Franna Cranes Pty Ltd v Turkington
[2004] WASCA 187
•19 AUGUST 2004
FRANNA CRANES PTY LTD -v- TURKINGTON & ANOR [2004] WASCA 187
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 187 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:50/2003 | 6 MAY 2004 | |
| Coram: | MURRAY J STEYTLER J MCLURE J | 19/08/04 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against liability dismissed, Appeal against apportionment upheld, Notice of contention upheld | ||
| B | |||
| PDF Version |
| Parties: | FRANNA CRANES PTY LTD GILBERT LEON TURKINGTON JOHN HOLLAND CONSTRUCTION AND ENGINEERING PTY LTD |
Catchwords: | Tort Personal injuries Whether factual findings on liability open on the evidence Whether manufacturer liable only for hidden defects Whether error in apportionment of liability |
Legislation: | Nil |
Case References: | Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272 Carr v Baker (1936) 36 SR (NSW) 301 Coles & Ors v Montague Grant Architects & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995 Fox v Percy (2003) 214 CLR 118 Jones v Dunkle (1959) 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Martin v Stratman (1994) A Tort Rep 81-262 Martin v Thorn Lighting Industries Pty Ltd [1978] WAR 10 Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201 Nominal Defendant v Owens (1978) 22 ALR 128 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sousaari v Steinhardt [1989] 2 Qd R 477 Surf Coast Shire Council v Webb [2003] VSCA 162 Todman v Victa [1982] VR 849 Vozza v Tooth and Co Ltd (1964) 112 CLR 316 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FRANNA CRANES PTY LTD -v- TURKINGTON & ANOR [2004] WASCA 187 CORAM : MURRAY J
- STEYTLER J
MCLURE J
- Appellant
AND
GILBERT LEON TURKINGTON
First Respondent
JOHN HOLLAND CONSTRUCTION AND ENGINEERING PTY LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : VIOL DCJ
Citation Number : [2003] WADC 12
File Number : CIV 3618 of 1999
(Page 2)
Catchwords:
Tort - Personal injuries - Whether factual findings on liability open on the evidence - Whether manufacturer liable only for hidden defects - Whether error in apportionment of liability
Legislation:
Nil
Result:
Appeal against liability dismissed
Appeal against apportionment upheld
Notice of contention upheld
Category: B
Representation:
Counsel:
Appellant : Mr P B O'Neal
First Respondent : No appearance
Second Respondent : Mr P E Jarman
Solicitors:
Appellant : Downings Legal
First Respondent : No appearance
Second Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272
(Page 3)
Case(s) also cited:
Carr v Baker (1936) 36 SR (NSW) 301
Coles & Ors v Montague Grant Architects & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995
Fox v Percy (2003) 214 CLR 118
Jones v Dunkle (1959) 101 CLR 298
Luxton v Vines (1952) 85 CLR 352
Martin v Stratman (1994) A Tort Rep 81-262
Martin v Thorn Lighting Industries Pty Ltd [1978] WAR 10
Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201
Nominal Defendant v Owens (1978) 22 ALR 128
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Sousaari v Steinhardt [1989] 2 Qd R 477
Surf Coast Shire Council v Webb [2003] VSCA 162
Todman v Victa [1982] VR 849
Vozza v Tooth and Co Ltd (1964) 112 CLR 316
(Page 4)
1 MURRAY J: I agree with McLure J that, for the reasons given by her Honour, to which I have nothing to add, the appeal should be allowed to the extent necessary to vary the order of the trial Judge for the apportionment of liability as between the appellant and the second respondent.
2 I too consider that the appropriate order would be one attributing 60 per cent of the responsibility for the damage suffered by the first respondent to the appellant and 40 per cent to the second respondent.
3 STEYTLER J: I have had the advantage of reading the judgment of McLure J. I agree with it and with her Honour's conclusion that grounds 1 to 7 of the grounds of appeal should be dismissed but that the appeal against the apportionment of liability should be upheld, so as to substitute for the finding of the trial Judge in that regard a finding that the appellant should be held 60 per cent responsible for the accident and the second respondent 40 per cent responsible.
4 MCLURE J: This is an appeal from the decision of Viol DCJ who found the appellant (second defendant/third party) liable in negligence for personal injuries suffered by the first respondent (plaintiff) arising out of the use of a crane manufactured by the appellant and on hire to the plaintiff's employer, the second respondent (first defendant).
5 Alternatively, the appellant appeals from the learned trial Judge's apportionment of liability of 80 per cent to the appellant and 20 per cent to the second respondent, John Holland Construction and Engineering Pty Ltd ("John Holland").
6 The plaintiff was served with the appeal papers but did not appear and indicated his intention to abide the Court's decision.
Background facts
7 The plaintiff was employed by John Holland as a crane operator. Up to and at the time of the accident, which occurred on 17 September 1998, the plaintiff was, in the course of his employment, operating a Franna 18 tonne crane ("crane"). The crane was manufactured by the appellant, owned by Statewest Crane Hire (a business owned by Mr E Carvalho) and hired to John Holland for use at one of its Port Hedland projects. Mr Carvalho purchased the crane from the appellant. It was manufactured by the appellant to fill Mr Carvalho's order and was delivered to John
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- Holland's Port Hedland site in about July 1997. The plaintiff had been operating the crane for about two months prior to the accident.
8 On 17 September 1998 the plaintiff suffered a significant back injury incurred in the course of opening the bonnet of the crane for the purpose of conducting a standard pre-start check of the engine. It was not in dispute that the plaintiff experienced what he described as "tightness" in opening the bonnet. The central issue in dispute was the nature and cause of the tightness.
9 The crane is a "pick and carry" mobile crane with the lifting component at the front of the vehicle and the engine at the rear. Behind the crane operator's cab is a platform. Down the centre of the platform is the engine which is covered by the engine bonnet of the crane which is in continuity with what is termed the mid bonnet. The third component is the front cowl which is in continuity with the mid bonnet. The top of the mid bonnet is fixed. The witnesses used the terms cowl and mid bonnet interchangeably. The engine bonnet ("bonnet") pivots on hinges at the rear of the platform and is locked in position by a "T" shaped handle on its top face at the end closest to the mid bonnet. The bonnet is approximately 1,260 mm long, 490 mm high at the front and 615 mm high at the rear. The cross-section of the front part of the bonnet is trapezoid shaped, being approximately 801 mm wide at the top and 998 mm wide at the base.
10 In 1993 the appellant tested and redesigned its bonnets to include a gas strut to reduce the lifting effort required in opening the bonnet to within occupational health and safety guidelines. A gas strut was installed at the bottom rear corner of the engine compartment of the crane. After the bonnet was lifted approximately 32° above the horizontal, it was in equilibrium and stayed in that position.
11 After the plaintiff's accident, John Holland installed a second handle which it placed on the left side of the bonnet and the appellant redesigned its bonnets to include a handle on the right side of the bonnet.
12 The trial Judge made a number of factual findings relating to the bonnet and its design. They included that the bonnet was very heavy (the evidence was it weighed 93 kilograms); with one handle and the position required to be used when lifting, it was very difficult for a person of normal size and strength to lift the bonnet; the bonnet had a tendency to bend when lifted with the result there was a jamming (or "pincer") effect causing the bonnet to grip its metal seating; considerable force, at least 17 kilograms and most probably 23 kilograms, was needed to lift the bonnet; the lack of lifting assistance (by providing stronger and/or more
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- gas struts) contributed to the difficulty in lifting; and the provision of a second handle after the accident assisted the problem but its necessity should have been obvious to the appellant before the accident. The trial Judge concluded that the design of the bonnet was defective. He said:
"It is my view that the [appellant] failed in its duty to keep inherent dangers in the bonnet and the lifting thereof to a minimum. There is room in the evidence, particularly that of [the appellant's design engineer] ... Mr Black, to conclude that after the accident, the manufacturer realised that the bonnet and its lifting mechanism was defective and that this was the cause of the plaintiff's injury and required making good by further design and manufacture. In my view, the problems facing the plaintiff in the lifting of the bonnet should have been obvious to the manufacturer at the time of manufacture.
...
...
In the present case, the design of the bonnet was defective and caused the bonnet to jam. The plaintiff was required to use a force and a postural position which was dangerous and likely to cause injury in the circumstances as a result of the design of the bonnet and the failure of the manufacturer to provide methods by which the weight of the bonnet could be lifted properly and safely."
14 On the issue of liability, the appellant contends that the following findings made by the trial Judge were against the evidence or the weight of the evidence:
(1) the pincer effect caused the difficulty in the plaintiff opening the bonnet of the crane at the time he sustained his injury (ground 1);
(2) when the plaintiff went to lift the bonnet it "effectively jammed" (ground 2);
(3) the plaintiff was required to use a force in a postural position which was dangerous and likely to cause injury (ground 3 as formulated in submissions);
(Page 7)
- (4) within Mr Butcher's evidence there was room for a finding that bonnets may become distorted to such an extent that catching may occur in lifting and normal use (ground 5);
(5) the appellant had failed to meet the standard of care of a reasonable designer and manufacturer (ground 7).
- The appellant also contends that the trial Judge was wrong in law and in fact in holding that:
(6) the difficulty in lifting the bonnet was a hidden manufacturing defect (ground 4);
(7) the addition of a second handle by the appellant was in effect an admission that the bonnets of the appellant's cranes were subject to a pincer effect (ground 6).
15 The appellant contends, in substance, that the trial Judge's findings of the pincer effect and jamming are contrary to the plaintiff's description of the malfunction which resulted in his injuries and further, if that was the cause of the malfunction, the problem would have been chronic and resulted in complaints about the crane from John Holland workers.
16 The plaintiff's evidence was that he had been driving the crane for approximately two to three months before the accident. His evidence as to the events in question is short and reflected in the following exchange in his evidence-in-chief:
" ... I directed you to 17 September 1998. What do you recall about lifting the bonnet on that day? Was there anything out of the ordinary? --- Yes, it was tight.
...
...
What stage of it was tight? When did it --- ? --- I turned the handle when I lifted it first. It was tight then.
As you were turning the handle --- ? --- One turn and up. It was tight.
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- As I understand, what you're saying is that it wasn't tight to turn the handle? --- No, not to turn the handle, to lift it.
So it was tight to lift. What do you mean by 'tight'? Can you --- ? --- Well, I turned the handle which wasn't hard to turn and then when I pulled it up, that's where, you know - that's when it happened.
Were you able to lift it smoothly? --- Yes.
Was it tight continuously or only during parts of the lift? --- It was tight the whole way up.
What did that mean about the effort you used? Were you using your ordinary amount of effort to lift it?---No, I had to put a bit more power into it."
17 The plaintiff was asked about his previous experience with the crane as follows:
"This tightness you speak of would be the bonnet of the crane. Had you noticed that before that day, 17 September?---Yes, the day before and I put it in the log book."
18 The plaintiff was not asked any further questions in chief or in cross-examination about his prior experiences in lifting the bonnet of the crane.
19 The trial Judge describes the plaintiff as a person who did his best to give an honest account of events. The trial Judge also accepted that the site safety officer, Mr Sully, attempted to recall events as accurately and reliably as possible. On the day of the accident, Mr Sully saw the plaintiff who told him what had occurred. Mr Sully then tested the bonnet of the crane himself. His evidence was as follows:
" ... I went over there and attempted [to lift the bonnet] myself and found that there was a degree of difficulty in lifting the bonnet at that time. I consider myself reasonably strong and I actually found it difficult then, so I thought obviously there is a problem in that area ...
...
Now, going back to the original crane you inspected on 17 September 1998, at what point did you find it difficult to lift?
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- Was it before you turned the handle, after you turned the handle, when you were starting to lift it? --- Basically, you know, after I turned the handle and just trying to lift it from that, you know, the very beginning it was very difficult."
20 Mr Sully did not report the problem to John Holland because the plaintiff had noted it in the crane's logbook.
21 Mr Carvalho also gave evidence. The crane went off hire from John Holland in September 1998. Thereafter, it was operated by Mr Carvalho for approximately the following 18 months and he did daily checks on the crane which required him to open the bonnet. By the time the crane was returned to him, John Holland had placed the handle on the side of the bonnet. He said he used that handle to facilitate the opening of the bonnet. He was asked what happened if he did not use the handle provided by John Holland:
"What happens if you don't use that handle? --- The bonnet gets really a bit hard to lift.
Why does it get a bit hard --- Well I don't know sir. That's the way the crane is, you know.
Do you observe anything happening with the sides of the bonnet when you lift the crane using only the Franna handle? --- As I said, it's hard when you use only the Franna handle because the bonnet basically jams on the inner frame.
Can you tell us how does it jam? What happens? --- Just is probably not a jam but it's tight in there which makes the lifting a little harder to get with one hand.
How does the handle at the side help that? --- It helps tremendously. You know it's just - you can actually do the job in no time by using the handle on the side."
22 Apart from the addition of the handle, there had been no other repairs or modifications to the bonnet following the plaintiff's accident. Mr Carvalho thought there was no problem with the functioning of the crane's gas strut.
23 Mr Martin Simms, a consulting mechanical engineer, gave expert evidence for the plaintiff. Mr Simms inspected the crane at some time before the date of his first report (6 May 1999). Mr Simms referred in his
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- report to the tendency of the bonnet sides to "grip the cowl". He was asked what he observed in that regard and said:
"What I observed was that if you turned the handle and applied a continuous force, as one normally would opening and lifting such an appliance, the force of lifting the handle caused the upper surface of the bonnet to deform upwards and as a consequence of that the sides deformed inwards, gripped the sides of the in a pincer effect and it became virtually impossible to open the bonnet in a single clean motion."
25 Mr B Generowicz, a civil engineer, inspected the crane in East Timor in November 2000. His evidence was that when the bonnet cover was closed, it matched the seating perfectly and he did not notice any damage caused by mis-alignment of the bonnet. He said it was quite impossible to open the bonnet with the lockable lifting handle; the force needed to lift the bonnet was in excess of 23 kilograms and the bonnet could only be opened with the aid of the additional handle fitted to the left side of the bonnet. The trial Judge also accepted Mr Generowicz's evidence.
26 The appellant contends that the pincer effect as the cause of the plaintiff's injuries is inconsistent with the plaintiff's evidence that on the occasion on which he suffered the injury he was able to lift the bonnet smoothly and that it was "tight" throughout the lift. It is apparent from the design of the bonnet and the evidence describing the pincer effect that it should cease after the bonnet was free from the cowl.
27 However, Mr Sully's evidence of his experience in lifting the bonnet on the day the plaintiff was injured (" ... after I turned the handle and just
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- trying to lift it from that, you know, the very beginning it was very difficult") is consistent with the pincer effect observed by Mr Simms on his inspection of the crane and described by him in evidence. Mr Simms observed the top of the bonnet deform upwards. Further, as Mr Simms explained, the design of the bonnet provided for tolerances in the width of the bonnet at the top and base which allowed for the pincer effect if the top of the bonnet deformed upwards. The description given by Mr Carvalho and Mr Generowicz of their experience in lifting the bonnet of the crane is also consistent with the pincer effect. The appellant's proposition (that the plaintiff's description was inconsistent with the pincer effect) was not squarely put to Mr Simms or other relevant witnesses.
28 Based on his inspection of the crane, Mr Simms was able to exclude other potential causes of the difficulty in lifting the bonnet identified by Mr Chew such as, for example, misalignment or damage to the bonnet.
29 A range of terms were used by the witnesses in an attempt to communicate their experience in lifting the bonnet of the crane. Further, the nature of the experience varied according to the amount of force used at the initial lift. I understand the word "jamming" to be largely interchangeable with the other terms used by the witnesses such as grabbing, catching and tightness. The differences, if any, are likely to be of degree and reflect the level of force applied.
30 It is apparent from the plaintiff's evidence that he suffered the injury at the beginning of the lift. Whether his injury affected his perception of the balance of the lift or whether there were different degrees of tightness during the lift were not explored with the plaintiff. Whatever be the case, in my view there is no necessary inconsistency between the plaintiff's description of a smooth but tight lift and the descriptions of the problem given by the other witnesses. I am not satisfied that the plaintiff's description of the malfunction is inconsistent with a finding that it was caused by jamming (or grabbing, catching or tightness) resulting from the pincer effect.
31 The appellant also contends that if the pincer effect was the cause of the plaintiff's injuries, the problem would have been chronic and resulted in complaints from John Holland workers.
32 The plaintiff's evidence of his experience with the crane before the day prior to the accident is equivocal. The matter was not explored in cross-examination. No other person with experience in operating the
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- crane whilst it was on hire to John Holland was called as a witness. The maintenance records for the crane were not discovered or produced by John Holland and the trial Judge noted that no witness was able to give a satisfactory explanation for their absence. On this subject, the trial Judge said:
"I regard this aspect with considerable suspicion and tend to the view that the absence of such relevant record was not accidental, but resulted from an intention on the part of some person connected with [John Holland] to adversely affect the prosecution of the plaintiff's claim."
34 The appellant relies on the evidence of the site maintenance supervisor, Mr N Cass, that there were no complaints about the "ergonomic safety" of the Franna cranes. In context, this appears to be a reference to concerns expressed about the ergonomic adequacy of the seating in some cranes on site. In any event, even if there was a proven lack of complaints from workers about the crane, that is not determinative. The crane's owner, Mr Carvalho did not make a complaint. Even the site safety officer was content to rely on the plaintiff's record of the problem in the crane's log book.
35 I am satisfied that it was open to the trial Judge to find that the pincer effect and resulting jamming caused the plaintiff's injuries. I would dismiss the first two grounds of appeal.
Ground 3 - Postural Position
36 The bonnet was designed to be lifted with one hand. According to the appellant's expert, Dr Chew, it was possible for an operator to lift the bonnet safely if the operator adopted a particular posture although he acknowledged that this posture would not come instinctively to an operator and that instruction was required. There is no finding that instruction was provided by the appellant or John Holland. The posture advocated by Dr Chew was to have one foot on the platform of the crane, one foot on the mid bonnet with the operator's spine inclined approximately 10 to 20 degrees forward of the vertical axis and the lifting
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- hand held very close to the front of the body. If this posture was adopted there would be a low risk of spinal injury. However, if the lifting force was applied with one hand held well away from the front of the body or the spine was inclined at a larger angle there would be a real risk of such injury.
37 Mr Chew regarded the position he described as safer than having both feet on the cowl because it achieved better grip (or foot coupling). According to the plaintiff he had both feet on the mid bonnet or cowl and was down on his haunches with, he said, his back straight at the time of the lift.
38 Mr Simms' evidence was that there was a significant risk of suffering a back injury because of the "somewhat awkward location of the handle", the tendency of the bonnet sides to grip the cowl when the bonnet top flexed and the weight of the bonnet. By referring to the awkward location of the handle, he meant the position of the handle in the middle of the bonnet at the front which required the operator to adopt one of the two positions described by Mr Chew (both feet on the cowl or one foot on the cowl and one foot on the platform). He was asked whether both of those postures were equally awkward or one was more awkward than the other and he responded:
"In terms of awkwardness, the position that would be least awkward from a turning the handle and lifting it point of view would be squatting on the cowl, sitting - or standing and squatting on the cowl itself, that is, with both feet up on the cowl.
Yes?---The position that would probably be most stable and safest is with one foot on the deck and one foot on the cowl.
So when you say safe, what are you referring to?---Least likely to slip and fall or to be blown off if there was high winds or if the bonnet slipped over your hands, forcing you to step back - the position you're least likely to slip and fall from."
39 It is apparent that Mr Simms regarded both positions as awkward. The trial Judge found that the position required to be adopted by the plaintiff to lift the bonnet could be described as "awkward" in all the circumstances. He continued:
"I have already concluded, as Mr Simms opined, that a force of 23 kilograms was too great for the lifting of a bonnet, that
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- combined with the position adopted, made the operation and lifting ergonomically unsound, in my view. I am unable to accept Dr Chew's opinion on this aspect. In answers by Dr Chew in cross-examination, counsel for the plaintiff suggested that even Dr Chew had some misgivings about the lifting method required for the bonnet at the time of the accident."
40 It was clearly open on the evidence for the trial Judge to conclude that the design of the bonnet required operators to adopt an awkward posture which in combination with the force required to lift the bonnet was likely to cause injury. I would dismiss this ground of appeal.
Ground 4 - Hidden Defect
41 The trial Judge concluded that the design defect was hidden on the basis that the plaintiff was not qualified or trained to detect or determine "the cause of the problem and the nature of any defective manufacture". That is to focus on the wrong question. The correct question is whether the symptoms or effect of the design problem were apparent. The symptoms of the defect were manifest, as the trial Judge found. He concluded that the problems facing the plaintiff in lifting the bonnet should have been obvious to the manufacturer at the time of manufacture and the fact that the bonnet was jamming would have been evident by regular inspection of the bonnet by John Holland. The trial Judge erred in characterising the design defect as hidden. This error has consequences for the apportionment of liability as between the appellant and John Holland. However, it is not contended by the appellant that as a result of the trial Judge's error, the finding that the appellant was negligent could not stand. Such a contention would be unmeritorious. Whether a manufacturer is negligent is to be determined by reference to the general principles of negligence and is not dependent on a finding that the defects were hidden: Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375.
Ground 5 - Mr Butcher's Evidence
42 Mr Butcher's company provided metal fabrication services to the appellant and he was personally involved in building all crane bonnets ordered by the appellant. He built bonnets based on drawings supplied by the appellant which drawings provided for tolerances that permitted some degree of variation in the size of the parts used in the construction. He had a system to ensure the bonnet and the mid bonnet section "fit". If after assembling the bonnet and mid bonnet they were not within a
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- millimetre tolerance he would reject them. The trial Judge concluded that "within Mr Butcher's evidence" there was room for a finding that bonnets may become distorted to such an extent that catching may occur in lifting and normal use. I take that to mean that Mr Butcher's evidence did not conflict with the finding. I agree.
43 Mr Butcher was not asked any questions concerning whether the tolerances allowed for in the manufacture of the bonnet were such as to permit the pincer effect in the event the top of the bonnet deformed. According to Mr Generowicz, the bonnet of the crane matched its seating perfectly yet was tight to lift. The trial Judge noted and accepted the evidence of Mr Black and Dr Chew that "certain tolerances could be left which could give rise to the pincer effect". That evidence is also consistent with the evidence of Mr Simms accepted by the trial Judge. I would dismiss this ground.
Ground 6 - The Appellant's Second Handle
44 In Mr Simms written reports dated 6 May 1999 he addressed the risk of injury arising from the design of the crane and on the issue of a redesign to reduce or eliminate risk, he observed that the additional handle fitted by John Holland assisted in opening the bonnet and could easily have been fitted by the manufacturer. One of Mr Simms' reports was provided to Mr Black, the appellant's design engineer. In September 2000 the appellant made some changes to the design of the bonnet, one of which included adding a handle to the side of the bonnet. In his examination-in-chief when referring to the handle, Mr Black said:
"We did obviously receive this complaint through our legal people and we re-assessed the entire bonnet assembly. We work on customer feedback. This was a big customer feedback to us, or it wasn't customer; it was from someone else, so we wanted to readdress the situation. We looked at mainly the opening posture and the opening force required for the bonnet which hadn't changed from our original calculations and original testing, but we also took on board and considered that they had added an additional handle to their crane, so we looked at that as well."
45 He then went on to say that the second handle was placed there to control the opening of the bonnet to its equilibrium point and to assist in closing the bonnet. He was cross-examined as follows:
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- "The second handle that you have spoken of designing in 2000, you have said that that was designed in response to the information about [the plaintiff's] accident. Is that right?---It was designed after we considered the response of Dr Simms' report and we placed it in the position - we reassessed the lifting effort required, the ergonomics of that, and we put a handle on the crane for a different reason to what Dr Simms was talking about.
So you designed it in response to Mr Simms' report but you put it on for a different reason? Is that what you're saying?---When we received this hearing, this problem, we reassessed the bonnet - lifting design and we reassessed the whole system of the whole of the way you go about opening the bonnet and that's when we looked at the ergonomics through the opening stage of the bonnet. We reassessed the lifting force required and we still maintain that that was the same as what we originally designed but we were adding some handles and other components in other locations at the time.
The second handle makes it safer to lift the bonnet. Isn't that the effect of it?---It's not, no.
You don't think it does make it safer?---I don't use the side handle to lift it, no. I use the side handle to control the bonnet through the last 20 odd degrees of its operation and to close the bonnet from the fully opened position."
46 The trial Judge expressed concern about Mr Black's evidence concerning the second handle. He said that Mr Black "appeared to be attempting to justify the manufacturer's inclusion of the second handle, but also, at the same time, trying to avoid any relationship between that and the possibility that the absence of a handle caused the accident itself."
47 The trial Judge then referred to Mr Black's agreement with the proposition that if there was a pincer effect, a side handle would make the bonnet easier to lift. He continued (at [73] of the reasons):
"Although Mr Black was at pains to suggest that the second handle was included (and used) for reasons other than assisting the lifting of the bonnet and making this easier (particularly in the event of any catching) he appeared to strengthen the plaintiff's case in this regard."
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48 Against that background, the trial Judge said that there was room in the evidence, particularly that of Mr Black, to conclude that after the accident the appellant realised that the bonnet and its lifting mechanism was defective and required making good by further design and manufacture. He does not expressly make findings to that effect although, in context, he does so implicitly.
49 It is clear the trial Judge did not accept Mr Black's explanation of the reasons for the addition of the second handle. On that basis it was open to the trial Judge to draw the inferences he did from the inclusion of a second handle in the context in which it occurred.
50 In its submissions the appellant raised a different point which was to the effect that the addition of a second handle was not a reasonable means of overcoming the problem because the lifter would be required to adopt an unsafe position with both feet on the platform. The appellant does not in its grounds of appeal challenge the trial Judge's findings on this subject. In any event, Mr Simms did not concede that the use of two handles would require the operator to adopt an unsafe procedure. He said whether a posture was safe depended on inter alia, the force being lifted and there was no finding of the lifting force required to open the bonnet when two handles were used. I would dismiss this ground of appeal.
Ground 7 - Breach of Standard of Care
51 The appellant contends that it was not open to the trial Judge to find that it had breached its duty of care in the design of the bonnet having regard to the allegedly "unique" and "anomalous" problem experienced with the crane, that is, the pincer effect and its consequences. The conclusion is said to flow from the absence of the fault in other cranes manufactured by the appellant and the absence of any complaint about lifting difficulties since 1993 when the bonnet mechanism of the appellant's cranes was re-designed to include the gas strut.
52 The trial Judge did not make a finding that the design defect which permitted the pincer effect was anomalous or unique to the crane used by the plaintiff. To the contrary, the trial Judge found the design permitted certain tolerances which could give rise to the pincer effect. Mr Simms' evidence accepted by the trial Judge was that there was an inherent potential design flaw, potential because it would not manifest itself in all bonnets manufactured by or for the appellant.
53 The appellant relies on Mr Chew's reports. Mr Chew did not find the pincer effect in two AT18 cranes he inspected. That evidence goes no
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- further than proving the absence of fault in those machines. It is necessary to distinguish between the absence of evidence of fault in other cranes manufactured by the appellant and the proven absence of such faults. Further, the absence of complaint to the appellant is equivocal. John Holland made its own modification to the crane after the plaintiff's accident. Mr Carvalho, the owner of the crane, did not complain to the appellant about the difficulty in lifting the bonnet with the T-handle provided by the appellant. Further, the model AT18 crane was only in production between 1996 and December 2000 during which period 170 cranes were manufactured. I am satisfied that it was open to the trial Judge to conclude that the pincer effect resulted from a design defect rather than being a defect unique to the crane.
54 In any event, the pincer effect was not the only design defect identified by the trial Judge. He concluded that a lifting force exceeding 15 kilograms was unacceptable because of the awkward position required to be adopted by the person lifting the bonnet. The two AT18 cranes tested by Dr Chew required a lifting force of 17 and 19 kilograms respectively. Mr Black's evidence was that in the 1993 redesign, the appellant set out to achieve a lifting weight range of between 16 to 20 kilograms. Although the lifting weight was within occupational health and safety guidelines, the trial Judge made his finding in the context of the awkward lifting position. The trial Judge's finding that the problems in lifting the bonnet should have been obvious to the appellant at the time of manufacture is inconsistent with the appellant's assertion that the problem was unique to the crane.
55 It is against this background that the trial Judge acknowledged what he described as the considerable work and thought that went into the design of the crane, the bonnet and the modifications required from time to time. Based on Mr Black's evidence, the 1993 modifications were made in response to complaints from users. The appellant also had a system of quality assurance and the trial Judge found there was a detailed system of checks when the cranes were completed. Notwithstanding these matters, the factual findings made by the trial Judge which I have concluded were open on the evidence mean it was open to him to draw the inference that the appellant had breached the duty and standard of care owed by it to the plaintiff.
56 For these reasons I would dismiss this ground of appeal and the appellant's challenge to the trial Judge's findings on liability.
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Apportionment
57 The applicable legal principles are not in dispute. It is accepted by the parties that the principles governing the determination of apportionment between a negligent defendant and a plaintiff guilty of contributory negligence also apply to the determination of contribution between two negligent defendants: see Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272 per Pidgeon J at [34].
58 In making an apportionment which is just and equitable as between the defendants, the trial Judge must assess the whole conduct of each negligent party in relation to the circumstances of the accident and make a comparison for their respective culpability. The significance of various elements will vary from case to case. However, much latitude must be allowed to the trial Judge in determining what apportionment is just and equitable and such a finding is not lightly reviewed: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Pennington v Norris (1956) 96 CLR 10.
59 It is appropriate to identify the factual findings made against John Holland. I have already referred to the adverse inference drawn by the trial Judge arising from John Holland's unexplained, or inadequately explained, failure to produce the log book for the crane. The trial Judge also found that the consequences of the pincer effect were exacerbated by the continuous use of the crane by John Holland in robust conditions; the fact that the bonnet was jamming was made known to John Holland and, in any event, would have been evident by regular inspection of the bonnet itself; and the jamming effect could have been relieved to a degree by regular oiling and/or greasing.
60 The trial Judge then considered and weighed the respective breaches of duty and he was influenced in that process by his characterisation of the manufacturing defect as being hidden. For the reasons given, this characterisation is erroneous and the error justifies the intervention of this Court.
61 The plaintiff was employed by John Holland who was under a non-delegable duty to the plaintiff to establish, maintain and enforce a safe system of work. John Holland was on notice of the difficulties in lifting the bonnet. There is no finding or evidence that John Holland took any positive steps to address the problem until after the accident occurred. As the creator of the danger, the appellant should bear a greater degree of culpability which is ameliorated to an extent by the trial Judge's finding that the appellant was well-intentioned and genuinely concerned to
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- produce an effective and safe crane. Having regard to the whole of the conduct of the appellant and John Holland and the degree of departure from the standard of care required of them, it is just and equitable that the appellant be held 60 per cent responsible for the accident and John Holland 40 per cent responsible. I would uphold the appeal on this ground.
Notice of Contention
62 The trial Judge held that where a product is defective and the defect is hidden, the manufacturer of the product is liable in negligence. I infer the trial Judge concluded that a manufacturer is only liable in negligence for hidden defects. As previously noted, that statement of principle is unduly restrictive. The respondent contends that the trial Judge's decision should be upheld even if the defect was not hidden. Although the appellant did not challenge the trial Judge's finding of liability on the ground that as the defect was not hidden it is appropriate to uphold the notice of contention.
Conclusion
63 I would dismiss grounds of appeal 1 to 7 and uphold the appeal against the apportionment of liability. I would also uphold the respondent's notice of contention.
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