixing it to the floor of the control area that is an impractical and I consider an unsatisfactory method of construction. The whole point of the second defendant constructing the cabin once it arrived in Perth was to facilitate freight. A safety barrier or door already in place would also complicate the design and construction of a cabin.
The first defendants contracted with the second defendant to provide a machine without the construction of a cabin. Although the second defendant had photographs and had seen the basic construction of the cabin on similar machines in Tasmania the construction of the cabin was designed and implemented independently by the second defendant. The machine was specifically ordered to be constructed without a cabin and supplied in that form to the second defendant to facilitate its transfer to Western Australia. Mr Job obviously did not see any difficulty with that as he said the cabin was a simple structure made of sheet metal and angle iron. There is nothing unusual about the nature of the cabin. Similar cabins are constructed on a wide range of industrial and earthmoving machinery. This was confirmed by Mr Giancola. Although the second defendant had the benefit of having seen similar cabins and had taken photographs that it provided to Mr Giancola I am satisfied that in the design and construction of the cabin the second defendant was acting quite independently. What discussion did take place between Mr Job and Mr Ridolfo about the cabin was cursory and there was no discussion about dimensions or style. Mr Job recalls having overhead comments about using perspex which he said he did not advise. There were no specifications or templates or details about the configuration of the cabins on the machines in Tasmania. The photographs would be unlikely to do anything other than give a "rough guide" as to how the cabins appeared on the machines in Tasmania. I am satisfied on the basis of the evidence of Mr Ridolfo and Mr Giancola that they brought independent views to bear on the design and requirements for the cabin to be constructed. This is confirmed by the distinct design employed in the cabin. The photographs of the cabins in Tasmania show a square and rather more rudimentary shape than the cabin constructed on this machine. More windows were utilised to give the operator a wider view. A perspex was used in the windows rather than glass and steel mesh was added around the windows to offer further protection to the operator from the operation of the chainsaw. The metal guard on the floor of the cabin was raised to a height of approximately 200 millimetres. A metal bar was designed to go across the opening to the splitter box with metal brackets built into the side to hold the metal bar. Mr Ridolfo contacted DOSHWA in relation to a need for rollover protection on the roof of the cabin if it was going to be used on bush sites. It is also significant that these machines are manufactured and produced by the first defendants not for retail sale to the general public but for firewood operators and people working in that industry and the machines are custom made to the order of individual purchases.
The first defendants did not have a duty of care to ensure that the cabin that was built by the second defendant was constructed to include a barrier guard if one was required. I find the first defendants were also not under a duty of care to advise the second defendant that the cabin should be constructed to include such a barrier guard if it was required. I consider that the duty of the first defendants in relation to the safe operation of the machine relevant to the issues that arise in this trial was discharged by the inclusion of the safety device in the controls and the instructions that the operator was to disengage the splitter box mechanism and lock it in place when wood rings are adjusted. The first defendants were entitled to take into account that in giving those instructions it was instructing representatives of the second defendant who were experienced operators in the firewood industry and who had the appropriate resources to arrange for proper design and construction of an appropriate cabin. Mr Job was entitled to have regard to the fact that the second defendant would have been aware of the dangers of the splitter box and the need to provide any safety devices either in the form of a barrier if that was required or by putting in place a safe system of work including appropriate warnings and instructions to any operators of the machine.
Reliable lever
I am not satisfied that the evidence establishes that the splitter box control lever was defective because of any fault in its manufacture. Dr Chew's evidence did not deal with this in any detail apart from commenting on the obvious, namely that if the lever kept breaking there must be something wrong with it. Mr Job's evidence which was not challenged was that there had not been a problem with the lever mechanism on any of the other machines that he had manufactured. It may be that the lever was put under some stress because of the twisted rubber band. It is not clear how this became twisted. None of the second defendant's witnesses claimed any knowledge of this. The plaintiff said he may have twisted it but he could not clearly remember. At T61 he said "Maybe I did twist it. Who knows?" It may be that constant use seven days a week for long hours placed some stress on it. It may be that although the second defendant was able to repair it without too much difficulty that the repairs were undertaken in such a way that the lever continued to malfunction every three or four or two or three weeks. The state of the evidence does not allow me to make clear findings as to the source of the problem in the lever or in fact the extent of it. Although there was some confusion in the course of the evidence it is clear that there were two problems that caused the lever to malfunction or fail. As Mr Job explained the splitter lever handle actually screwed into a valve and it was a small ball attachment to the valve that had broken on some occasions. This could be repaired by installing a replacement valve and two spare valves were actually fixed to the control panel. Although the matter was not pursued in any detail it appears that they were left on the control panel to accommodate levers for any additional functions that may be added to the machine. In addition to the fault connected to the valve a bolt that fixed the lever handle to the mechanism broke. That was repaired by welding two bolts together and fixing the lever handle to the mechanism. Exactly which one of these problems had caused the most recent breakdown in that mechanism prior to the accident is not significant. The plaintiff was not able to even estimate how long the lever had been broken prior to the accident. That fact together with his very vague reference to the lever breaking "all the time" suggests that he had been operating the machine without the benefit of the lever and significantly without the benefit of the locking mechanism for some time. The plaintiff did not give evidence that he had any particular difficulty in affecting the repairs or having the lever repaired. There is no evidence that the plaintiff had made any complaint to the second defendant and there was only one occasion when he spoke to Mr Job about a problem with the splitter box control lever. This also confirms the likelihood that the lever had been broken for some time and the plaintiff had simply neglected to repair it. The plaintiff did not impress me as the kind of person who would be reluctant to complain of any defects. If the lever was repeatedly breaking after he had repaired it as he suggested then he would have contacted the second defendant or made some complaint about it to them. Even if there was a defect in the splitter control lever there is no evidence to establish the cause of that and no evidence to establish that it was a product of the first defendants' design or manufacture of the machine. In any event there is no causal connection between the breakdown in the control lever and the plaintiff's accident as the control lever could have been repaired by him. Even with the control lever broken so that the locking mechanism could not be engaged the plaintiff could still have stopped the automatic operation of the splitter box by placing the mechanism in a neutral position manually. Although this would not give the same security as engaging the lock it would still have reduced the risk he exposed himself to.
Compliance with Australian Standards
I am not satisfied that a failure to have regard to the principles for guarding machinery hazards described in Australian Standard 4024 constitutes a breach of the defendant's duty of care. Mr Job had no knowledge of the existence of the Australian Standards which were only published some weeks before the second defendant placed the order for the machine. Although there was reference to interim standards preceding those published standards there was no evidence as to their dissemination or whether Mr Job should have had any knowledge of them or what in fact they contained.
The relevant parts of the general principles for guarding of machinery hazards propose that barriers and/or interlocked guards should be installed to control access to trapping and shearing hazards. The installation of a barrier or guard would have been included at the time of the construction of the cabin by the second defendant as referred to above. In Dr Chew's report (exhibit 9) the absence of an interlocked guard was not included as a contributing factor to the plaintiff's accident. Dr Chew also did not list the absence of a deadman switch as a cause of the accident and in any event he described that as an impractical device to be included in this machine.
Negligence of the second defendant
In par 25 of the statement of claim the plaintiff alleges that the second defendant owed the plaintiff a duty of care, inter alia, to ensure that the machine was safe to operate. The duty of care is said to arise because of the sale of the machine and because the second defendant was aware that the plaintiff would operate the machine to process firewood and that the second defendant represented that the machine would be safe to use for that purpose and also failed to advise that it had purchased it from the first defendants without a cabin. Paragraph 26 sets out the particulars of the second defendant's negligence. Included in those particulars is a claim that the representations referred to above were false and misleading. This aspect of the plaintiff's case as pleaded raises matters that overlap the other pleaded particulars of negligence and do not really raise any distinct issues. The representations claimed to be false rely on the plaintiff's pivotal claim against the defendants, namely that there were the following defects in the machine as supplied to him:
·it lacked barrier guards,
·it had an inadequate lever to operate the wood splitting mechanism,
·the plaintiff did not receive adequate instruction and training and warnings in relation to the safe operation of the machine,
·failure to comply with Australian Standards.
I am satisfied that the second defendant provided sufficient instruction to the plaintiff as to the safe operation of the machine. This included instructions to use the metal rod to adjust or manoeuvre wood in the splitter box and to put the splitter box mechanism into neutral and engage the locking mechanism prior to doing so. The nature of the instructions may not have been expressed in terms of a warning but that was the clear and obvious implication in the circumstances. The risk of placing any part of the body into the splitter box was not only obvious but had been recognised by the plaintiff when he first saw the machine in operation.
I am also satisfied that the second defendant provided a machine with an adequate control lever on the splitter box mechanism. Although that lever broke frequently for the reasons referred to above it was repairable but the plaintiff neglected to do so. As referred to above the evidence does not enable me to make findings as to the reason for the breakdown in the control lever. In any event the fact that the lever was broken at the time of the accident is not causally relevant as the plaintiff could have placed the mechanism into neutral albeit without the safeguard of being able to operate the locking mechanism. This he failed to do.
The safety aspects of the construction of the cabin by the second defendant focussed on the safety of the operator from wood chips dust and from risks posed by the chain saw positioned in front of the operator. The windows were extended and were comprised of perspex with a metal grill surrounding the windows. The side of the cabin positioned on top of and adjacent to the splitter box was left open with no door or solid barrier. Tony Ridolfo stated that it was considered impractical to build a door or substantial barrier there because access was required to the splitter box. A metal edge plate of 240 millimetres high was placed across the floor and a metal bar constructed across the opening approximately 830 metres high. This slotted into brackets built into the side. The photographs in exhibit 9 show the steel mesh barrier installed post‑accident slotted into those brackets. That steel mesh barrier was measured by Dr Chew at 830 millimetres.
The addition of the bar and the increase in height in the metal edge plate was to guard against the risk of an operator slipping and falling from the cabin rather than preventing access to the splitter box. Although Mr Harvey maintained that this metal bar was in position when he operated the machine I am not satisfied that it was included with the machine in the sale to the plaintiff. Mr Tony Ridolfo did not remember whether the metal bar was included in the sale. Although he recalls seeing the metal bar in place soon after the second defendant purchased the machine he had a practice of operating the machine without the metal bar in place.
The installation of the steel mesh guard after the accident is clearly a safety improvement. It is a more satisfactory safeguard against the operator slipping and falling from the open side of the cabin which would comprise a risk whether the splitter box was operating or not. The metal bar and the raised edge may not prevent this happening depending on the nature and extent of the fall. It may also prevent an operator making any inadvertent movement into the area of the splitter box. For the reasons already referred to above it is unlikely that such a movement would put any part of the operator's body within reach of the splitter knives and the bottom section of the splitter box. However, if an operator rested his foot on the top of that metal edge (as can be seen in photographs of Mr Harvey in exhibit 6) then there could be a risk that some part of the operator's foot could be jammed or hit by the movement of the metal plates at the top of the splitter box. An operator's foot could also be caught in the small gap between the edge of the cabin and the outside edge of the metal plate closest to the cabin. The barrier that was installed post‑accident would also not prevent access to the splitter box as it could be easily removed by sliding it out of the brackets, or alternatively the operator could climb over it as was suggested by Dr Chew. It may be preferable to have a similar barrier open rather like a gate on a hinge mechanism so that the operator can more easily access the splitter box.
Causation
If the plaintiff had been injured as a result of his chair slipping or for some reason fell from the open side of the cabin it may be that the second defendant's failure to provide such a barrier would constitute a breach of duty. However, this is not how the accident occurred in this case. Nor was the plaintiff's movements an inadvertent or reflexive kick of the foot. The accident was a consequence of the plaintiff's conscious and deliberate placing of his leg into the splitter box while it was operating to adjust a log ring that had been loaded into the splitter box, or alternatively to rearrange a section of ring after it had already been cut by the splitter box knives. This was contrary to the instructions to turn off the splitter box mechanism and engage the locking device and to use a metal hook to adjust the wood. It was an action undertaken in disregard for the obvious risk that he may be injured by the movements in the splitter box or have his foot jammed and dragged by the movement into the splitter box knives. While it may be the case that if such a barrier had in fact been in position at the time of the accident the plaintiff may have decided to stop the operation of the splitter box by placing his hand under the console, or alternatively by switching off the diesel motor. However, it is just as likely that the plaintiff would have either climbed over the barrier or removed the barrier leaving the mechanism in automatic mode and then accessed the splitter box. Clearly, the plaintiff has the onus of establishing that the absence of such a barrier contributed to his accident. He has not done so.
In considering the issue of causation as well as the extent of the defendant's duty of care it is essential that the actions of the plaintiff in operating the machine are put in the appropriate context. He was not an employee subject to the pressures and vagaries of whatever system of work was established by his employer. He was in a position to control the way in which the machine was operated and when and if it was operated when the control lever was broken. He had been operating the machine consistently on a daily basis since it had been purchased in August 1998. In Bethune v Qconn Pty Ltd [2002] FCA 1485 O'Loughlin J took into account the plaintiff's experience in operating a machine in assessing his degree of responsibility for an accident and noted that as that degree of responsibility increased so did the responsibility of the respondent diminish. At par 107 he stated:
"Indeed there would come a point of time when the respondent's breach of its duty of care would be reduced to negligible proportions."
The approach to the issue of causation when a plaintiff has acted negligently was described by Mason CJ in March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506 at 518, 519 in the following terms:
"As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff … as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff … and that injury occurs in the ordinary course of things. In such a situation the defendant's negligence satisfies the but for test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it."
I am satisfied that as a matter of logic and common sense the absence of a barrier did not create the risk of injury here. The plaintiff did not slip or fall or access the area of the splitter box as a result of some inadvertent act. He acted consciously and deliberately and on his evidence had done so prior to the accident. If there was any negligence on the part of the second defendant in failing to install a barrier across the opening of the cabin it was not causative of the plaintiff's injuries.
The particulars of negligence alleged against the second defendant also claim that the second defendant failed to comply with the principles of machine safety contained in Australian Standard 1042. The comments I made with reference to the first defendants not being required to know the content or existence of those standards at the time of the construction of the machine also apply to the second defendant. However, irrespective of that issue I find that if there was any failure to comply with that standard this does not constitute a breach of the second defendant's duty. In the preface to the standards it is stated that the standard is intended to contain the general underlying principles for the safety of machine systems in general, while leaving requirements unique to a particular type of machine to the relevant standard covering the guarding of that class of machine. Particular emphasis has been placed on the selection of appropriate safeguarding methods leaving engineers and designers of machines the opportunity to apply those principles to specific problems. The safeguarding methods referred to in the standard are set out in a hierarchy which become increasingly stringent as the perceived risk increases. Dr Chew's evidence which was clearly informed by the principles in that standard described safeguarding methods in a three level structure. The first level is to design a machine so that hazards are completely out of reach of operators and other persons. If that is not possible or practical the next level is to design physical or electronic barriers to stop access during operation or maintenance. On Dr Chew's evidence in this case the more practical safeguard was a physical barrier rather than an electronic one. The third level involving appropriate instructions and warnings and devices such as an emergency switch would reduce injury or reduce the likelihood of injury but would not obviate it in the same way as a physical barrier.
In the course of his evidence and in his reports Dr Chew suggested that a barrier guard should also be accompanied by an interlocked device which would prevent the movement of the metal plates in the splitter box unless the guard was in place. Thus, if there had been an interlocked barrier or guard isolating the plaintiff from the access to the splitter box unless the mechanism had been disengaged, then he wouldn't have been able to access the area and the accident would not have occurred. However, in the circumstances of this case I am satisfied that the failure to install such an interlocking guard did not constitute a breach of the second defendant's duty of care. The Australian Standard 1024 does not definitively set out what machines require an interlocked barrier guard. As mentioned above the standards are guiding principles for consideration of safety issues rather than an attempt to prescribe detailed installations. It may be that application of those principles would dictate the installation of an interlocked barrier in circumstances where an operator has ready access to hazards that could cause serious injury. In this case however access to the knives in the splitter box is only possible if an operator deliberately places some part of his body into the splitter box. As the photographs demonstrate and as Dr Chew conceded the only direct access to the splitter knives in the splitter box is from the operator's cabin. He also agreed that for something to be pushed into the splitter knives it would have to be right at the bottom of the splitter box at a height of not more than 18 centimetres from the floor. There is no duty on the part of the second defendant to install a guard or barrier that electronically disengages the splitter box mechanism when it is open when access to the splitter knives can only occur as a result of a conscious and deliberate action. The fact that an interlocked barrier may mean that the operator would have to turn off the mechanism or it would be turned off by the opening of the barrier does not mean that the installation of such device is necessary. Although there was no evidence led of the practical means by which such interlocking device could be introduced to the barrier it is likely that it would involve a reasonably sophisticated electronic or mechanical connection to the controls. It is of some significance that following his accident the plaintiff was content to install a physical barrier only and not one that employed an interlocking device. Dr Chew had ample opportunity of inspecting this machine and did not offer any criticism of the barrier presently installed. I do not consider that it could be regarded as a reasonable safety measure to be included by the second defendant at the time of the construction of the cabin in the context of a duty owed to the plaintiff. The second defendant was not the plaintiff's employer although it had a duty to provide a machine that was fit for the purpose of processing firewood, and able to be operated in a safe manner and in accordance with the instructions given. In assessing the issue of whether the machine was able to be operated safely regard should be had to the possibility of an operator acting contrary to the instructions in an inadvertent or forgetful manner. It is however not reasonable to expect the second defendant to guard against the possibility of a purchaser such as the plaintiff deliberately operating the machine in an unsafe manner and being fully aware of the risks that that exposed him to.
The defendants are not the plaintiff's insurers. Their duty of care does not extend to designing and/or installing all safety or preventative measures that could conceivably have prevented the plaintiff from acting as he did. They did not have a duty to stop the plaintiff from placing his leg in the splitter box contrary to instructions and in the face of such obvious danger. The plaintiff's evidence and his demeanour in the witness box reflected an attitude that he was for some reason absolved of responsibility in relation to the operation of the machine. He had been instructed and was well aware of the safety and appropriate operation of the machine. He had been operating the machine for approximately four months in the context of his own business so that he was in charge of safe work practices in relation to the operation of the machine. He was operating the machine with a broken lever on the splitter box mechanism so that he was unable to lock the lever in a neutral position. He does not even know when that lever broke in relation to the date of the accident. Even with a broken lever he could have stopped the mechanism by placing it in neutral manually. He did not do this. He had been instructed to not only disengage the mechanism but also to manually adjust wood in the splitter box by using the metal hook provided. He did not even have the metal hook in the cabin and did not know where it was apart from the fact that it was found at a later stage underneath the machine and in the sawdust. It is hard to avoid the conclusion that the plaintiff's approach to the use of the machine was more akin to an employee who did not have experience in operating the machine, had not been given proper instructions and required a degree of supervision. I consider that this attitude or approach has to some extent influenced parts of Dr Chew's opinion. The difficulty for the plaintiff is that in the circumstances of this case he was the person in charge or who should have been supervising the operation of the machine; he was the person who had the responsibility to comply with the instructions he had been given and to ensure that the lever was repaired and the hook was ready for use and in the cabin. In Uzabeaga v Town of Cottesloe [2004] WASCA 57 Murray J stated:
"The defendant was not an insurer. Its duty was to take reasonable care. It was not a duty to prevent any and all reasonably foreseeable injuries (Romeo's case [55]). It was not a duty to stop every person from diving from the groin."
In the same decision Steytler J confirmed those comments in the following way:
"I would only add the comment that there has, in recent times, been a greater emphasis, in the law of negligence, on the acceptance by individuals of a personal responsibility for their own conduct than may previously have been the case."
The plaintiff has submitted that his actions or role in contributing to the accident is relevant only to the question of contributory negligence. However, I am satisfied that this is not a case of the plaintiff's negligence merely contributing to the accident. In the circumstances of this case it was the plaintiff's actions that caused the accident and not any breach of duty by either of the defendants. The accident did not occur because the plaintiff was not prevented from placing his leg in the splitter box by the installation of a interlocked barrier guard. It occurred because he deliberately chose to do that despite the obvious risk. Unfortunately that resulted in his serious injuries. It was submitted by the plaintiff that if a barrier guard had been in place he would not have been able to place his leg in the splitter box and the accident would not have happened. It is submitted that from an objective point of view that is therefore the cause of his accident. However, that ignores the fact that it could just as easily be said that the accident would not have happened if the plaintiff had not acted in the way he did.
The plaintiff has not established his claim in negligence against either of the defendants.
The Trade Practices Act
In addition to the claim in negligence the plaintiff claims as against the first defendants pursuant to the provisions of Pt 5A of the TPA. The plaintiff makes no claim under that part of the Act as against the second defendant although cl 17 of the statement of claim purports to import terms that the machine was of merchantable quality into the supply agreement between the first and second defendants. However, as was pointed out by the second defendant in closing submissions the terms implied as to fitness and quality by s 71 of the TPA relate to the supply to a consumer in the course of business. Section 4B of the TPA defines consumer as a person acquiring goods that do not exceed the sum of $40,000 or are ordinarily acquired for ordinary domestic or household use. As the purchase price of the machine was in excess of $40,000 and was not of a kind ordinarily acquired for personal domestic or household consumption the agreement between the defendants for the supply of the machine is not covered by the provision of s 71 of the TPA.
Although the plaintiff makes no claim under Pt 5A of the TPA as against the second defendant that issue is raised in the first defendants' contribution proceedings against the second defendant whereby it is claimed that the second defendant is the manufacturer of the machine and is therefore liable for any relevant breaches of Part 5A of the TPA.
Although the first defendants are not a corporation they are covered by the provisions of Part 5A of the TPA because of the interstate element of the supply of goods to the second defendant. In par 29 of the statement of claim the plaintiff alleges that the first defendants are the manufacturer of the machine and supplied a machine that had defects within the meaning of s 75AC of the Act. It is also alleged that those defects caused the accident and the first defendants are therefore liable to compensate the plaintiff for damages for his injuries. Section 75AA of the TPA defines manufactured as including "grown, extracted, produced, processed and assembled". Section 75AC provides as follows:
"Meaning of goods having defect
(1)For the purposes of this Part, goods have a defect if their safety is not such as persons generally are entitled to expect.
(2)In determining the extent of the safety of goods, regard is to be given to all relevant circumstances including:
(a)the manner in which, and the purposes for which, they have been marketed; and
(b)their packaging; and
(c)the use of any mark in relation to them; and
(d)any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and
(e)what might reasonably be expected to be done with or in relation to them; and
(f)the time when they were supplied by their manufacturer.
(3)An inference that goods have a defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied."
The only relevant defect that needs to be considered in the context of the plaintiff's claim under the TPA is the absence of a guard of barrier between the operator's cabin and the splitter box. For the reasons already given I find that the evidence does not establish that any of the other matters referred to in the plaintiff's particulars are defects in the machine. I have found that the goods manufactured by the first defendants were confined to the machine supplied to the second defendant in September 1996, namely a machine without a cabin. If the lack of a barrier or guard in the cabin is a defect in the machine it is the second defendant rather than the first defendants that is the manufacturer for the purposes of any liability under PT 5A. This is consistent with my finding above that the second defendant designed and constructed the cabin independently of the first defendants. It is also consistent with the provision of s 75AK of the TPA and the definition of "supply time" in that section as being "the time when they were supplied by the actual manufacturer". I accept the submissions of the second defendant that there is nothing in Pt 5A of the TPA that precludes the possibility of two or more manufacturers. In fact this is contemplated by the provision of s 75AM providing for joint and several liability if two or more corporations are liable for manufacturing defective goods. However, I am not satisfied that the evidence establishes that it was anyone other than the second defendant that manufactured the cabin on the machine.
If the failure to provide a barrier in the cabin constitutes a defect it was manufactured for the purposes of the TPA by the second defendant. The fact that the first defendants manufactured cabins for similar machines and did not construct a safety barrier or that Mr Job did not regard it as necessary to install such a safety barrier in similar cabins does not constitute the first defendants the manufacturer of the cabin in this machine. The fact that the second defendant may well have copied the first defendants' cabin design or been influenced by any previous construction by the first defendants and the fact that the first defendants made no comment or criticism on viewing the cabin constructed by the second defendant also does not constitute them a manufacturer for the purposes of a liability action under the TPA.
Irrespective of whether the first defendants are the manufacturer of the cabin on the machine I am not satisfied that the absence of a barrier guard on the cabin renders the machine defective within the meaning of s 75AC of the TPA. The statutory meaning of "defect" in relation to goods is described in terms of "goods have a defect if their safety is not such as persons generally are entitled to expect". Although this at first glance looks rather like the reasonable man test the definition is to be arrived at by taking into account all relevant circumstances including the specific matters listed in s 75AC(2). The relevant circumstances in this case include the issues that arise in s 75AC(2)(a), (d) and (e), namely the circumstances of the sale, the use to which the machine is intended to be put and instructions that are given in relation to the machine. In this case it is significant that the machine is not a product that is directed and marketed to consumers in general but "custom made" to individual purchaser's requirements. The machine is manufactured and supplied to persons who are operating wood yards and are therefore of a class of persons who are inevitably going to be dealing with implements or machines for cutting wood. These implements or machines will of their nature be dangerous in the sense that an axe or chainsaw or wood splitter can be dangerous if not used and operated correctly. It is also relevant to a determination as to whether the machine is defective that together with the supply of the machine the first defendants gave instructions as to its correct and safe operation together with express and/or implied warnings in relation to the use of the machine. Any purchaser of a wood processing machine would therefore be aware of any dangers in the machine or the operation of the machine and it is significant in this respect that the plaintiff was aware of such dangers. The meaning of defective goods is further refined by s 75AC(3) that stipulates that an inference is not to be drawn that goods have a defect because after the subject supply safer goods of the same kind were subsequently supplied. This confirms that the determination of goods as defective is not solely an objective one but involves subjective considerations in relation to the circumstances of the sale and the expected use of the machine.
Even if my findings that the first defendants were not the manufacturer and that the absence of the barrier guard does not render the machine defective I am also not satisfied for the reasons already referred to that any defect in the machine caused the plaintiff's injuries. The causation requirement is described simply in s 75AD of the TPA in simple terms. A corporation will be liable if it supplies goods manufactured by it that have a defect and because of the defect an individual suffers injuries. Consistent with my findings and for the reasons referred to above I am not satisfied that the evidence establishes that the plaintiff suffered injuries because of a lack of a barrier guard on the cabin.
The plaintiff's liability action under s 75AD of the TPA is dismissed.
Third party proceedings
At the commencement of the trial orders were made giving leave to the third party to take part in the trial of the main action and cross‑examine witnesses. An order was also made that the third party would be bound by the outcome in the main action. The third party did not call any evidence in the third party proceedings. Documents relating to the issues were tendered by the first defendants through Mr Job. Although I have found the first defendants are not liable to the plaintiff the first defendants pursue the third party proceedings for costs incurred in defending the main action.
In the statement of claim against the third party the first defendants set out the terms of the insurance policy ("the policy"). The nature and circumstances of the plaintiff's claim and the second defendant's claim against the first defendants are referred to by reference to the statement of claim in the main action and contribution proceedings. It is alleged that the first defendants are entitled to be indemnified by the third party in respect of the claims brought against them by the plaintiff and the second defendant pursuant to a product liability clause. It is claimed that the firewood processing machine the subject of the action was a product sold by the first defendants within the terms of the policy. In par 8 the first defendants state that if it is liable to the plaintiff which is denied the plaintiff's claim arose out of the nature, condition or quality of the machine. If the first defendants are liable to the plaintiff which is denied then the material facts pleaded in the plaintiff's statement of claim constitute an occurrence for the purposes of the terms of the policy.
In par 10 of the statement of claim the first defendants allege that in reliance upon the terms of the policy the defendants are therefore entitled to be indemnified by the third party in respect of the claim for damages brought by the plaintiff and the claim for indemnity or contribution brought by the second defendant. The statement of claim then recites that the third party has failed or refused to indemnify the first defendants in purported reliance upon certain exclusions and general conditions in the policy. The first defendants seek a declaration that the third party is obliged to indemnify them to the extent of the total amount that the plaintiff may recover including costs against the first defendants. The statement of claim does not specifically refer to the first defendants' costs in defending the action. However, the relief sought in the statement of claim includes in the last sub‑paragraph (f) a claim for the cost of defending this action and of defending the second defendant's contribution proceedings and the costs of the third party proceedings.
In March 2005 orders were made that the only issue in the third party proceedings is the question of the liability of the third party to indemnify the first defendants pursuant to the terms of the policy. The third party has made admissions that it issued a public liability policy to the first defendants that provided product liability cover. An admission has also been made that the product liability cover would apply to this claim by the plaintiff but for an exclusion clause in the product liability cover and an alleged breach by the first defendants of general conditions in the policy.
The product liability clause provides, inter alia, as follows:
Definition:
"Products" means any goods, product or property sold, supplied, or distributed by you (including their containers) in the course of the Business after they have ceased to be in your custody or under your control.
We will indemnify you in respect of all sums which you shall become legally liable to pay for compensation in respect of bodily injury or damage to property as a result of an occurrence and caused by the nature, condition or quality of Products sold or supplied by you within the Commonwealth of Australia.
In addition we will also pay legal costs, charges and expenses incurred as a result of your entitlement to indemnity under this Optional Benefit and incurred with our written consent."
There is no issue and the third party has made an admission that the accident would amount to an occurrence.
The issues in the third party proceedings
Despite the parties' advice that the third party proceedings before me is confined to a narrow range of issues there is some uncertainty or perhaps confusion in the manner in which the submissions focussed on those issues. The thrust of the third party submissions are that it accepts that it would be liable to indemnify the first defendants if it was not for the exclusion clause and the alleged breach of the general condition. The submissions then focus on the contention that the first defendants' conduct in relation to the issues in the main proceedings bring it within the range of the exclusion clause and/or renders it in breach of the general conditions. However, these submissions are predicated on a finding that the first defendants are found to be liable in the main action. The impact of a wholly successful outcome for the first defendants on the third party proceedings was not really postulated.
In addition to that difficulty the submissions in relation to the "proximate cause" of the first defendants' liability are rendered somewhat artificial or hypothetical in the light of my findings in the main action. However, I consider it appropriate to traverse, at least in broad terms, the submissions that were made for two reasons. Firstly, it may be of some significance if I am wrong in my findings on the first defendants' liability in the main action. Secondly, although it is not entirely clear it may be that the third party submissions in relation to the exclusion clause are directed at the question of costs as well as the general question of indemnity. I say that this is not quite clear because I am unsure as to whether this was the intention in the third party's submissions. I am also unsure as to whether the third party's admission that it would be liable to indemnify the first defendants but for the exclusion clause extends to the issue of costs. The third party may be suggesting that even if the plaintiff does not establish his claim, the claim against the first defendants is fundamentally based on the allegation that they failed to install a barrier guard. On the third party submissions this falls within the exclusion clause as it maintains it is a defective design. It may be that the third party is submitting that if the plaintiff's purported claim falls within the range of the exclusion clause then there is no entitlement to indemnify the third party in relation to costs even though the plaintiff was unsuccessful in the main action. If this is the effect of the third party's submissions I do not find it to be tenable. The plaintiff's claim against the defendants encompassed a number of particulars of negligence and the lack of a barrier guard was only one of them. It is not possible with the benefit of the hindsight of the completion of the evidence to speculate that the lack of a barrier guard was the plaintiff's "best shot". To then argue that as that could be characterised as a defective design the third party is not liable to indemnify the first defendants in relation to costs if that is covered in the product liability clause is not a submission I accept. I will refer to that below.
The design exclusion clause
The exclusion clause relevantly provides that the third party shall not be liable for any defective design or error in formula or in specification of any of the products. There is no reference in this clause to a claim in respect of loss or injury caused by any defective design. However, I find that as a matter of construction that must be implied in the clause. It is the only construction that makes sense in the context of the policy as a whole. (See McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711).
The third party submits that the first defendants have the onus of proving that the proximate causes of their liability is covered by the indemnity clause. However, it accepts that it carries the onus of proving that the proximate cause or a proximate cause of the first defendants' liability falls within the design exclusion cause. Proximate cause for purposes of the indemnity issue means the real or most effective or dominant cause. This is to be compared with the notion of causation in negligence where the defendants' negligence need only be a material cause and not necessarily the dominant or most effective cause. The third party submits that the failure to design and install a barrier guard was the proximate cause of the accident and therefore of the first defendants' liability. It is submitted that this failure amounts to a defective design and consequently the third party is not liable to indemnify the first defendants because of the exclusion clause. Although the evidence raises a number of potential causes for the accident the third party submits that it is clear that a lack of a barrier guard was the dominant or effective cause. Simply put, it was argued that an objective view of the accident would result in the conclusion that the plaintiff suffered injuries because part of his body was placed in the splitter box mechanism and this occurred because there was no barrier guard between the cabin and the splitter box. Although other factors such as lack of warning signs and the plaintiff's negligent actions may have contributed to the accident for the purposes of the indemnity issue the proximate cause has been established as being the absence of a barrier guard. It is submitted that this also conforms with Dr Chew's opinion. If there had been a barrier guard there the plaintiff would not have been able to put his foot in it there would have been no accident and the first defendants would not have been sued by the plaintiff.
I have found that the failure to design and install a barrier guard by either defendant was not the cause of the accident. I have found that the first defendants did not manufacture the cabin. The only practical way for a barrier guard to be designed and installed was to be designed and installed into the cabin when it was constructed. The barrier guard was to protect the operator seated in the cabin to have access to the splitter box. It is the second defendant that was the designer and manufacturer of the cabin. As I have mentioned in my reasons in the main action Mr Job conceded in cross‑examination that it would be physically possible for a safety barrier to be built onto the floor of the cabin when it was supplied to the second defendant and before the cabin was built. However, that is not only clearly an impractical method to be adopted, it is also likely to be counter‑productive. Any safety barrier would have to be fitted onto or around the cabin. If a safety barrier had been erected there prior to the cabin being constructed it would have to be removed when the cabin was installed. It is clearly not part of the machine that was ordered by the second defendant and supplied by the first defendants.
But in any event I find that even if the installation of the barrier was the responsibility of the first defendants and even if I am wrong and the failure to install the barrier was the proximate cause or a proximate of the plaintiff's injury that failure is not properly characterised as a defective design.
The third party has submitted that the absence of a barrier guard was the result of a defective design of the machine. It was explained that that should be contrasted with a fault in construction or manufacture because of bad workmanship. It is argued that the reason why no barrier guard was installed by either of the defendants is because they did not design the machine with a barrier guard. The design was defective because the conditions that caused the accident could reasonably have been expected, namely that an operator would use a limb to adjust a misaligned log if he was able to reach into the splitter box area because there was no barrier. I consider that this argument misunderstands the concept of the expression "defective design" in the exclusion clause. In Vosten v Commonwealth [1989] 1 Qd R 693 at 708 Ryan J described the concept of design in the following terms:
"The design of the product and the construction of the product itself are distinct matters. The design is an idea of conception; it is … quoting from the Oxford English Dictionary 'a preliminary conception of an idea that is to be carried into effect by action'. When a decision was made on the site to fit a particular method of anchorage that involved two things: a decision on the design of the method of anchorage, and the execution of that design by fitting that anchorage. If the design decision was not defective but its execution was it could not be said that the injury arose out of the defective design of the product. On the other hand if the design itself was defective and the injury arose from that defect the insurer could rely upon the clause to exempt itself from liability."
Although the decision in Voston was concerned with the question of whether the standard of rope used in the anchorage was a design fault rather than a safeguard component, that description of design is apposite. It is also important to distinguish between the use of the phrase "design" when that is used to describe a feature that is incorporated into a product at the time it is manufactured and "design" as something that is part of the original concept or plan for the manufacture of the product. I consider that that was the former use that was employed by Dr Chew when he said that the barrier guard could have been "designed" into the machine when it was constructed. He was not here referring to a concept or plan for the inclusion of a barrier guard but its construction or execution at the time it was manufactured. This does not mean that he was saying that the absence of a barrier guard was a design fault. It is no doubt for that reason that he specifically forbore to say that its absence would be classified as a design fault. It is of course the case, as the third party properly concedes that it is for the Court to decide if the absence of the barrier guard is a defective design or not. The distinction that I have just referred to is not a matter of semantics. The fact that a safeguard that may be of benefit for safety purposes could or should have been installed in a product at the time of construction does not mean that its absence renders a machine or product defective in design. A product is not defective in design if in concept and in operation it is fit for its purpose and able to perform the task for which it was designed and manufactured. In this case the wood processing machine was designed and manufactured to process firewood. In terms of that function there was no defect in the design and construction of the machine. It was fit for its purpose and function as it processed firewood as it was intended to.
The reference to an "error in formula or in specification" in the exclusion clause supports the characterisation of defective design as involving an error or failure in the basic substance of the product rather than an omission to provide a safeguard against a negligent use of the product. An error in formula or specification suggests a fault in the substance or operation or fitness for purpose of a product rather than a failure to provide some safeguard. I have not been referred to nor have I been able to find an authority that deals specifically with the definition of "defective design" in the context of failure to provide a safeguard or some safety feature. However, I draw some comfort from the approach adopted in Legal & General Assurance Society Ltd v Commonwealth of Australia & Precision Cranes & Hoists Pty Ltd (1985) 3 ANZ Ins Cas 60‑621 and the emphasis therein on "fitness for purpose" and operational integrity. In Chalmers Leask Underwriting Agencies v Mayne Nickless Limited (1982) 2 ANZ Ins Cas 60‑463 the New South Wales Court of Appeal also approached the concept of defective design in terms of fitness for purpose or operational integrity. At 77, 581 Huley JA stated that:
"A design is defective if it is not as adequate for the purpose as art or skill can make it. Similarly defective workmanship is workmanship not up to the standard which could be obtained by a skilled workman."
Although in both of these cases the Court was considering a structural problem rather than a safeguard or safety device I consider that the way in which the concept or definition of defective design was expounded confirms my finding that in the circumstances of this case the failure to install the safety barrier to prevent an operator leaving the machine does not fall within the meaning of "defective design" in the exclusion clause.
Breach of general conditions
The combined business insurance policy had a general condition that applies to all sections of the policy and provides as follows:
"You must take all reasonable care –
(d)to prevent bodily injury or loss of damage to property;
(e)to comply with any law, by‑law, Australian Standard or regulation of any government or local government body;
(f)to prevent bodily injury or damage to property due to manufacture, sale or supply of defective products.
We shall not be liable for loss, destruction, damage, liability, accidental injury or illness caused or contributed to by your failure to comply with this condition."
It is common ground between the parties that conditions requiring the insured to take 'reasonable care' means that the insured has to act reasonably in its dealings with the insurer. The concept of reasonable care cannot be negatived by negligence as the purpose of the cover is to provide for negligence on the part of the insured. The insured will still be entitled to indemnity for negligence but not for reckless conduct or reckless indifference to normal precautions that should be taken." See Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390.
Obviously my finding in the main action that the first defendants have not breached a duty of care and are not liable pursuant to the TPA means that I am not satisfied that the evidence established that the first defendants acted recklessly or with reckless indifference. However, even if I am wrong in my findings in relation to the main action and the first defendants did fail to exercise reasonable care in the negligence action there is no evidence that the first defendants acted recklessly in relation to any of the relevant matters. Mr Job had provided for safety mechanisms in the construction of the machine by the installation of a locking mechanism on the splitter box control and by provision of the appropriate demonstration and instructions as to the safe use of the machine. On Mr Job's evidence which was not contradicted there had never been a claim for personal injury arising from any of the machines manufactured by the first defendants. Mr Job had no knowledge of the existence of Australian Standards when the machine was manufactured. Nor did he attempt to make any enquiries or seek any advice as to what safety measures should be incorporated into the machine. However, that does not mean that his ignorance could be characterised as reckless or reckless indifference in the circumstances of this case. Although Mr Job agreed in cross‑examination that there is always a possibility that in a work place environment an operator may do negligent or "stupid" things this was put to him in a general and hypothetical manner. I am satisfied after considering the whole of his evidence that the prospect of someone acting in the way the plaintiff did in this case was not something that had occurred to him nor was it a matter that a reasonable person would have had in contemplation when manufacturing the machine. In any event, I have found that the inclusion of a safety barrier, if it was required, would have been effected at the time the cabin was manufactured by the second defendant.
Findings in the third party proceedings
I have found that the first defendants are not liable in damages to the plaintiff because the accident was caused by the negligence of the plaintiff and not by any actions of either of the defendants either in negligence or pursuant to the statutory provisions of the TPA. The difficulty that that poses for the third party proceedings is that the submissions have been predicated on a finding that the first defendants are liable either in the action by the plaintiff or pursuant to the contribution proceedings. The cover in the policy is liability insurance. The agreement to indemnify is in terms that the third party agrees to indemnify the first defendants "in respect of all sums which you shall become legally liable to pay for compensation in respect of bodily injury as a result of an occurrence." The requirement to indemnify therefore only arises if the defendant is legally liable to pay compensation. On the basis of my findings in the main action the first defendants are not liable to pay any compensation to the plaintiff or to the second defendant.
However, the first defendants are seeking the costs of defending the action including costs in the contribution proceedings and the costs of these third party proceedings. Although the first defendants will obtain an order for costs as against the plaintiff this will not cover all the costs sought in the third party proceedings and of course there is always the possibility that an order made against the plaintiff may not be satisfied. The issue that then arises is whether in the circumstances that now pertain, namely where there is no requirement to indemnify the first defendants in relation to the claims in the main action, is there an obligation on the part of the third party to indemnify in relation to costs incurred in successfully defending the actions. This issue was not properly explored in the submissions in the third party proceedings. This may be because as I mentioned above the submissions were predicated on the basis that there would be a finding of liability on the part of the first defendants. However, that relief is sought by the first defendants in their pleading and was referred to in the outline of submissions provided at the start of the trial in addition to the written closing submissions. As the first defendants filed written closing submissions after the completion of the trial the third party responded with closing submissions in reply. In par 15 it appears that the issue of the effect of a successful defence is raised. However, because the first defendants did not have an opportunity of commenting on those submissions I will invite further written submissions from the first defendants and the third party on the issue as to whether the costs extension in the insurance policy entitles the first defendants to claim the costs of defending the main action and the third party proceedings.
Until I receive further submissions from the parties on this matter I do not consider it appropriate to make any declarations. I will however make the following comments. The inclusion of a provision for payment of legal costs is sometimes referred to as a "costs extension clause". The costs extension clause in the policy is framed in terms that the third party will pay legal costs, damages and expenses incurred as a result of the entitlement to indemnity. It is not clear what that means. Does it mean that those costs are only recoverable if the requirement to indemnify arises? I am also unsure as to whether the third party's admissions that the product liability cover would apply to this claim but for the exclusion clause and the alleged breach of the general conditions extends to the question of a claim for costs. I also note that this issue arose for consideration in the decision of Karenlee Nominees Pty Ltd v ACN 004312234 Ltd (1994) 8 ANZ Ins Cas 61‑236. Although the costs extension clause in that decision was framed in broader terms the discussion of relevant authorities and commentaries in legal texts suggests that costs extension clauses are often given a liberal interpretation and are amplified by implied terms in some circumstances. The decision in Karenlee Nominees was referred to in the case of Allianz Australia Insurance Ltd National Jet Systems Pty Ltd [2004] SASC 438. However, I also note that in that case the costs extension clause is not as narrow as the clause in this policy.
It would seem to be an unusual outcome if an insured would be in a position of being able to claim full indemnity (including legal costs) if a plaintiff is successful in a claim but have no recourse against an insurer if a claim is successfully defended.
0
6
2