Franklin v Kone Elevators Pty Ltd
[2011] VSC 108
•28 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
No. 8453 of 2009
| SCOTT RUBEN FRANKLIN | Plaintiff |
| V | |
| KONE ELEVATORS PTY LTD | Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2010 | |
DATE OF JUDGMENT: | 28 March 2011 | |
CASE MAY BE CITED AS: | Franklin v Kone Elevators Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 108 | |
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ACCIDENT COMPENSATION – Workplace injury – Negligence – Breach of statutory duty – Whether contributory negligence – Assessment of damages – Pecuniary loss damages – Pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr G Chancellor | Maurice Blackburn Lawyers |
| For the Defendant | Dr J Wilson SC with Mr C Hangay | Thomsons Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Background......................................................................................................................................... 2
Evidence in relation to system of work, equipment, instruction and risk control................ 6
System of work.............................................................................................................................. 7
System of work: generally........................................................................................................... 7
System of work: 2003 - preceding onset of Franklin’s injuries............................................... 11
System of work: 21 and 22 August 2003................................................................................. 12
Complaints about system of work............................................................................................. 15
Plant and equipment.................................................................................................................. 16
Complaints about equipment.................................................................................................... 18
Instruction and supervision...................................................................................................... 19
Risk assessment and risk reduction......................................................................................... 20
Findings on evidence...................................................................................................................... 21
Disputed factual issues.............................................................................................................. 21
Failure to call witnesses............................................................................................................. 23
Witnesses - credit........................................................................................................................ 24
Were complaints made?............................................................................................................. 24
Method of installing flex at 1 Collins Street............................................................................ 26
Negligence or breach of duty......................................................................................................... 28
Principles...................................................................................................................................... 28
Does the evidence establish negligence?................................................................................ 30
Does the evidence establish breach of statutory duty?......................................................... 35
Did the negligence or breach cause the injury?...................................................................... 36
Contributory negligence................................................................................................................. 37
Damages............................................................................................................................................. 41
Effect of injury on work capacity.............................................................................................. 41
Past economic loss...................................................................................................................... 43
General damages......................................................................................................................... 44
Conclusion......................................................................................................................................... 46
HIS HONOUR:
Introduction
Scott Franklin (the plaintiff), now 43 years of age, claims damages for a back injury which was sustained when he was working as an elevator technician with the defendant (“Kone”). The injury was sustained in August 2003.
Franklin has not worked for Kone since his injury and his employment has since been terminated. Apart from some attempt to work as a real estate agent in 2006/2007 Franklin has not worked since August 2003 in any capacity.
Franklin alleges that Kone was negligent, inter alia, in failing to provide a safe system of work and failing to comply with the Occupational Health & Safety (Manual Handling) Regulations 1999 (“the Manual Handling Regulations”).[1] Alternatively he alleges a cause of action based upon the breach of those Regulations.
[1]References in this judgment to the Manual Handling Regulations are references to the relevant statutory provisions in force at the time of the alleged injury.
There is no dispute that Franklin did suffer a serious back injury in August 2003 when performing work for Kone. As a result of the injury he underwent spinal fusion at L 5/S 1 on 11 May 2004. However, Kone disputes that it was negligent or that it breached the Manual Handling Regulations.
Furthermore, even if it was negligent or acted in breach of the Regulations, Kone says that by his own negligence Franklin contributed to his own injury, loss and damage. He did so, says Kone, essentially because he failed to comply with Kone’s system of work, failed to seek assistance and failed to report or complain about difficulty in the performance of his work tasks.
There is also a contest about the extent to which Franklin is capable of carrying out any employment duties presently, or in the future, and whether all his claimed incapacities now relate to his work injury.
Accordingly, the questions for resolution are as follows:
1. Was any negligence or breach on the part of Kone a cause of Mr Franklin’s injury?
2. Was there any, and if so what, contributory negligence on the part of Mr Franklin?
3. Has Mr Franklin’s work-related injury prevented him in the past, and will it prevent him in the future, from undertaking gainful employment (and, if so in each case, to what extent)?
4. If yes to the first question, what is the appropriate sum of damages to be awarded to the plaintiff to compensate him for his injury, loss and damage?
Background
Scott Franklin commenced work for Kone’s predecessor, Edmiston & O’Neill Lift Services, in 1990. He was then aged about 23. He began work as a fitter.
Kone is a substantial, international elevator installation and maintenance company. In 1996 it took over the business of Edmiston & O’Neill and thus Franklin became an employee of Kone.
Between 1996 and 2000 Franklin worked variously as a storeman and as a purchaser within Kone. It was not until 2000 that he transferred to the position of lift fitter within the company.
From the time he commenced as a lift fitter he worked in a crew of four Kone employees consisting of Liam Kelly, Robert Pollard, Malcolm Senn and himself (“the crew” or “the team”). [2] Kelly was a qualified electrician and was the leading hand within the crew. When Franklin joined the crew in 2000 the other three members of the crew had been working together for some period of time.
[2]References to the term “crew” or “team” are used interchangeably throughout this judgment.
Kone’s work crews were divided into three broad areas: installation crews – which installed new elevators; service crews – which maintained and repaired elevators which Kone had installed, mainly under service contracts taken out by the customer with Kone; and service-sales crews who added new equipment to existing elevators.
Apart from occasional and sporadic forays with the installation crew, Franklin and his crew always worked as a service crew – that is, in the maintenance and repair of elevators. Some crews were fixed – site crews, only working on the one site. Franklin’s crew was not such a crew but went from site to site.
The servicing of elevators included such tasks as:
•Replacing electrical cable (called “flex”) which carries the electric signals from the lift car to the motor room;
•Replacing lift “ropes”, being the steel cable which lifts the elevators up and down the shaft;
•Replacing or servicing lift motors, pulleys and other plant; and
•Rebalancing the lift by adjusting the counter weights in the lift shaft (usually by the use of hand held test weights).
Over the relevant period of time during which Franklin worked as a lift fitter, equipment for the crews, including rolls of flex, ropes, pulleys, trolleys, test weights and block & tackle, were stored at premises occupied by Kone at South Melbourne. It was from those premises, most days, that each crew would start out by loading up the plant and equipment needed for the day’s work onto a truck and then setting off.
Franklin first experienced some back pain whilst working on a job in or about April 2003. He required no time off work, nor did he see a doctor as a result of those symptoms. He continued working. In early August 2003 he again felt more pain in his lower back but, once more, thought it would resolve and he kept working.
On Thursday 21 and Friday 22 August 2003 his crew was working on lifts at 1 Collins Street, Melbourne. They were installing new electrical flex in two elevators over the period of two days. It was awkward and heavy work. On the first day, Thursday 21 August, Franklin says he began to feel pain in his lower back. But he managed to work through the day, and he returned for work the next day.
On Friday the crew was installing flex in the second lift. Franklin’s job was to stand on top of the lift car and feed the electrical flex into a duct which then led to the motor room at the top of the lift shaft. Although there may be some dispute as to how long the activity took, and precisely how it was done, there seems no doubt that it was whilst doing this activity that he experienced a very sudden and sharp pain in his lower back. He immediately had shooting pain down his left leg into his knee and calf. He could not continue the heavy work he was doing. He saw out the day sitting down, operating the buttons to move the lift car up and down whilst the other members of the crew completed the work.
Over the weekend he spent much of the time in bed, resting. He returned to work on Monday 25 August 2003. He tried to lift a 15 kilogram test weight at the beginning of the day. He immediately experienced similar pain in his lower back to that which he experienced the previous week. He left work that day and has not returned to Kone since.
He saw a general practitioner, Dr Dunne, the next day. Various tests were performed. Conservative treatment was administered over a period of weeks. He was then referred to an orthopaedic surgeon, Mr Roy Carey, on 18 November 2003. More investigations were undertaken, including an MRI and a guided L 5/S 1 nerve root block in December 2003. In February 2004 a lumbar discogram was performed.
The diagnosis was that Franklin had a spondylolytic spondylolisthesis (ie. one disc had slipped over another) at L 5/S 1 of some long standing which had been aggravated by his work duties causing disc herniation and nerve root compression.
Mr Carey recommended a laminectomy and spinal fusion at L 5/S 1. Franklin accepted the advice and underwent that procedure on 11 May 2004. His recovery was complicated by a tendency on his part to become addicted to opiate medication used for pain relief. Thus he experienced much difficulty with Endone withdrawal.
Since his operation in May 2004 three significant issues have played out. Firstly, there has been a question about the success or otherwise of the fusion operation, and the possibility of re-performing the procedure, perhaps a different way. Second, there has been the difficulty of formulating an appropriate and effective pain management regime, complicated both by the question as to whether there was an ongoing physical instability in the spine due to failed fusion, and secondly by the issue with opioids. Third, there has been the onset of anxiety and depressive reaction to the whole experience. The interplay of these issues has been the subject of much medical analysis and treatment.
Franklin is undoubtedly unfit for any further manual work. He has attempted re-training and some employment in lighter work. In 2005 he undertook a course in Computer Aided Design (Auto CAD) with a view to seeking employment as a draftsman. However, long periods of sitting was an issue. In 2006 he undertook a six week real estate agent’s course and then gained employment at three successive offices of Ray White Real Estate. He did so from mid 2006 to March 2007. Ultimately he found that work too demanding. It seemed to throw him back to a very difficult period of pain management throughout 2007 and 2008.
He has since benefited from the reduction of intake of some of his medication and from psychological counselling in order to develop strategies to cope with his pain and outlook generally. Nevertheless he remains today on a formidable array of medication designed to relieve pain, and then to deal with the consequential problems which some of his medications have caused as side effects.
He is married to Rebecca. They have known one another since November 2002. Their marriage is a second marriage for each of them. Both have older teenage children from their previous marriages. Together they also have two children, both boys, now aged 6 and 4. At present, Franklin remains off work. He is not seeking work as he believes that by reason of his constant pain and his ongoing disability he is incapable of performing any work at all.
The injuries which Franklin alleged he has suffered as a consequence of breach of duty by Kone are as follows:
•Injury to the lumbar spine including injury at the L 3-4, L 4-5 and L 5-S 1 levels requiring surgery.
•Referred symptoms to the legs.
•Psychiatric reaction to the incident including the development of anxiety and depression.
•Scarring and disfigurement.
Franklin particularises the negligence on the part of Kone in the following terms (with some particulars being incorporated together):
•Failing to provide a safe system of work or a safe place in which to work.
•Failing to supply the plaintiff with proper assistance, including mechanical assistance.
•Failing to properly instruct or to supervise the plaintiff or to provide suitable manual handling training.
•Failing to provide safe plant and equipment.
•Requiring the plaintiff to perform work which:
•was too heavy, awkward and repetitive.
•involved manually handling elevated cables in circumstances where the defendant knew or ought to have known the plaintiff was likely to suffer injury.
•required working in confined spaces for extended periods of time.
•at too fast a rate.
•Failing to carry out any appropriate risk assessment on the work to be performed.
•Failing to comply with the provisions of the Occupational Health and Safety Act 1985 and the Regulations made thereunder.[3]
[3]The Occupational Health and Safety Act 1985 does not confer a right of action in civil proceedings (s 28); but see para [120] below with respect to the Manual Handling Regulations.
Evidence in relation to system of work, equipment, instruction and risk control
Neither in the pleadings nor in submissions did Franklin confine the alleged breach of duty causing injury to any single event, although significant focus was given to the work performed at 1 Collins St on 21 and 22 August 2003. Rather he relied upon the cumulative effect of heavy, repetitive and awkward manual handling over the years from 2000 when he commenced work in the service crew.
Attention was therefore given to the modus operandi of the crew generally, not just on a single day or so. The main issues on which the evidence concentrated in respect of an alleged breach of duty, both common law and statutory, were –
• System of work (including the pace of work)
• Plant and equipment
• Instruction and supervision
• Risk assessment and risk reduction
Evidence of how work was performed was given by Franklin, and by Robert Fraser and Liam Kelly (both called for the defendant). As mentioned earlier, Kelly was the leading hand/foreman of the service crew. Fraser was at all relevant times the quality safety and training manager for Victoria and Tasmania with Kone Elevators, now retired. Fraser, qualified as an electrical fitter and mechanic, performed many roles with Kone in the 14 years he worked for them.
System of work
System of work: generally
Franklin described in some detail the equipment or materials typically used by his crew and the means by which they were moved in and out of buildings in which the crew was working.
He described two different types of materials which were used in the installation or servicing of elevators, trailing flex and ropes.
Trailing flex is wiring which joins the lift car to the motor room and carries the power and other electrical signals between the elevator and the motor room.[4] Drums of trailing flex[5] were conveyed from the equipment store at South Melbourne to the particular job in question by truck, typically loaded on and off the truck with a forklift or crane. But at the site, once off the truck, the drums would either be placed on an upright trolley[6] (described further below) or would be rolled by hand using the circumference of the drum like a wheel. Franklin estimated the drums to weigh well over 100 kilograms. If stairs had to be negotiated the crew would either take it off the trolley, get around it and manhandle it up the stairs by one pulling backwards and another pushing from below.
[4]The trailing flex runs from the motor room down the shaft, beside the lift and then is hooked up underneath the lift car. As the lift travels up the shaft it pulls the flex up behind it (that is, the flex ‘trails’ beneath the car).
[5]Photographs 6 & 7, Exhibit A.
[6]Photograph 1, Exhibit A.
The second type of material, the ropes (ie. steel cables), were likewise spun on drums. Franklin said the drums varied greatly in size with some weighing 50 or 60 kilograms but the heaviest weighing over 250 kilograms.[7] They would similarly be loaded on and off the truck with a forklift or crane and then either conveyed into the relevant job site on a trolley or by rolling the drums in the same manner as the flex.
[7]Photographs 8 & 9, Exhibit A.
The smaller drums could be moved about on the upright trolley and manoeuvred onto the trolley manually. That manoeuvring might be undertaken by one person, sometimes more. Stairs would be negotiated in the same way as with drums of flex.
Whether drums of flex or rope, Franklin described how they would be put into position once they reached the location on the job site where they were to be used. The system for setting them up consisted of two A-frame stands and a metal pole. Once the drum was rolled as close to position as possible a steel pole was placed through the centre of the drum and then manually lifted from the drum onto the two A-frame stands that had been put into place. If done by one person, that person would first lift one side of the bar and put it into the A-frame, and then lift the other, and so on. He described that work as extremely awkward and very hard.
By contrast he said that the new elevator business had a device called a drum roller set. There was no need to lift the drums onto the drum roller set – instead there was a small ramp and the crew would roll the drum up the ramp and it would roll across and fall into position in a set of rollers.
Other equipment commonly used by the service crew included ‘test weights’. These were solid metal blocks (somewhat like a large brick) with a rounded handle set into the top of each weight.[8] They were used for several purposes including being placed in the lift to test loads, but also being placed on the top of counter weights in the lift shaft to offset the weight of the lift as it moved up and down the shaft. These test weights varied in weight from 10, 15 to 25 kilograms. Franklin explained that, generally, they would be wheeled into the building in special crates on the flat trolleys.[9]
[8]Photographs 2, 3, 4 & 5, Exhibit A.
[9]Photograph 2, Exhibit A.
When the weights had to be placed on the counter weights within the lift shaft one member of the crew would stand on the top of a lift and another would hand the weights up to that first member. Franklin explained that if you were the one on the top of the lift you had to bend over the lift door motor (situated on the lift roof, above the door), reach down and grab hold of the weight by the handle, then lift it up, and straighten your body. He estimated the lift motor was between 30 centimetres and 50 centimetres high. Once the weight was then held on the top of the lift one then had to twist around to face the rear of the lift in order to place the weight on top of the counter weight adjacent to the lift and the lift shaft. If, on the other hand, you were the person outside of the lift it was necessary to bend over, pick up the weight from the trolley, lift it, turn around and then lift the weight to chest level or higher, bend forward and then hand it up to the person on top of the lift. [10]
[10]The method was depicted in a diagram drawn by Mr Franklin: sheet 2, Exhibit B.
A further piece of equipment described by Franklin was what he called a sheave.[11] A sheave was essentially a large steel pulley which, from the photographs, could be of the order of one metre in diameter – perhaps more. The rope, or steel cable, would pass over and around these sheaves by a variety of methods[12] connecting the lift car to the counter weight and other fixture points of the lift shaft.
[11]Photograph 10, Exhibit A.
[12]Alternative configurations were depicted in diagrams drawn by Mr Franklin: sheets 4 & 5, Exhibit B.
Once again, these sheaves would be conveyed from the store to the job site via a truck, being loaded and offloaded from the truck in the same manner as the drums. At the job site smaller sheaves could be lowered onto a flat bed trolley or even stood on the upright trolley. Larger ones which were too big for either of the trolleys would be rolled by the crew as if rolling a wheel.
Other equipment or materials which Franklin described as being required to be manually handled to and from, and at the job site were shackles, lever blocks and wire rope slings.[13] The lever blocks and chain blocks consisted of steel hooks, chains and pulleys to be used for lifting and moving heavy items of equipment on site. Franklin described how such blocks needed to be lifted by someone on top of the lift to attach to a sling being lowered through the motor room to suspend the lift car at some point in the operation. The chain blocks were carried in plastic milk crates[14] which could weigh between 25 kilograms and 40 kilograms. They were carried by the workers by holding the crates by the handles on either side, held at about chest height.
[13]Photographs 11 & 12, Exhibit A.
[14]Photograph 12, Exhibit A.
Franklin gave evidence that the company placed pressure on the crew to complete works as quickly as possible in the service area of the business. Franklin sought to give an example of that type of time pressure saying that, whereas the crew might estimate a job would take one and a half days, managers would ask them to get it done in one day. They may ask for extra helpers to get it done in that time, but quite often those extra hands did not turn up.
As team leader of the crew of which Franklin was a part, Kelly was responsible for the work to be undertaken and the equipment and methodology to be used. In the course of the defendant’s case, Kelly gave general evidence regarding the methods of handling the various items described by Franklin, none of which significantly contradicted – indeed much supported - what Franklin had described.[15]
[15]Transcript 349-353.
Fraser gave evidence only of a “usual practice” kind, as he did not typically accompany Franklin’s service crew in their work. Nothing that he said particularly contradicted evidence given by Franklin regarding the work method, save in respect of the feeding of flex into ductwork which is dealt with more particularly below. Fraser stated that Kone’s practice in moving materials, in particular the way in which drums of rope were moved up stairs, was industry practice, not just practice undertaken by Kone.
System of work: 2003 - preceding onset of Franklin’s injuries
When Franklin first experienced low back pain in early 2003 the crew was doing a lot of roping jobs which he described as ‘very heavy work’. Roping work involved the pulling of the ropes (ie. steel cables) out of the drum whilst on the A-frame and feeding it to the person who was standing on top of the lift, who then hauled the rope to the top of the lift car. That person was required to lean over the door motor, situated on the top of the lift car, so as to grab hold of the rope and pull it up to avoid it damaging any part of the door. Then the rope had to be fed upwards to run over the sheave in the motor room to allow another person to then pull the rope downwards. The most challenging part was pushing the rope up enough to get slack over the sheave, because if the rope was pulled too hard over the sheave it would grip, and the rope would not move.
Rolling up the old rope onto the drum at the foot of the shaft was also described by Franklin as strenuous work particularly as more weight was loaded onto the drum and it became harder to wind. Because the handle, at its lowest point, was only 15 or 20 centimetres off the ground, one needed to bend down whilst winding.
It was in the course of doing this work in early 2003 that he experienced back pain and pains into his knee. He did not tell anybody about it immediately but kept working, thinking he just had mere back strain or muscle strain. He did not see a doctor, nor did he take any time off work.
In early August 2003 whilst performing some work at 600 Collins Street he had another episode of back pain. On that occasion the crew had removed a hoist motor from the motor room. Franklin estimated the weight of the motor at between 500 kilograms and one thousand kilograms. The means of moving it was to repeatedly lift it from the ground using a chain block, and fixing points above the motor, and ‘half lifting, half dragging, pushing, take it across the motor room floor’ to get it above the hole in the floor to lower it down to the floor below.
His back pain was experienced when the crew was getting ready to reinstall the motor. He said that he began experiencing pain when they were pushing the motor along the footpath outside the building in the flat trolley, and then later when they were actually manipulating the chain block to lift the motor back into the motor room. The footpath had lots of ripples and bumps in it. He remembers standing up and having quite a significant pain in his back. At the time, he was accompanied by the other members of the crew, Kelly, Pollard and Senn. He said he did not report his back pain to anyone other than Kelly. It was not reported to Robert Fraser, the manager of that crew. He kept working in the days afterwards and the pain gradually settled.
System of work: 21 and 22 August 2003
The next, and final incident, occurred at 1 Collins Street on the 21st and 22nd of August. The crew was there to install new trailing flex in two lifts. Drums of flex were moved to the top floor, manhandled off the flat bed trolley and the flex mounted onto the A-frame in the manner previously described. The lift was positioned at the top of the shaft, as close to the motor room as possible. The procedure on that occasion entailed Kelly being in the motor room, Senn and Pollard remaining with the drum and the A-frame on the landing floor, and Franklin on the top of the lift.
Franklin, from the top of the lift car, passed a builder’s cord to the crew members on the top landing floor who tied the flex to it to enable Franklin to manually pull the flex onto the top of the lift. This was done by Pollard and Senn feeding the flex down beneath the floor of the lift car, to enable Franklin to pull the flex up past the side of the lift car until he had it in his hands. The distance from the drum of flex to where he was standing on top of the lift was three to four metres.
He would then hold the flex, which is about two inches in diameter, in both hands near his chest, twist and then walk across the lift car to the other side of the roof. He would then draw enough flex towards him to allow some slack to form around his feet. He would then put one foot on the flex to prevent it from falling back down the lift shaft and then feed the flex upwards into a duct shaft. He would then continue this process of hauling and pushing until the flex was reached by Kelly in the motor room. Franklin would then continue feeding the flex up into the duct shaft. Because the flex was going around corners and edges of the lift itself, and it was necessary to cause the least damage to the flex as possible, the process involved continuous moving across to the edge of the lift, drawing up more flex, moving across to the opposite side of the lift, placing his foot on the cable to prevent it falling back again and feeding it up the shaft.[16]
[16]The process was depicted in a diagram drawn by Mr Franklin: Sheet 1, Exhibit B.
Franklin said this process was difficult because the cable was quite heavy. He said it would have been easier if there was another person on the roof of the lift to help hold the weight of the cable, whilst he thrust it up into the duct. But that was not possible with only four members – two needed to be down at the drum and one needed to be in the motor room.
Also involved in the job was the movement and placing of test weights both into the lift and onto the roof of the lift. As described earlier, they were handed up to him, he would need to lean over the door motor of the lift, grab hold of the weight and then pass it across the roof of the lift. He believes he did this between six and ten times, in that fashion.
He explained that the whole of the first day he had some aches and pains but not sufficient for him to seek help. He said that the portion of the job involved in putting the flex up into the motor room took approximately half a day. They did one lift on the first day at 1 Collins Street and then returned the second day to do the second lift. He estimated that the time of actually forcing the flex up into the duct work occupied between approximately the mid morning break (9.30 am) and lunch time (around 12 noon).
The next day the crew returned to 1 Collins Street to undertake work on the second lift, in the same fashion. Again Franklin was on the roof of the lift car. He recalls at one point, prior to lunch, pulling the flex across the roof, and beginning to shove it up the duct work. Franklin described the sensation he felt at that time: ’I had an explosion of pain in my back, I felt really ill, had massive leg pain and I basically had to sit down on the bow and catch my breath.’[17]
[17]Transcript 155.
He said he then told the others what had happened. Because he had already put most of the flex up into the duct work Pollard came onto the roof and finished doing his job. Franklin himself did not get off the roof because he said his leg was so sore he did not trust getting down the ladder. He said Pollard told him just to wait, that he may as well stay on top of the lift and drive it because it only involved pushing buttons with his hands. Accordingly, for the rest of the day, that is basically what he did.
Franklin was cross-examined about the method of installing new flex at the 1 Collins Street building. Propositions were put to Franklin concerning a different way, said to be the usual or typical way, in which flex was fed into the lift car from the motor room and then drawn off the drum. Whatever might have been the usual way it was done, Franklin explained that in this particular case at 1 Collins Street they had been unable to get a rope down from the motor room to attach to the flex because of other cabling that was in the duct from the motor room. Accordingly they adopted a different method of trimming the end of the cable, wrapping it up with tape to make it smaller, removing some of the insulation and then forcing it up the duct into the motor room for Liam Kelly to take hold of it. It was Franklin’s job to stand on top of the lift car and perform the task of pushing the flex up into the duct.[18]
[18]Transcript 200.
Kelly and Fraser both gave evidence about “usual” methods of installing flex which not only differed from the method described by Franklin, but also differed from one another.[19] Neither was able to specifically say what was the method adopted at 1 Collins Street on the days in question, Kelly because he could not recall and Fraser because he was not there.
[19]Fraser described Kelly’s method as the ‘reverse’ of what Fraser thought was the conventional method: compare Kelly at Transcript 360-362 with Fraser at Transcript 414.
Franklin was challenged about the improbability of Kelly remaining in the motor room whilst Franklin was struggling with his task yet lending no assistance. Franklin said that Kelly was up in the motor room and was unable to see him. But he did concede that Kelly was complaining it was taking so long to which Franklin said he had responded by saying that it would be easier with two on the top of the lift car.
Complaints about system of work
According to Franklin, he and other members of the crew made various complaints to management.[20] One such complaint was that they did not have enough members with experience. On some jobs they had to rely upon inexperienced people to give them a hand. If a crew member was unable to attend work due to illness or had a rostered day off again they would end up shorthanded.
[20]Transcript 137.
He also said that from time to time he complained about loads being too heavy. Franklin was invited to recall specific occasions. He said that when he first joined the crew he complained about how heavy the equipment was that they were loading. He said he made that complaint directly to Kelly. The response, he said, was that Kelly told him just to grab another man to assist, and that he could do it.[21]
[21]Transcript 185-186.
He denied the suggestion put to him during cross-examination, that at no stage did he ever complain to Fraser about any aspect of the performance of the work prior to 2003. Rather, he said that, ‘we did complain about the conditions’.[22] When it was put to him that he did not take enough steps to complain, for example, by filing a formal complaint or even refusing to work unless the position was remedied, Franklin said that it was ‘more of a case of not rocking the boat’,[23] and not wanting to be seen as the weak link and a complainer. When pressed for the number of occasions over the years when he made complaints of this nature he said it was ‘way more than ten occasions … a lot of occasions’.[24]
[22]Transcript 188.
[23]Transcript 188.
[24]Transcript 189-190.
Franklin said that he did not think it odd that, despite the high number of complaints, nothing was being done because he said that small things were being done, some things changed but a lot of things did not. He gave some examples of some small changes. He also said he complained that crews were required to work at too fast a pace. When pressed about this Franklin said that it was a ‘continual complaint daily that time was short’.[25]
[25]Transcript 191.
Plant and equipment
Franklin described the plant and equipment involved in performing the task of an elevator serviceman. One of the devices used on a daily basis was the upright trolley[26] which had a cluster of three wheels on each side, no doubt to enable the trolley to be pulled up steps or stairs. He said the wheels of the trolley used by his crew were in poor condition and did not roll very well. Quite often, he said, they encountered difficulty wheeling the trolley across even flat surfaces. He said it did not perform well on stairs. The trolley was used to move anything from ropes to tools and lifting equipment. Apart from that trolley there were also flat trolleys, similar to a piano trolley. Such trolleys had a handle on one side which enabled it to be pulled or pushed.
[26]Photograph 1, Exhibit B.
There were no purpose-built trolleys for the movement of either the drums of rope or the drums of flex.
According to Franklin there was a difference between the equipment that was used by the new elevator business and the elevator service business in which he was generally employed. Whereas the service business used the lever and chain blocks I have mentioned, the new elevator business had electric levering blocks made of a new, lighter construction. Even though some of the electric blocks were heavier they were nonetheless carried around on their own specially made trolleys.
Franklin claimed that the trolleys used by the new elevator business were always newer, well maintained and, if anything happened to them, they were discarded. He claimed that the new elevator business seemed to get a substantial amount of new equipment frequently. As to the wheels of the trolleys he asserted that the new elevator business trolleys had large diameter pneumatic tyre wheels whereas the service business had the smaller, hard wheeled type. He claimed that the older trolleys were more difficult to use up and down stairs.
He described a device called a “stair climber” trolley. He said there were two special stair climbing machines available for the service department which were used on occasions. Fraser gave similar evidence as to the availability of such devices which had a hydraulic ram which would bring the base of the trolley up to the step on which the worker was positioned. The climber could therefore be ‘walked’ up the stairs. Fraser said that there were two stair climbers available to any worker, which were always plugged into an electrical outlet to ensure they were charged and ready for use.
Franklin claimed they were only occasionally used because they were extremely heavy and awkward to use. He gave some detailed description of how such a stair climber needed to be negotiated when climbing up a stair, and the physical demands it imposed.[27]
[27]Transcript 131.
Franklin denied the suggestion put in cross-examination that from 1996 to 2003 both the maintenance crew and the installation crew used the same tools. But that suggestion was not made good in the defendant’s case. Fraser stated that there were four cages set up for security of tools. One was used by the new elevator business, second was the repair division's, third was escalators and the fourth one tender repairs. Although he said the tools required for the new elevator business were similar to the repair division’s tools[28] he also conceded differences.[29]
[28]Transcript 399.
[29]Transcript 427-8.
Complaints about equipment
Franklin gave evidence of complaints he said he made about the equipment used for the servicing tasks.[30] Most of the time when he referred to complaints he referred to ’we‘ making such complaints. It was not entirely clear who Franklin meant by ‘we’ although one may assume that he meant members of his team or crew.
[30]Transcript 134-136.
He said that they complained that the equipment was overly heavy, inappropriate or badly maintained. He specifically adverted to the A-frames, saying they would have preferred a drum roll set; the winding mechanism for winding up old ropes; the trolleys; the counter weight prop stands (ie. that they were excessively heavy); and the condition of a lot of the chain blocks.
Franklin said these complaints were made ‘over the years’ and that the complaints were made often. From time to time they were asked what equipment they would like to have replaced when money was available. But when they handed management a list of equipment they would like replaced, nothing ever came of it. Franklin was asked to say to whom the complaints were made. He said, ‘often directly to Bluey [Kelly] who was our team leader at that stage and also directly to our team manager, Mr Robert Fraser, so Liam Kelly and Robert Fraser’.[31] Despite the complaints, and aside from being provided with a second trolley that was of equally poor condition to the first, he said they did not receive any new or better equipment to replace the other equipment they complained about.
[31]Transcript 137; see also Transcript 187-188.
Fraser said that in the period 1995 to 2003 he never personally received a complaint from employees regarding the equipment. He stated that even if Franklin had reported any complaints to him, and he (Fraser) did nothing, Franklin could have taken his complaint to the OH&S committee. The committee was comprised of managers and employees who worked ‘in the field’, who were elected by other employees ‘in the field’. Fraser gave evidence that any complaints made to the OH&S committee were recorded in the OH&S minutes and log by the person responsible for resolving the complaint. If such minutes or log existed it was not put in evidence nor was it denied that such documents had not been discovered by Kone in the proceeding.
Instruction and supervision
Little if any direct evidence was given by Franklin about instruction or supervision given by his employer as to the method of performing work other than to say he took his instructions from Kelly who was the foreman and that he received no particular manual handling training.[32] Franklin agreed, however, under cross-examination, that during his employment he had undertaken a number of courses which had focused on safe practices when securing loads in the workplace.
[32]Transcript 134.
In addition to being foreman, Kelly was also the occupational health and safety representative. The committee met monthly and it was his responsibility to bring up safety items if he saw something wrong. Regarding the methods of work the company required the service crews to adopt, he said ‘basically we used to look after ourselves’.[33] He was asked to explain what induction was given to employees on any new site. It seemed only to consist of being shown where exits were in the case of emergency. He was also asked what training or instructions were given to members of his crew in relation to seeking help for the performance of activities. He said he never gave any instructions but thought it was understood that if anyone wanted a hand they only had to ask for it.[34]
[33]Transcript 347.
[34]Transcript 348.
He was then asked a range of questions about instructions given to members of the crew about how to use equipment. His answers[35] were as follows:
(a)No instructions were given about the use of trolleys, or how to move the crates of block & tackle;
(b)In relation to difficulty moving any particular piece of equipment what he would say was – ‘if it looked ridiculous you’d say “hang on” but if it didn’t, you would say nothing’.
[35]Transcript 350.
The overwhelming impression given by Kelly was that there was little if any instruction given to the crew members about how they were to go about performing tasks of lifting and moving pieces of equipment. It seemed basically to be left to the individual to decide what seemed appropriate, and to request assistance if assistance was thought necessary. Fraser gave evidence of a ‘standard instruction…always in force’ in relation to safety: it was, ‘if somebody is doing a job and they don’t think it’s safe they don’t do it. If then somebody instructs them to do it and they still think its unsafe they then ring the manager or even the general manager’.[36]
[36]Transcript page 402.
Risk assessment and risk reduction
Franklin stated that whilst he was working in the service department he was not aware of the company carrying out any manual handling risk assessment in respect of the work which the service department undertook, nor, to his knowledge, was any job safety analysis carried out upon the work.
By contrast, from his experience when working in the new elevator business, he claimed that each time they went upon a new site they had to do an induction which included signing a form to say they had read an assessment of the risks involved in the job, and that the workers had understood the precautions needed to be taken against those risks.
Fraser stated that depending on the individual circumstances of the building and materials, in particular the drum of rope, he was sure that individuals would do a risk assessment. Fraser could see no risk to employees in lifting heavy weights if the lifting was conducted as part of a team. Fraser admitted that there is always a potential risk in undertaking work of this nature, but emphasised that the work was being done by individuals who were accustomed to doing it as part of their profession.
No evidence was adduced of any documented, or other formal, risk assessment or job safety analysis being undertaken by Kone in relation to the tasks performed by Franklin or his work crew.
Findings on evidence
In the final analysis there was not a great deal of debate about what was actually done by Franklin and the service team at Kone. Nor was there any significant difference about the level of supervision, the nature of instructions, the equipment used or the extent of any risk assessment undertaken by Kone. The real debate concerned the character or quality of the work activity – relevantly, whether it was of such a character that it denoted a failure on the part of Kone to discharge its duty of care towards Franklin.
Disputed factual issues
The only significant dispute on the facts, as opposed to whether those facts demonstrated breach, lay in two principal areas:
(a)Whether Franklin made the various complaints he alleged that he made regarding weight, rate of work, equipment etc; and
(b)The method of installing flex at 1 Collins Street on 21 and 22 August, and how long it took.
Putting those substantive disputes to one side, Kone criticised Franklin’s evidence regarding the system of work as being “woolly”, “imprecise”, “vague”, “generalities”, and “uncorroborated”. Whether or not particular aspects of the work were too hard, arduous, or deserving of any other adjective, is ultimately a matter for me to evaluate and take into account when considering if Kone breached its duty of care. I am not much assisted by debate whether Franklin was right or wrong in alleging that something was “too heavy” or “very hard”, except in the context of deciding whether complaints were made and the significance of those complaints.
In large measure the defendant’s criticism concerning Franklin’s evidence stemmed from the nature of Franklin’s case. He did not rely simply upon the events of a particular day but the cumulative effect of heavy work over a period of time. The nature of his injury, according to the evidence, was that it was produced by exposure to repetitive, heavy work, over the course of time – not just the product of a single incident.
Hence it was relevant for Franklin to give evidence of a general kind of the typical lifting, pushing and pulling activities, and of the typical weights of the items so moved. Because reliance was placed upon such matters as the resistance generally encountered due to the condition of equipment (such as a trolley), or the awkwardness of a particular activity (such as winding flex on to a drum), it was not particularly surprising that Franklin could only describe such activities in general terms. No single incident involving any of those typical activities gave rise to an episode of pain such that it would be memorable, yet the activity itself was potentially relevant to the injury ultimately suffered.
For these reasons I am not persuaded that the criticisms of imprecision or generality are damaging to Franklin’s case.
Failure to call witnesses
I will also deal in this context with the criticism of the evidence being “uncorroborated”. Here, Kone was making a submission based upon the Jones v Dunkel[37] principle, arguing that Franklin’s failure to call either Senn or Pollard (the other two members of the crew) should cause me to draw the inference that their evidence would not have assisted Franklin. Franklin himself makes the reciprocal submission against Kone.
[37](1959) 101 CLR 298.
Firstly, I think there is little scope for the principle to operate because the real field of any factual dispute is, as I have said, quite narrow. Secondly, I prefer Franklin’s submissions in respect of which of the two parties – Franklin or Kone – would reasonably be expected to call either of the two identified employees. No evidence was given as to whether Pollard or Senn still work for Kone. Prima facie one would infer that an employer, or former employer, would have the most ready means of adducing those persons as witnesses.
Further, Franklin was capable of giving his own evidence of what work he performed. His evidence was not inherently incomplete or unpersuasive merely because it was not repeated or corroborated by any other person. If Kone wished to dispute his evidence the evidentiary onus lay upon it to call rebutting evidence. As it demonstrated by calling Kelly and Fraser, both former employees, Kone could do so (and did do so) by calling some of its former employees to give such contrary evidence.
In those circumstances I do not draw any adverse inference against Franklin for failing to call Pollard or Senn. I am more inclined to draw such an inference against Kone, especially in respect of the issue of complaints as I will mention below.
Before turning to the specific areas in which there was some dispute on the facts I will say something briefly about the three witnesses of fact.
Witnesses - credit
Franklin impressed me as a witness who was endeavouring to give a truthful and accurate recollection of events. I did not form any impression that he was consciously seeking to embellish, nor that he was careless in trying to recall. The events of which he spoke concerned him directly and he had good reason to have given a lot of thought about them. I accept that there is a human tendency, when recalling events responsible for personal suffering, to focus heavily upon the negative aspects of those events and thereby, unwittingly, give them a degree of weight which they may not necessarily deserve. But to recognise that is not to imply any real criticism of a witness but simply to understand that different witnesses can see the same set of events from a particular, subsequent perspective which accounts for variations in recollection between witnesses.
Kelly was a down to earth, gruff character who, I believe, gave his evidence as best he could. He had been with Kone a long time and, whilst having responsibility for the team because of his experience and electrical qualification, did not appear all that comfortable in accepting genuine supervisory responsibility. He was, in my view, quite candid about matters such as the giving of instructions – or lack of it – to members of the crew. In my view his evidence reflected his perspective as a man who had gone about the business of heavy physical work over a long period of time with little fuss but also with an expectation of little fuss from others.
Fraser, in my view, was similar to Kelly in these respects. Importantly, having regard to his demeanour in the witness box and the answers he gave in respect of questions about the nature of work activities, I gained the impression that Fraser would not have been naturally sympathetic to a worker complaining about the nature of duties or the company’s equipment – especially a younger worker.
Were complaints made?
On the face of it there appeared to be a head-on conflict on the question of whether or not complaints were made by Franklin or any other members of the team concerning the work activity, rate of work and quality of equipment. Franklin’s evidence on this issue certainly gave the impression that complaints were regular and ongoing for the three years or so in which he worked for the team. On the other hand, he also indicated that there was some natural reluctance to press complaints because of the desire to protect one’s job and not “rock the boat”. It is perfectly understandable that a worker in a small team, especially the newest of those workers, should feel a reluctance to be seen as a “whinger” in the workplace. That is particularly so when none of the activities are overtly causing injury and, even when some aches and pains develop, such aches and pains might be thought to be a natural part of the job that everybody was expected to put up with.
It was not alleged by Franklin that he made any written or formal complaints. He simply says that he complained to those in the team, and to Fraser, expecting that they would be taken up with the relevant occupation and health committee.
Neither Fraser nor Kelly recall Franklin having made complaints. Fraser sought to support his absence of recollection by saying that, if such complaints had been made, they would have been reported to the OH & S Committee and recorded in its minutes. This then opened the issue of whether he had consulted the minutes, and he confessed that he had not sought to check them since the incident occurred in 2003 in preparation for giving evidence. His appeal to this train of logic somewhat undermined the persuasiveness of his recollection, standing alone.
What has not been suggested in submissions, but certainly occurs to me as likelihood, is that what one person calls a complaint another person might simply regard as a general “whinge”. Whilst Franklin may very well have articulated his feelings about the weight of items he was expected to move, and the quality of the equipment, and how fast the team were sometimes expected to work, Kelly or Fraser may have treated such statements as general workplace gripes without registering or recalling them as complaints in any formal sense. Hence, years later, they do not particularly recall complaints being made whereas Franklin firmly believes he made them. I am satisfied that, from time to time, Franklin did complain about equipment, difficulty of work and, occasionally, the time within which they were expected to complete jobs. In reaching this conclusion I have not found it necessary to draw any inferences from the failure on the part of Kone to call Senn or Pollard.
In the end, however, for reasons which will become apparent, I do not consider it of great significance whether or not such complaints were made. They are chiefly relevant to the question of whether injury might have been reasonably foreseeable arising from the system of work which was in place, and I am able to make such a determination without relying upon whether or not complaints were made. They also have some relevance to the question of contributory negligence, discussed below. I certainly do not treat the differences in evidence between the various witnesses on the subject matter of complaints as impugning their credit on any other issues of substance.
Method of installing flex at 1 Collins Street
In my view the evidence given by Franklin about how flex was installed at 1 Collins Street should be accepted. Indeed, unless I formed the view that Franklin’s evidence was generally unreliable – which I do not – there is little if anything to stand in the way of accepting his evidence on this point.
Kelly was unable to recall how the flex was installed at 1 Collins Street but was merely able to say it was ordinarily done in a different way to that which was described by Franklin. Fraser was not there at all and could only state what in his experience was the customary way of installing flex. As I have mentioned, that method differed from Kelly’s.
Franklin accepted that the way they installed flex at 1 Collins Street was somewhat unusual but nevertheless said that, for particular reasons, it was done the way he described. He was able to describe that method in great detail.
The one drawback I had in accepting Franklin’s evidence was the length of time that he estimated it took for him to feed the flex up into the duct whilst standing on top of the lift on each of the two days. From what he described, it was necessary to push the flex from the top of the lift up a duct into the motor room. The lift was situated above the top floor of the building and it was not particularly clear how many metres of ductwork lay between the top of the lift and the motor room through which the flex needed to be threaded. The estimate of two or two and a half hours to perform the task did seem inherently long and perhaps unlikely. Fraser estimated that if the task as described by Mr Franklin was performed it would have taken a fraction of the time Franklin stated.
This uncertainty about the accuracy of Franklin’s estimate of the time does not suffice to cause me to doubt the general description of work as he gave it. It may be that over the passage of time and coloured by the recollection that it was a painful and arduous task, Franklin has attributed to the exercise a longer period than in fact was involved. However, I accept that the exercise he undertook was heavy, awkward and carried out over a significant proportion of the time between 9.30 am and 12.30 pm on each of the two days. Franklin did concede that Kelly was complaining that the activity was taking far too long suggesting either that the activity was more arduous than Kelly appreciated, or that Franklin’s physical condition was deteriorating, or both.
In the result I find that the system of work engaged in by the crew in which Franklin worked was as he has described it. This is both in respect of the system generally, and, apart from the relatively minor qualifications I have given, the system of work at 1 Collins Street in August 2003. As there was no real dispute about the equipment actually used, I accept Franklin’s evidence about it. On the issue of instruction and supervision, the evidence establishes that it was relatively scant for the service crew amounting, at its highest, to general cautions given by Kelly and Fraser from time to time requiring the worker to assess whether something was too heavy or unsafe and then to request assistance or simply not do it. There was no evidence of the performance of any risk assessment having been undertaken by Kone in relation to the service crew’s activities.
The real question is whether evidence of that system of work establishes negligence or breach of statutory duty on the part of Kone. In my opinion it does establish such negligence or breach of statutory duty, for the following reasons.
Negligence or breach of duty
Principles
At common law an employer owes a non-delegable duty[38] to take reasonable care, and to ensure reasonable care is taken, for the safety of employees by providing proper and adequate means of carrying out work without unnecessary risk,[39] including:
•To provide a safe system of work,[40] including to establish, maintain and enforce such a safe system. [41]
•To provide a safe place of work.
•To provide safe plant and equipment.
•To provide directions in the performance of work where such directions might reasonably be required to avoid injury.[42]
•To provide adequate supervision to ensure the safe system of work is carried out.
[38]Kondis v State Transport Authority (1984) 154 CLR 672.
[39]Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25; Commissioner for Railways (New South Wales) v O’Brien (1958) 100 CLR 211, 216-217; O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, 229; Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, 873; Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424, 439-440; 426.
[40]Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424, 447-449.
[41]McLean v Tedman (1984) 155 CLR 306, 313.
[42]O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, 229.
The content of the common law duty is succinctly set out by the High Court in Czatyarko v Edith Cowan University[43] as follows:
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work [citations omitted].
[43](2005) 214 ALR 349, [12].
The duty is personal and non-delegable which means that it is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. That is because the duty is to ensure that reasonable care be taken, whether by the employer itself, its employees or its independent contractors, for the safety of its insured employee.[44]
[44]Leighton Contractors v Fox (2009) 258 ALR 673, [21].
The breaches of statutory duty are alleged to be constituted by breach of Regulations 12, 13, 14 and 15 of the Manual Handling Regulations. Those Regulations, made pursuant to s 59 of the Occupational Health and Safety Act 1985(Vic) which authorised the making of Regulations with respect to the “safety, health and welfare of persons at work places”, had the stated objective to “reduce the number and severity of musculoskeletal disorders associated with tasks involving manual handling”.
“Manual Handling” was defined in the Regulations to mean:
Any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain in the object.
“Hazardous Manual Handling” was more particularly defined to mean, relevantly:
(a) Manual Handling having any of the following characteristics –
(i)repetitive or sustained application of force;
(ii)repetitive or sustained awkward posture;
(iii)repetitive or sustained movement;
(iv)application of high force[45] …
[45]A phrase separately defined in Regulation 5 to encompass the use of force that most persons in the workforce would have difficulty in undertaking.
The Regulations alleged to have been breached imposed the following duties on employers to workers engaged in manual handling, and hazardous manual handling:
•employer to consult health and safety representatives in certain circumstances (Regulation 12).
•duty to employer to identify tasks involving hazardous manual handling (Regulation 13).
•duty of employer to undertake risk assessment (Regulation 14).
•duty of employer to carry out risk control (Regulation 15).
In general terms, in the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others involves a correlative private right which grounds civil liability when breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.[46]
[46]O’Connor v SP Bray Ltd (1936) 56 CLR 464; Byrne v Australia n Airlines Limited (1995) 185 CLR 410, 424; McCallion v UR Machinery Sales Pty Ltd [1999] VSC 543, [25].
It has been held in a number of cases that the Manual Handling Regulations confers such a private right of action.[47] Notwithstanding Kone’s pleaded position that no such private right of action exists, in argument Dr Wilson SC who, with Mr Hangay, appeared on its behalf, conceded (in my view, correctly) the position as taken in previous cases that such a right of action was conferred by the statutory provisions.
[47]Eg. Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458; Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436; Papadopoulos v MC Labour & Anor (Ruling No 1) [2009] VSC 175. But see also n 3 above.
Does the evidence establish negligence?
Kone denied that the injuries which Franklin sustained were reasonably foreseeable as a consequence of the system of work engaged in by its service crew. The submissions made on behalf of Kone suggested that it was incumbent upon the plaintiff to adduce evidence that Kone subjectively knew of the risk of injury before it was obliged to either assess it or to take measures to ameliorate it. If that was the effect of the submission, in my view it is not correct.
In determining whether there has been a breach of duty a court applies the test laid down in Wyong Shire Council v Shirt[48] by Mason J as applicable in an industrial setting:
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone[1951] UKHL 2; (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[48](1980) 146 CLR 40, 47-48.
The test plainly is an objective test as to whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff.
In my view it is hardly deniable that a reasonable person in Kone’s position would have foreseen that the system of work engaged in by members of the service crew involving, as it did, very heavy manual work, carried out in awkward postures, engaged in over a lengthy period of time and involving repetitive manual handling operations, would involve risk of musculoskeletal injury to those engaged in that kind of work. In my view the risk is relatively self-evident. Apart from the nature of the activities themselves, the fact that there existed regulations such as the Manual Handling Regulations (made in 1999) which, I accept, were well known in the industry by 2003, provides some confidence that a reasonable person in Kone’s position would have known of the existence of the risk of musculoskeletal injury to those engaged in manual handling of heavy objects over a long period of time.
Whether Kone did or did not actually appreciate the risk does not answer the question. In the circumstances of this case, if Kone did not appreciate the risk then that may very well be explained by the fact that it undertook no risk assessment in connection with the duties its service crew was undertaking. Quite apart from the fact that the test is objective rather than subjective, an employer simply cannot rely upon ignorance borne of its own failure to make appropriate risk assessments.
As Mason J demonstrates in the passage from Wyong Shire Council above, if the answer to the first question is that a reasonable person would have foreseen the risk of injury, the next question is what a reasonable man would do by way of response. In this regard Kone argued, in respect of a number of the tasks which the service crew typically undertook, that there was no evidence of the existence of a better system of work that was practical to adopt. Several times it was asked, rhetorically: how could it have been done better? Furthermore it argued that its system conformed to industry practice.
I accept that in examining an alternative response to the risk one must consider measures that are practical; the response must be evaluated in the context of the perceived risk as it existed prior to the subject injury; one must be open to the possibility that a reasonable response may have been to have taken no additional steps; and evidence of current industry practice may be of significance.[49]
[49]Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436, [59]-[61].
There was evidence of alternative steps that Kone could have undertaken which would have been practical, neither difficult nor inconvenient to introduce, and not likely to involve prohibitive expense – certainly, there was no evidence that such steps would involve prohibitive expense. That evidence was given by Mr Hennessy, a professional ergonomist who has worked for the past thirty years in many workplaces in relation to ergonomics and manual handling. I accept that he had relevant expertise to give an opinion as to alternative measures of performing work which may reduce strain on the musculoskeletal system and thereby reduce risk of injury. Much of the evidence he gave seemed to me to amount to common sense.
Mr Hennessy offered the following as measures which, if taken, would likely have reduced the risk of injury of the kind suffered by Franklin:
•Reduce the forces required to move various objects – for example, reducing the weight of the objects, choosing lighter components and tools, the use of levers, trolleys and self-lifting cranes, dividing a load into smaller component parts, etc.
•Removing the need to lift items at all, where possible.
•Providing more manual assistance with the tasks – that is ensuring sufficient personnel was at hand when assistance was required.
•Using better designed trolleys with larger pneumatic wheels, better clearance from the floor and a better designed handle.
•Avoiding hazardous or extreme postures, particularly bending over and extended reach.
•In relation to the drawing up of the flex on to the top of the lift car - avoiding the frictional resistance of the cable wherever it touched the lift car and reducing the weight of the free hanging part of the cable – for example using motorised pulleys or having another person to assist in the drawing of the cable on to the lift and the process of inserting the cable into the duct work.
•In relation to lifting of test weights on to the top of the lift car - avoiding the forward reaching movement over the top of the door motor which was the most hazardous part of the job.
•In relation to the lifting of chain blocks above shoulder height to place them on a sling - using a self-elevating lifting device to avoid the heavy overhead lifting-movement.
I am satisfied by the evidence that, each of these steps, if taken, would have materially reduced the risk of injury to Franklin such that Franklin would probably not have suffered the injury that he suffered. The question, then, is whether such steps represent steps that a reasonable man would have taken, such that failure to do so constitutes negligence.
I consider briefly the factors enumerated by Mason J in Wyong Shire Council namely: the magnitude of the risk; the degree of the probability of its occurrence; the expense, difficulty and inconvenience of alleviating action, and any other conflicting responsibilities which the defendant may have.
In my view the magnitude of risk of a musculoskeletal injury to a manual-work employee is self-evidently high. It is notorious that persons engaged in physical work who sustain a back injury can be deprived of work capacity, or at the very least severely restricted in undertaking their remunerative employment, and can otherwise sustain significant loss of enjoyment of life. The consequence for such a worker is very grave indeed.
I am satisfied from the evidence of Mr Hennessy, but also from the evidence given by Mr Roy Carey, Franklin’s treating orthopaedic surgeon, that the injury to Mr Franklin’s back was not only the result of the work described, but was also an injury of the kind which was attended by a prominent degree of likelihood if the work was not performed in a manner designed to avoid risk of injury. It could certainly not have been described as a risk which was far fetched or fanciful but, rather, a risk that was real.
I do not consider there was untoward expense, difficulty or inconvenience in taking the kinds of alleviating measures which Mr Hennessy proposed. Nor did the measures appear to be impractical to introduce. There certainly was no evidence from Kone to the effect that such measures were not practical, or were prohibitively expensive or inconvenient. Indeed there was a body of evidence to the effect that the new elevator crew had plant and equipment which were a significant improvement on those which the service crew used in terms of reducing the lifting loads and avoiding awkward manual handling movement. In the end, however, I do not need to rely on that evidence to accept that there were potential practical measures which could have been deployed to reduce the risk of injury to Franklin.
Finally, far from there being other conflicting responsibilities which Kone may have had to those which it owed to Franklin, the duties all seem rather one way.
Accordingly, in my view, Kone’s system of work was deficient in various respects and was such that it breached its duty of care to Franklin. It was not reasonable for Kone to have failed to undertake any risk assessment of the manual handling aspects of the service crew’s activities. Nor was it reasonable to require its workers to undertake lifting and manual handling of the flex, ropes, test weights, sheaves and chain blocks, of the weights stated, in such repetitious fashion, without superior manual and mechanical assistance than was in fact provided.
A consideration of its supervision of and direction given to Franklin (and other members of the crew) leads to a similar conclusion. It too was deficient and fell short of the standard of care which it was obliged to give. There was inadequate monitoring of the way in which the workers were undertaking their task and too ready acceptance that the ‘old way’ was the ‘best way’ without any conscious analysis of the risk to which its workers were being exposed. It was unreasonable simply to leave it to the worker to identify a weight that was too heavy, or an activity that was unsafe. That was particularly the case where, as here, the danger lay largely in repetition rather than a single episode of activity.
Does the evidence establish breach of statutory duty?
Franklin also relied upon a breach of the Manual Handling Regulations as a separate cause of action. I find that much of the work in which Franklin was engaged was “hazardous manual handling” within the meaning of Regulation 13, that is, it was manual handling which had characteristics of repetitive or sustained application of force, repetitive or sustained awkward posture, repetitive or sustained movement and application of high force. Not only was an employer required to determine whether there was any risk of a musculoskeletal disorder to an employee as the result of a task involving hazardous manual handling (Regulation 14) but an employer must also ensure that any risk of musculoskeletal disorder affecting an employee is either eliminated or, if it is not practicable to eliminate the risk, reduced as far as practicable (Regulation 15).
In my view, and for the same reasons as already mentioned, Kone’s conduct fell a good deal short of ensuring that the risk of musculoskeletal disorder from the type of work in which Franklin was engaged was either eliminated or reduced as far as practicable.
For these reasons I also find that Kone’s conduct was in breach of the Manual Handling Regulations.
Did the negligence or breach cause the injury?
There was little, if any, real debate as to whether the physical work in which Franklin was engaged was a cause of the injury which he sustained to his back. It was faintly argued that an earlier motor cycle accident might have been the cause or a cause of his back injury but there was little substance to that argument and I do not consider it warrants further discussion.
Whilst it is true that Franklin suffered from an underlying lumbosacral spondylolisthesis, it was Mr Carey’s opinion that the work was nevertheless a significant contributing factor to his injury. There was no dispute that a person with an underlying lumbosacral spondylolisthesis may live with that condition without any significant disability their entire working life.
The medical and ergonomic opinion was consistent as to the relationship between the kind of work undertaken by Franklin, the forces to which his back would thereby have been exposed, and the probable mechanics of his disc herniation at the level of the spondylolisthesis.
Having regard to that opinion, and that (as I have concluded) Franklin would probably have not suffered the injury he in fact suffered if Kone had taken the steps it should have taken to eliminate or reduce the risk of such injury, I find that Kone’s negligent failure to take those steps was a cause of the disc herniation, his spinal fusion and his work incapacity, pain and loss of enjoyment of life. I will return to the extent of that work incapacity shortly.
Contributory negligence
In two cases the Court of Appeal has recently set out the principles relevant to determining whether a finding may be made of contributory negligence on the part of a plaintiff.[50] In both, reference was made to the oft-quoted passage from the High Court’s decision in Podreberserk v Australian Iron and Steel Pty Ltd:[51]
It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence.
[50]Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Fassbender v Bohlmann [2010] VSCA 204
[51](1985) 59 ALJR 492,493
Two things are important to note: first, that the circumstances in which Franklin had to do his work must be taken into account. Secondly, in the context of personal injury in the course of employment cases, there is a distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other.
Kone alleged a long list of particulars of contributory negligence on the part of Franklin. Without setting out every one of them in detail I summarise them as follows:
(a)Failing to comply with the defendant’s system of work;
(b)Failing to seek any assistance in the circumstances;
(c)Failing to obtain and use available mechanical or manual assistance;
(d)Failing to inform his superiors that he knew or believed the place of work, or system of work was unsafe;
(e)Failing to seek instruction, supervision or other plant of equipment if he thought they were required;
(f)If he thought his duties were too heavy, awkward or repetitive, or in excess of his physical capacity, failing to report that fact, continuing with those duties and failing to seek other duties;
(g)If his duties were causing him pain, failing to report that fact, failing to seek appropriate treatment, failing to seek alternative duties and continuing with the same duties.
It will be recalled that both Fraser and Kelly gave some evidence about their instruction to Franklin and other members of the crew with respect to what they should do if they thought their tasks were too onerous. As I have said earlier, my overwhelming impression was there was little if any instruction given to crews about how they go about the task of lifting and moving pieces of equipment, and it seemed basically to be left to the individual to decide what seemed appropriate, and to request assistance if assistance was thought necessary.
There was, however, a measure of complaint made by Franklin about the work conditions which were not acted upon by Kone. Perhaps that was because Kone did not appreciate the seriousness with which Franklin put forward such complaints, or perhaps because there was something of a culture of “get on with it” amongst the older members of the crew as well as management. In such a culture Franklin himself had a natural and understandable concern about pressing his complaints too hard, either because it may jeopardise his work or for fear of being seen to be a complainer in the team.
In those circumstances I do not consider that his failure to seek more assistance than he did could amount to any failure to observe an instruction or to comply with Kone’s system of work – nor do I view it as being inconsistent with the conduct of a reasonably prudent employee. Indeed, at all relevant times he was carrying out his duties the way he was required to carry them out.
Kone relied most forcefully upon Franklin’s persistence with undertaking his work duties after he had experienced some symptoms of pain. This was put as a negligent failure to take care of his own physical well-being. The evidence was that he had first encountered some pain early in 2003, and then again early in August 2003, but on neither occasion had he sought any medical attention but thought his aches and pains would resolve, which they appeared to do. On the first day at 1 Collins St he also experienced some aches and pain in his back but managed to get through.
Much reliance was placed by Kone on Franklin’s explanation, in cross-examination, for persisting in the face of this kind of pain or discomfort with arduous activities. He agreed that he had not stopped to ask for help when he was experiencing difficulty, saying, “…I did not stop and ask for help, through probably pride, pigheadedness…”. Criticism is made of Franklin that he did not speak up and did not seek help when, had he done so, the situation would most likely have changed.
I have a number of difficulties with that proposition. First, until the “explosion” sensation which occurred on 22 August 2003 I am satisfied that the aches, pains and symptoms which he was experiencing were not such as to alert him to the danger which lay ahead such that he should have taken it upon himself to take more proactive steps of seeking alternative duties, etc. Despite his somewhat guileless explanation for his persistence, I do not consider him to be the type of person who would consciously or carelessly put himself in danger. Secondly, Franklin had (as I have accepted) voiced complaints in the past which had not been heeded, so not only was he not, in reality, encouraged to speak up, but I am not satisfied that had he done so anything material would have changed. I take each of these matters to be relevant conditions or circumstances in which he had to work for the purposes of assessing whether his conduct amounted to a failure to take reasonable care for his own safety.
Furthermore, it is relevant that Franklin’s injury was probably the cumulative product of repetitious heavy work over a long period. It could not be attributed to a single incident of him undertaking a task that was obviously dangerous or unsafe or too onerous. To the extent that some danger might have been apparent to him any inattention to such danger was, in my view, the kind of inattention that is understandably borne of familiarity and repetition, and preoccupation with the matter at hand.[52]
[52]Cf Commisioner of Railways v Ruprecht (1979) 142 CLR 563, 568 ( Gibbs J)
Finally, Franklin did not conduct his work activities in secret, rather they were performed in the full view of Kelly, his crew supervisor, and were in accordance with the system of work required by Kone. The absence of any “self-direction” by him as to how his task ought to be done is no basis for contending contributory negligence. His conduct meets the description of what Dixon J said in Davies v Adelaide Chemical & Fertiliser Co Ltd:[53]
At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and long standing practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work.
[53](1946) 74 CLR 541, 551-2.
Relying upon that passage Ashley J said in Kulczycki v Metalex Pty Ltd:[54]
… where the alleged contributory negligence consists of doing that which the employer’s system of work requires, there is no room for a finding of contributory negligence.
In substance that is what Kone’s allegation essentially boils down to – an allegation that Franklin continued to do what Kone’s system of work required, seemingly casting upon him an onus to determine when assistance was required, or say when practices were unsafe, or suggest that more supervision or instruction was needed, etc.
[54][1995] 2 VR 377, 409. Justice Ashley was in dissent but the principle there outlined has been followed in a number of Victorian authorities, Shirreff v Elazac Pty Ltd [2010] VSC 381; Mayhew v Lewington's Transport Pty Ltd [2010] VSCA 202; Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd [1981] VR 421; McCallion v UR Machinery Sales Pty Ltd [1999] VSC 543.
In my view Kone has failed to discharge its onus to establish contributory negligence on the part of Franklin.
Having determined that Kone was negligent and breached its statutory duty, and that such negligence and breach was a cause of Franklin’s injury, I turn to the question of damages.
Damages
Effect of injury on work capacity
There was no serious challenge to the proposition that, since his injury, Franklin has been, and continues to be, incapable of performing any remunerative work. Mr Clive Jones, the orthopaedic surgeon who provided a medico-legal opinion to Kone,[55] expressed the view on 7 July 2010 that, at that point in time, Franklin had no current ability to participate in job seeking or re-training. He thought Franklin unable to undertake any of the employment options which had been identified by Racouvre, a human resources consultant, as potential options.
[55]Exhibit 2, report of Mr Clive Jones 7 July 2010.
Likewise Dr Wui, his treating general practitioner, considered him to be totally incapacitated due to the level of pain he was having and his inability to move around freely. He did not think he was suitable for any type of employment.[56] Mr Rodney Simm, another orthopaedic surgeon who provided medico-legal opinion for Franklin on 8 April 2009, having examined Franklin on 7 April 2009, expressed the view that Franklin could not obtain meaningful regular gainful employment in any of the occupations which had been suggested by Racouvre.[57] Mr Simm re-examined Franklin on 7 July 2010 to update his assessment in which he confirmed that the restrictions identified in his previous report still applied and that he thought they were likely to be permanent.
[56]Transcript 379.
[57]Exhibit 9, report of Mr Rodney Simm 8 April 2009.
The only submission made on behalf of Kone was that I should find Franklin was capable of working 15 to 20 hours per week. This submission evidently emanated from the following paragraph in Mr Simm’s report of 8 April 2009:
I would expect your client to be able to work for about 2 to 3 hours per day undertaking light non-physical work which provides flexibility with static postures. Pain is unpredictable and apparently there are days when he has to lie down for most of the day. On these days he may not be able to even perform 2 to 3 hours of light work. Considering his past work experience and his physical limitations, I do not believe there is a particular job for this man that would enable him to work 2 to 3 hours per day and to observe the physical constraint suggested.[58]
Only a little further down on the same page appeared Mr Simm’s statement, which I have already noted, to the effect that he did not believe Franklin capable of gaining employment in any of the potential occupations which had been suggested.
[58]Exhibit 9, report of Mr Rodney Simm 8 April 2009, page 244.
Dr Murray Taverner, a specialist in pain management, also expressed the view in a report dated 24 October 2010[59] that Franklin had no current work capacity and that his fluctuating pain levels and lowered mood were likely to impact adversely on his ability to re-train.
[59]Exhibit F.
I had the opportunity myself to observe Franklin in the witness box. He was clearly in substantial discomfort and pain and needed frequent rests in the giving of his evidence. He regularly had to change his position and posture to obtain relief. My observations of him were consistent with the picture presented in all of the medical reports.
The suggestion that he has been and continues to be capable of 15 – 20 hours remunerative work per week emanates from a passage in one medico-legal report, taken out of context, is contradicted by its author’s ultimate conclusion, and finds no support in any of the other evidence. In these circumstances I am satisfied on the evidence that he has no current capacity to obtain any remunerative employment. Further, I am of the view that such incapacity is permanent.
Past economic loss
Putting aside Kone’s submission that I should make allowance for a capacity to work 15 to 20 hours per week (which I reject) the parties were able to agree on the quantification of past loss of wages, superannuation and Fox v Wood component. They were, respectively:
• Past loss of wages (to 29 November 2010) $320,677 • Past loss of superannuation $40,000 • Fox v Wood component $60,730 $420,677
In relation to future loss of wages the parties were able to agree on a calculation assuming the following: that Franklin continues to work in his pre-injury role as a maintenance fitter, the current entitlement being $1,011 net per week; that he works to age 65 (which I consider to be the appropriate assumption), with the relevant multiplier to age 65 being 647. On those assumptions the resultant sum was $654,117.
To that should be added an allowance for future loss of superannuation contributions calculated at 9 percent on current gross earnings ($1,282 per week), being $115.38, again multiplied by the multiplier to age 65 (647), arriving at $74,651. Again, the arithmetic for that sum was agreed.
The parties were also in agreement that an appropriate allowance to be made for the contingencies and vicissitudes of life was by way of a discount of 15% from each of those sums, resulting in this calculation:
· Future loss of wages (to age 65) $654,117 · Future loss of superannuation $74,651 $728,768 · Discounted by 15% $619,453
On behalf of Franklin I was urged to allow an additional component of damages for the prospect that Franklin might have been promoted to a supervisory or managerial position within Kone. Certainly Franklin himself expressed some interest in such promotion. Nevertheless, the evidence did not really allow me to make any confident assessment on the likelihood of that occurring. Both Kelly and Fraser were themselves long standing employees who rose to supervisory and managerial roles. Account would need to be taken of the prospects of other employees working for the organisation, such as Pollard and Senn and of their likely prospects ahead of someone like Franklin for promotion. In the end it is simply too speculative to assign damages for that component. To the extent that there may be some doubt that Franklin might have worked to age 65, or the prospect that he might even now get back to some work in the future (against the preponderance of medical opinion), it does not seem unfair to me to disallow Franklin the prospect of promotion when no allowance has been made for such other contingencies.
Considering all of the circumstances, I hold the view that the sums as agreed, arithmetically, by the parties for pecuniary loss also collectively constitute fair and reasonable compensation for such loss. Thus, I allow for past and future economic loss the following amount:
· Past economic loss (rounded)
$420,600
· Future economic loss (rounded)
$619,400
$1,040,000
General damages
The picture which the evidence paints of Mr Franklin may fairly be summarised as follows. He is now aged 43 and the incident occurred when he was 35 years of age.
Since his injury he has had considerable difficulty coping with his pain. When he first saw Mr Carey, his surgeon, in 2003 he was already requiring Endone medication on a daily basis. He has required treatment in the form of a nerve root block, lumbar discogram and surgery by way of L 5-S 1 fusion with internal fixation. Since the operation there has been some uncertainty whether the spinal fusion was stable. Although his treating surgeon was of the view it was stable, Mr Jones had some doubt whether it was sound and solid, stating in evidence that he thought such doubt persisted “to this day”.[60]
[60]Transcript 387.
Franklin has required increasing amounts of narcotic medication until the point where he was put onto methadone. He currently requires daily medication in the form of Tramal (up to 400 mg), Mobic, Tegratol, Norflex, Valium, Panadeine Forte (to top up), Endep and occasional Temazepam and Somac for stomach complaints.
He continues to suffer residual symptoms of pain in the back and legs, numbness and tingling into the legs, urinary dysfunction, stomach dysfunction and occasional bowel dysfunction as a result of the ingestion of medication.
He has restrictions on his ability to sit, stand, bend and twist, and is required to lie down for a part of every day. He is unable to participate in any of the activities that he performed prior to injury including riding horses, attending the gym and riding motor cycles. He has been and remains severely restricted in engaging in activities with his children and step-children.
The overall picture is a gloomy one of a man beset by injury in his relative youth which injury has substantially robbed him of his working life, social and family life and has left him in constant pain. The probabilities are that he will endure such pain, suffering and loss of amenity indefinitely.
The parties each put to me the figure that they considered an appropriate amount to allow for this head of damage. The defendant submitted it should be $175,000; the plaintiff submitted it should be $320,000. In my view a fair and reasonable award of compensation for the plaintiff’s pain and suffering, and loss of amenity of life – past, present and future – is very much toward the upper end of the spectrum represented by those two submissions. I assess damages for pain and suffering at $315,000.
Conclusion
In conclusion I find that the defendant was negligent and in breach of its statutory duty, that such negligence and breach caused Franklin’s injury, and that Franklin is entitled to damages in the sum of $1,355,000.
I will hear the parties on consequential orders.
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