Garrett v Hills Industries
[2006] QDC 299
•16 June 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Garrett v Hills Industries [2006] QDC 299
PARTIES:
DAVID JOHN GARRETT
Plaintiffand
HILLS INDUSTRIES LIMITED
DefendantFILE NO:
D712 of 2001
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Southport
DELIVERED ON:
16 June 2006
DELIVERED AT:
Southport
HEARING DATE:
14, 15 March 2006.
Written submissions received from defendant on 22 March 2006 and from plaintiff on 13 April 2006.JUDGE:
Newton DCJ
ORDER:
PLAINTIFF’S CLAIM DISMISSED
CATCHWORDS:
NEGLIGENCE – personal injuries – products liability – manufacturer’s duty – whether ladder was defective
TRADE PRACTICES – defect in design or manufacture of ladder
Trade Practices Act 1974
Cases cited:
Carey-Hazell v Getz Bros & Co. (Aust) Pty Ltd [2004] FCA 853
Crisa v John Shearer Ltd (1981) 27 SASR 422
McMahon v Griffin & Coal Mining Co. Pty Ltd [Full Court of Supreme Court of Western Australia; 16 May 1997]
O’Connor v Hansen Wilckens Hornibook Constructions Ltd (1968) 42 ALJR 239COUNSEL:
Mr K Howe for the Plaintiff
Mr P D Lane for the Defendant
SOLICITORS:
Price & Roobottom for the Plaintiff
Moray & Agnew for the Defendant
This is an action for damages for personal injuries arising from a fall from a ladder. Quantum of damages has been agreed in the sum of $115,000. Liability remains in issue.
The plaintiff, David John Garrett, is a 49-year-old man (date of birth 28 January 1957) who is a self-employed builder/carpenter. He has been in the building trade for all of his working life, receiving his builder’s licence in 1992.
On 14 July 1998 the plaintiff was working on a construction job on a house at the corner of Daintree Drive and Chelmsford Place, Parkwood. He commenced work at 7.00 am and fell from the ladder he was using at 2.00 or 2.30 pm. He was standing on a Bailey’s Comet A-frame ladder which he had borrowed from a work-mate, Chris Roberts.
The plaintiff folded the ladder out, put the two side clips on, leaned it up against the house, climbed and descended the ladder several times while measuring and fetching timber, and while reaching for a nail gun, fell. The plaintiff described the incident as follows:
“So, you just stand the gun up in the gutter or lean it down into the gutter which stops it from falling over the edge, hold a piece of timber up, grab the gun, and as I was reaching for that gun the ladder fell down from underneath me ---
It basically went that way, so my feet went underneath the eaves type of thing, and the ladder went – it all happened so quick ---
It went away from me towards the house ---
So, the middle of the ladder went towards the house, I came down, and the next thing I know that – I didn’t even know at the particular time I’d torn my finger. I must have grabbed a hold of the inside of the gutter to stop myself from falling. As I said, it just happened so quick and I came down, and the next thing I know I was on my back on top of the ladder with a very sore neck. I hit the bottom rung of the ladder and jarred my neck back that way. My back was sore. My shoulder was – both shoulders were sore ---.”
Mr Roberts, the owner of the ladder, did not see the incident. He was in the garage cutting timber for the internal fit-out of the house. No other persons were present and no-one apart from the plaintiff saw the fall.
The plaintiff described the ground where the ladder was placed against the house as “fairly even”. He had climbed up and down the ladder some six or seven times before the incident occurred. The ladder had given no indication of instability on any of those occasions.
In cross-examination the plaintiff denied that he was tired or fatigued at the time of the incident. The ladder had been transported from the site following the incident by Mr Roberts in his utility. The plaintiff did not see how the ladder was transported from the site, but was told subsequently by Mr Roberts that he had taken the ladder. The plaintiff stated that he had cut the side stile out of the ladder after the accident.
Jason Scott Lenac, a structural engineer, testified on behalf of the plaintiff. He had prepared two reports concerning this matter, the first dated 17 April 2003 and the second 20 July 2005. Mr Lenac was asked to comment on “the cause of the buckling”. He stated as follows:
“--- based on the ladder that we inspected at the solicitor’s office, and based on what Mr Garrett has in his statement, the sequence of events which occurred, the buckling of the ladder is a twisting of the stiles, essentially associated with an overloading in the stiles, so the metal is has yield and there’s a number of cases or a number of causes that can contribute to the buckling. One which is uneven ground whereby when I saw “uneven ground” I mean one –at least one stile may not be touching the ground or support it sufficiently to transfer load from the ladder into the ground. The second is when there’s at the top of the ladder at the support, if there’s a failure at the top of the ladder where support has been compromised --- When it’s sitting in contact with gutter, let’s say --- the eaves gutter buckles, and there’s a transfer of load again – uneven transfer of load from one side of the ladder to another, causing a twist. That can also lead to a failure. The other – the other potential cause we’ve identified in the report is the transfer of load from say someone reaching out a distance of up to a metre away, let’s say, with a quite a substantial load and causing another twisting effect in the ladder to occur – well, I mean – I mean by not just being concentric, standing centrally on the ladder, which actually is putting an off-set load onto the ladder. So, as I said, it’s based on the statements that have been provided to me and it’s very difficult for us to come to a definite conclusion as to a failure, but all – but we’ve identify a number of causes which could lead to the failure.”
Later in his evidence-in-chief Mr Lenac stated:
“Based on what we saw, the ladder’s displaying characteristics of a lateral torsional buckling of the stiles which it’s - which is probably easiest seen in photo 2 of my report of the 20th of July 2005, which is a local buckling of the stiles. You’d note there has been pieces removed from the ladder which is not a cause, I guess, of the failure. But essentially what we’re saying is the effects shown in that photo are caused by the number of issues I just raised ---
Based on Mr Garrett’s statement of events it should not have occurred ---
--- it’s hard to comprehend that a ladder could fail given the circumstances that he’s described.”
Mr Lenac testified that the same model ladder as that from which he plaintiff fell had failed to comply with the Australian standard AS1892 in relation to the measuring of torsional deflection. The witness described the torsional deflection as a twisting of the ladder and the first stage of a buckling of an element primarily due to overstress of the stiles. The material yields because the load is greater than it is capable of resisting.
Assuming the truthfulness (and, by implication, the accuracy) of the account given in relation to the incident by the plaintiff, Mr Lenac’s opinion was that the ladder has “failed basically, and you would not expect it to fail”. The ladder, he concluded, had undergone torsional lateral buckling and was, therefore, unsafe. The buckling may have resulted from uneven ground, loss of support at the top or soft ground. If both stiles had been firmly planted on the ground and load transfer was obtained through the ladder, buckling issues would not be expected to be generated from uneven support. If the ladder had buckled while the plaintiff was standing on it, then the evidence would suggest that the ladder itself was unsafe.
In cross-examination Mr Lenac made the following concessions:
§ he had no experience in manufacturing ladders;
§ he had no experience in designing aluminium ladders;
§ he had never previously provided a report in respect of a damaged aluminium ladder;
§ he had never previously given expert evidence in Court about another accident involving a ladder;
§ he had not examined any other ladders for the purposes of giving expert evidence in Court;
§ he had no qualifications in metallurgy;
§ he had no formal training in failure analysis with respect to ladders;
§ he had not conducted any tests or experiments on ladders on flat ground and on uneven ground;
§ he had not conducted any tests or experiments on ladders generally;
§ he had not conducted any tests or experiments on a Comet 6 ladder specifically;
§ he had very rarely, if ever, been required as part of his project work, to examine and consider the provisions of the Australian standard relevant to portable ladders;
§ he had never previously considered or examined that standard to give a professional opinion; and
§ he had not, in preparing his reports, inspected the site of this incident.
In Mr Lenac’s report dated 20 July 2005 he stated “If the ladder undergoes eccentric loading either from mounting or dismounting the ladder from an eccentric position of the load on the tread, or an uneven bearing surface at the base, the stiles have very little torsional buckling capacity to resist this action. This can lead to twisting and ultimately buckling of the stiles.” However, Mr Lenac conceded that if the ladder was on flat ground, if there is no evidence that one stile was off the ground, that the ladder was level at the top, that Mr Garrett had been up and down the ladder on about six occasions with no problems, that his feet were positioned correctly on the tread at the time of the incident, that his weight did not shift immediately before the incident, and that he was basically stationary on the ladder, then his theory as to how the accident occurred falls by the wayside.
Furthermore, Mr Lenac agreed with counsel for the defendant that if the facts as stated above are found to have existed, then the relevant tests with respect to the Australian standard are the permanent set test and the stile deflection test. The Comet 6 ladder passed those tests.
Not having experience in relation to testing the material from which the ladder is constructed, Mr Lenac confirmed that he had seen the results of testing done in this regard by an entity called Amdel Limited. He agreed that those tests did not reveal any flaw in the material of the ladder. He, appropriately, conceded that a statement in one of his reports that a possibility existed that there was a flaw in the material was a statement without substance.
Mr Lenac was asked to look at photograph 35 on page 26 of Mr Kutek’s report which depicts a fracture on the ladder. He agreed that the fracture seen in the photograph could have been caused when the ladder was bent back into position after the incident and that the fracture shown was a tensile fracture. He also agreed that only very rarely does a tensile fracture develop with a compression load.
Mr Lenac agreed with the suggestion that if the spreader (which he also referred to as the locking mechanism) had buckled due to the stile’s deflecting, that would not affect the performance of the ladder and was irrelevant.
In his first report Mr Lenac stated “based on our calculations, the ladder provides adequate bending strength”. Mr Lenac agreed that his own calculations, in fact, revealed a safety factor of 4:1, that is, four times the designated load. He therefore agreed that his calculations revealed that the ladder did not simply have “adequate bending strength” but had a considerably adequate bending strength revealing that the torsional buckling capacity of the ladder was acceptable. Mr Lenac agreed that his calculations did not lead to any conclusion that the ladder was unsafe.
In his first report Mr Lenac had stated “mounting the ladder invariably will cause a twisting action in the stiles also. This, in conjunction with inadequate support at the top or bottom, could possibly lead to lateral torsional buckling of the stiles”. He conceded that he had not actually done any tests to support that theory and that he was simply speculating. Furthermore, he agreed that the concept of mounting the ladder so as to cause twisting is of no relevance to the case in point.
Although Mr Lenac had stated in his first report that “it could be argued that the only difference between domestic and industrial use is the increase in the number of load repetitions,” he agreed with the suggestion that that is not the only difference and that issues such as how the ladders are handled, stored and transported are relevant. Of some importance was Mr Lenac’s concession that the observed damage to the ladder may have been the result of the plaintiff falling on it. He agreed that the damage he observed was such that it was difficult to establish whether it was a pre-existing damage which occurred during the actual collapse and that it was not possible to tell from looking at the ladder exactly what, if any, pre-existing deformations were present.
In relation to the statement in his first report that “the damage in the stiles are [sic] due to lateral torsional buckling has [sic] been caused when the member has been subjected to axial load bending and torsion acting simultaneously,” Mr Lenac agreed that there is no test in the Australian standard which measures a combination of axial load bending and torsion. He further agreed that the stile deflection test replicates having the user standing eccentrically (that is, with the load all on one side or on one stile) and the ladder supported evenly at the top and bottom. In this regard the ladder passed the relevant test. If a ladder twists a number of degrees more than referred to in the standard, that does not necessarily mean that the ladder will collapse. Ladders are designed not to be rigid but to have a certain degree of flexibility so as to bend and rotate to accommodate forces.
Ultimately, Mr Lenac was unable to point to any structural defect in the design or manufacture of the ladder which may have caused or contributed to the incident.
Mr Henry Kutek, a forensic metallurgist and engineer, testified on behalf of the defendant. The conclusions expressed in his report were that examination of the ladder identified no defects which may have contributed to the accident in which the plaintiff was injured. The available evidence suggests that the ladder bent between the fourth and fifth treads, probably as a result of a sudden and rapid application of an unusually large force. Such a force would arise if the plaintiff had fallen onto the ladder, striking it in the vicinity of the third to fifth treads towards the left-hand side of the ladder. Mr Kutek observed evidence of cement mortar on the eighth, ninth and tenth treads of the ladder which could have been a causative agent in the plaintiff’s right foot slipping on a tread.
Mr Kutek stated that in his opinion the incident could not have occurred in the manner described by the plaintiff. His examination of the available evidence suggests that the ladder suffered an impact load as the plaintiff landed on his back on the ladder. The damage to the ladder and to the plaintiff’s back and neck are consistent with such a fall. In Mr Kutek’s opinion the causes of the plaintiff’s fall do not include the collapse of the ladder, regardless of what surface it was standing on.
As there was no evidence that the top of the ladder had slipped sideways along the gutter, it is unlikely that the ladder slipped sideways as the plaintiff reached for the nail gun or because the ladder was resting on uneven ground and not secured at the top. Mr Kutek suggested that if one of the plaintiff’s feet had slipped through the ladder because of wet mortar and/or a slight downward incline of the treads from the ladder having its base too far from the wall, the plaintiff may have injured his knee, lost balance and fallen while attempting to stop his fall by grasping the gutter with his right hand. Whatever the cause of the accident may have been, Mr Kutek is of the opinion that the ladder was capable of safely performing its function.
In relation to Mr Lenac’s reports, Mr Kutek was critical of the engineering and scientific methodology adopted in their preparation. Mr Kutek posited that any failure investigation must examine the evidence, form a hypothesis, test the hypothesis and then, should the hypothesis not pass the test satisfactorily, alter the hypothesis and test again until a robust hypothesis that is in accord with the evidence is developed. Mr Lenac had not proceeded in this manner but rather had taken the simplistic approach that the ladder had clearly failed through bending, applied some calculations that demonstrated that the ladder was able to safely carry the design loads, and then speculated on other possible intervening factors.
Mr Kutek commented on Mr Lenac’s reports by observing that they had concluded that the ladder failed because it had been simultaneously subjected to axial, bending and torsional loads which, probably due to the ladder standing on an uneven surface, generated stresses, exceeding the ladder’s capacity to accommodate those stresses. In Mr Kutek’s opinion, the reports of Mr Lenac do not identify a deficiency in the ladder’s design strength.
In relation to the Australian standard 1892.1:1996, Mr Kutek stated that dual purpose or combination ladders were required to comply with the relevant performance requirements of section 9. That section prescribes performance requirements for various ladders with section 9.2 prescribing those for single ladders. Thirteen tests are prescribed in section 9.2. The stile deflection test in section 9.2.1 is the relevant test for combined axial, bending and torsional stresses. Section 9.2.2 describes the angular deflection test which is similar to that of section 9.2.1 except that the angular deflection (degree of twist) is the test criterion. Mr Kutek stated that the Hills Industries Performance Tests ref. no. AD0002/97 dated 15 April 1997 shows that the tested ladder satisfied these requirements. However, Mr Kutek observed that the standard does not contemplate ladders being misused by being used on an uneven footing.
Mr Kutek’s examination of the locking hooks showed them not to be significantly deformed. They were successfully used to lock the ladder straight during his examination.
Mr Kutek agreed that there was no evidence of metal fatigue in the ladder. In his oral testimony Mr Kutek said that if there was no fatigue damage the ladder could not have failed in the manner as described by the plaintiff. If there had been fatigue present in the ladder then what the plaintiff is saying would be consistent with that finding, however, there was absolutely no evidence of fatigue anywhere on the ladder.
In his evidence-in-chief Mr Kutek stated that he had examined more than 20 ladder accidents on behalf of both plaintiffs and defendants.
In relation to the Australian standards testing, Mr Kutek stated that the ladder section twist test in the Australian standard is of no relevance because that test measures the overall twist of the ladder with the base fixed and the top end of the ladder rotated with a set load. The relevant test to be considered in this case was the stile deflection test which involves applying a load on one stile and then the other and inducing twisting forces in the stiles and seeing how far they can twist. Twisting forces are similar to those applied when a person climbs the ladder.
Mr Kutek was asked to comment on Mr Lenac’s evidence that a possible explanation for the plaintiff’s fall involves one of the stiles being off the ground. Mr Kutek stated that he had carried out tests involving the application of eccentric loading to a Comet 6 ladder and had also conducted tests involving weights of up to 120 kg to the ladder and also had tested the ladder by placing it on an uneven base with one stile standing freely off the ground. In none of those scenarios did the Comet 6 ladder collapse or show torsional buckling of the stiles. The testing included a person mounting and dismounting from the ladder and also moving up and down the ladder whilst a 120 kg weight was applied to the ladder. Thus, in summary, even where the Comet 6 ladder had been placed on uneven ground and was resting on one leg or stile only, the ladder did not buckle and collapse.
The Webster hardness is a measure of hardness of the aluminium which provides a fairly approximate indication of the hardness of the material being tested. The ladder which the plaintiff fell from was tested for hardness by Amdel and was found to be constructed of harder material than a ladder of the same type which had been tested in 1997 and which was found to have had a Webster hardness of 12. Mr Kutek stated that with respect to aluminium, its hardness is related to the strength of the material. Therefore, the harder the material is, the higher the strength of the ladder or, in other words, a material which has a softer or lower hardness reading will have a lower ultimate tensile strength than the harder material and would be generally weaker.
In cross-examination Mr Kutek was asked why he had not put any of his theories about the cause of the accident to the plaintiff when they were on site together, when Mr Kutek conducted his site investigation. Mr Kutek stated that his reasons were firstly, that he was there to gather information and secondly, he had been advised by his instructing solicitor that the plaintiff’s solicitor would be present and that he should, accordingly, keep his questions of the plaintiff to a minimum.
Counsel for the plaintiff suggested to Mr Kutek that it was beyond his expertise to advance hypothetical scenarios as to what may have happened or caused the incident. Mr Kutek rejected that suggestion stating that it was not beyond his expertise to look at damage that has occurred to a ladder and attempt to determine what caused the damage. In this case he was confident to say that the damage had been caused by a very large load. He conceded he was not confident to calculate the magnitude of that load.
Mr Kutek also disagreed with the suggestion that when conducting his site investigation in the presence of the plaintiff, the latter told him that the base of the ladder could have been further in or further out from the wall than where it had been placed by Mr Kutek. It was his recollection that the plaintiff simply stated that the base of the ladder may have been further out from the wall than that position.
Mr Kutek testified that had there been any sort of defect in the ladder it would have been detectable regardless of whether the defect was a design defect, a manufacturing defect or an in-use defect. It was suggested to him that the inspection and testing of the ladder may have been defective but that was not accepted by the witness.
Counsel for the plaintiff asked whether Mr Kutek accepted that on a building site there may be undulations in what appears to be even ground. The witness accepted that suggestion without any reservation. He was then asked whether a ladder should be able to accommodate that. He replied as follows:
“It should and I believe it does. To demonstrate to myself – or to demonstrate it to determine what happens if the ladder is unevenly supported, I have had a Comet 6 ladder of my own for some years now and recently I put that in my back yard leaning against the back veranda, mounted the – the feet on two bricks, ascended the ladder carrying a 20-litre container of water so that I had a total mass of 125 kilos, and I got my daughter to remove the brick from under the left stile and I stood on the step above the top cap. I bounced on the ladder. I found that I couldn’t climb the ladder supported on one foot – with the ladder supported on one foot because it would simply topple over, slide along the fascia. So, I stood there. She removed the brick. I bounced slightly on the ladder to simulate climbing up and down it. Looking down while I was standing on it, the left-hand stile had rotated inwards by about 10 or 15 degrees. And that was – there was no permanent deformation. There was no bending. There was no excessive twisting. The ladder was fine.”
Mr William Alan Cosgrove gave evidence on behalf of the defendant. He is the General Manager of Hills Industries, the Bailey ladder division. Mr Cosgrove sits on the committees of four Australian standards including that having responsibility for the standard relevant to portable ladders. Mr Cosgrove confirmed that approximately 70,000-80,000 Comet 6 ladders had been manufactured by Hills Industries and supplied to members of the public. The ladders were constructed between 1993 and 1997. Any testing of the Comet 6 ladder by Hills Industries was supervised by the company’s testing engineer who is a professional engineer holding a 4-year degree from the Western Australia University.
It should be noted that the owner of the ladder from which the plaintiff fell, Mr Roberts, was not called to give evidence.
I am satisfied that the plaintiff was a truthful witness although not necessarily a reliable one. Given that the incident involving the plaintiff’s fall occurred in a split second and that, quite understandably, the plaintiff was very groggy immediately after the fall, it is likely that he has sought to reconstruct the accident, having in mind the obvious damage that his fall occasioned to the ladder.
I find that the ladder had been placed by the plaintiff on fairly even ground with the top of the ladder placed against a newly installed gutter. There is no evidence that the foot of one of the stiles of the ladder was off the ground at any material time. I am satisfied that the plaintiff was standing on the ladder immediately prior to his fall and was neither mounting nor dismounting the ladder at the relevant time. I find that there was no significant shifting of his weight immediately prior to the plaintiff falling and that his reaching for the nail gun did not involve any transferring of weight on the ladder. I accept that the plaintiff had ascended and descended the ladder approximately six times prior to the incident occurring and on none of those occasions had any problems been experienced with the ladder. I accept that a greater twisting force is applied to a ladder when a person climbs it rather than when simply standing upon it.
To the extent that Mr Lenac assumed that the plaintiff was either mounting or dismounting from the ladder or that the ladder was uneven at the top and/or at the bottom, such assumption finds no support in the evidence.
I conclude from the evidence that the plaintiff was reaching his left hand towards a nail gun while his right hand was holding a piece of timber, so that the plaintiff was not, immediately prior to his fall, holding onto the ladder itself. This may have contributed to his loss of balance, particularly given that he had been working on site for in excess of seven hours prior to the accident and was not really concentrating at the time. In this regard it should be observed that there may have been mortar on the ladder and that the treads were probably angled downwards to some extent. The plaintiff, in my opinion, is mistaken in his account of the collapse of the ladder.
With respect to the evidence of Mr Lenac, I accept the submissions of counsel for the defendant that the former has speculated, has raised hypothetical theories which were at odds with the facts, has raised matters which, as he later conceded, were without foundation and who was mistaken in various respects. I am satisfied that there was no failure of the ladder by way of buckling as it underwent eccentric loading by mounting or dismounting as the evidence establishes that the plaintiff was not performing either of these tasks at the time. I reject Mr Lenac’s suggestion that the weight on the ladder exceeded its design capacity – the evidence is clearly to the contrary. Furthermore, the suggestion that an uneven bearing surface at the top or base of the ladder may cause twisting of the stiles, is of no relevance to the facts of this case which, as I have indicated, establish that the ladder was not on an uneven surface at either the top or bottom. In relation to any suggested pre-existing deformations of the stiles, it has not been established that there were any such deformations and, if there were, whether they had any bearing on the cause of the accident. Indeed, the evidence of Mr Kutek strongly suggests that there were no pre-existing deformations. Mr Lenac himself, it will be recalled, was ultimately unable to point to any structural defect in the design or manufacture of the ladder which may have caused or contributed to the incident. Mr Lenac’s suggestion that it could also be possible that the material used in the construction of the ladder had been flawed during the extrusion process, finds no support in the evidence – a point which Mr Lenac was again obliged to concede. Indeed, evidence that there was no flaw in the material was again given in the evidence of Mr Kutek.
So far as the Australian standard/performance tests are concerned, I am satisfied that the ladder has passed all relevant tests. I find that the ladder section twist test was quite irrelevant to the facts of this case, it being of relevance to situations where a ladder is placed against a tree or post. In this case, because the ladder was not on an uneven base or resting unevenly at the top, the ladder section twist test has no application. The evidence is that the Comet 6 ladder has passed the tests which are relevant to the instant case, those being the stile deflection test and the permanent set test.
Even if the Comet 6 ladder had not passed all relevant tests of the Australian standard, this would not, of itself, establish negligence: O’Connor v Hansen Wilckens Hornibook Constructions Ltd (1968) 42 ALJR 239; Crisa v John Shearer Ltd (1981) 27 SASR 422 at 428.
In relation to the evidence of Mr Kutek, I am satisfied that he was better qualified to express opinions as to the likely cause of the plaintiff’s falling than was Mr Lenac. In particular, I have regard to the fact that Mr Kutek is a qualified metallurgist and is qualified and experienced with respect to failure analysis. Mr Kutek had inspected the site of the accident and had carried out tests on the type of ladder relevant to this case. He also had experience of examining ladders in relation to various claims involving both plaintiffs and defendants. I accept Mr Kutek’s conclusion that in the absence of metal fatigue, the accident could not have happened in the manner described by the plaintiff. The state of the evidence in this case satisfies me that the defendant has neither designed nor manufactured a defective ladder.
It will be recalled that the owner of the ladder, Mr Roberts, who was present at the site at the time of the accident but who did not witness the accident, did not give evidence. As a result it is not possible for the Court to determine how the ladder had previously been transported, handled or stored. In particular, the evidence is silent as to how often the ladder had previously been used; what weights had been carried up and down the ladder; whether the ladder had been subjected to rough handling; the circumstances under which the ladder had been transported including whether building materials or tool boxes had been placed on top of the ladder whilst being transported or stored; and how the ladder would be strapped when being transported.
The evidence strongly suggests that the ladder appeared to be in good condition. However, even a subtle defect could have had a significant effect on it as was conceded by Mr Lenac. If there had been even a slight defect as a result of the way in which the ladder had been transported, handled or stored, this could not be said to have resulted from any negligence in design or manufacture on the part of the defendant.
The plaintiff’s case is based upon alleged negligence on the part of the defendant or upon the liability created by s 75AD of the Trade Practices Act 1974 (“TPA”). That section provides that:
“If:
(a) a corporation, in trade or commerce, supplies goods manufactured by it; and
(b) they have a defect; and
(c) because of the defect, an individual suffers injuries;
then:
(d) the corporation is liable to compensate the individual for the
amount of the individual’s loss suffered as a result of the injuries …”.
It is not in dispute that the defendant designed and manufactured the ladder, nor that the ladder was supplied in trade and commerce and was intended for use as an extension ladder. What is denied by the defendant, however, is that:
(a) the ladder “buckled and collapsed” whilst the plaintiff was positioned on it;
(b) the incident was the result of negligence on the part of the defendant; and
(c) the ladder had a defect within the meaning of that term as used in s 75AC of the TPA which caused the incident.
Section 75AC(1) gives a meaning of goods having a defect “if their safety is not such as persons generally are entitled to expect”. The “defect” alleged by the plaintiff is “that the stiles (sides) of the ladder did not have sufficient torsional strength so that the ladder was liable to buckle and collapse whilst being used as an extension ladder”.
I accept that where a plaintiff relies upon the product reliability provisions of the TPA, the onus of proof rests upon the plaintiff to prove that the goods were defective. Part VA of the TPA (which contains ss 75AC and 75AD) has not introduced a strict product liability regime in that a plaintiff must firstly establish that he or she suffered injury as a result of a defective product (see Carey-Hazell v Getz Bros & Co. (Aust) Pty Ltd [2004] FCA 853 at para 182). The onus of proof shifts to a defendant only when a plaintiff has proved a breach of s 75AD by establishing that a defendant has supplied defective goods manufactured by it which injured the plaintiff. I respectfully adopt the observations of Kiefel J ion Carey-Hazell where her Honour states:
“It says that the purpose of the Bill is to introduce into Australia a strict product liability regime based on the 1985 European Community Product Liability Directive … It appears from what follows in the Explanatory Memorandum however that liability was to be limited by the requirement of a defect. In JD Heydon, Trade Practices Law: Restrictive Trade Practices, Deceptive Conduct and Consumer Protection, Lawbook Co, Sydney, 2001, at [16A 80] it is observed that s 75AC(1) is a departure from strict or absolute liability. The Memorandum states that the regime of strict liability provided for, when a person suffers injury as a result of a defective product, is that they have a right of compensation against the manufacturer without the need to prove negligence on the part of the manufacturer. Another aspect of Part VA, which a Full Court observed in Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission and Anor (1999) ATPR 41-672 at 42, 592, is that it permits recovery irrespective of the existence of any contractual relationship between the manufacturer and the person injured.
The provisions of Public Trustee VA follow closely the European Community Directive of 25 July 1985 (Directive 85/374/EEC, OJ No L210, 7.8.1985, p 29). The approach recommended by the ALRC went further. Pursuant to it a person would not need to establish that the goods did not comply with a standard of safety or quality. It rejected the need to limit liability by some concept such as ‘defect’.
The Outline to the Explanatory Memorandum continued:
‘The key concept of the new Part VA inserted by this Bill is that a person who is injured, or whose personal property is damaged, by a defective product will have a right to compensation against the manufacturer of the product. Goods are ‘defective’ if they do not have the degree of safety which persons generally are entitled to expect in all the circumstances. ‘Manufacturer’ has the same extended definition as currently applies for the purposes of Division 2A of Part V of the Trade Practices Act.
The manufacturer can escape liability where it can prove one of a number of defences, the most significant being that the goods were not defective when supplied by the manufacturer or that the goods represented the ‘state of the art’. The Bill also provides that, where goods contain a defect only because of compliance with a mandatory standard imposed by the Commonwealth, the Commonwealth and not the manufacturer should be liable to compensate the consumer. The amount of compensation payable is reduced by contributory acts by the injured party.’
There are three aspects to an action brought under s 75AD: the supply of goods by a corporation in trade or commerce; the goods having a defect; and a person suffering injuries ‘because of’ the defect.
The standard referred to in s 75AC(1), that goods are defective if they do not provide the level of safety which persons generally are entitled to expect, was described in the Explanatory Memorandum (at para 14) as an objective standard. It is based upon what the public at large, rather than any particular individual, is entitled to expect. Further, the standard does not require that the goods be absolutely free from risk (at para 14). The subsection has been construed in this way by Emmett J in Australian Competition and Consumer Commission v Glendale Chemical Products Pty Ltd; Barnes v Glendale Chemical Products Pty Ltd (1998) ATPR 41-632 at 40,970 and by the Full Court on appeal (Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission and Anor at 42,595)."
In relation to the onus and standard of proof, her Honour stated as follows:
“A person bringing in a claim under s 75AD is to establish the existence of a defect in the goods and the fact of their injury. Additionally they must prove causation, which is to say that the injury came about ‘because of the defect’. I shall return to that question shortly. If the manufacturer has no statutory defence, the scheme of Part VA is that liability is established. It would not be consistent with the requirements of the defence provisions, such as s 75AK(1), to require an applicant to establish the existence of the defect at a point before injury. If the necessary link between defect and injury is established it is to be inferred that the defect was present at the time of the injury, unless the manufacturer shows otherwise. The first respondent’s defence, relevant to these proceedings (under s 75AK(1)(a)), is that the defect did not exist when the goods left the control of the actual manufacturer, St Judge Medical Inc (‘the supply time’). The Explanatory Memorandum to the Trade Practices Amendment Bill (No 1) 1991 (Courthouse) described the nature of the evidence that a manufacturer might have to give in this connexion (at para 39):
To succeed in this defence, the manufacturer must show, on the balance of probabilities, that the (admittedly) defective goods were defect free when they left the manufacturer’s control. Factors such as the nature of the goods, the level of use of the goods, and the length of time between the goods leaving the control of the manufacturer and the damage will be important. Depending on the nature of the defect, the manufacturer may also need to provide detailed evidence on the manufacturing process and quality control to which the alleged defective good (not just goods of that type generally) was subjected, in order to show that this particular good was not defective when it left the manufacturer’s control.
The applicant also submitted that it may be that the extent to which she is required to prove a link between a defect in the valve and her injuries is lessened by the subsection. The submission rests upon the choice of the words ‘because of’ (the defect) in s 75AD(c), which may be contrasted with the use of the word ‘by’ in s 82(1). It has been suggested that there may be differences in terms of causation, remoteness and the measure of damages flowing from the use of the various terms ‘because of’ and ‘as a result of’ in different sections in Public Trustee VA and ‘by’ in s 82: see Heydon’s Trade Practices Law at [16A 150] and at [18.1260].”
The statutory defences available to a defendant pursuant to s 75AK need not be considered in this case as the plaintiff has, in my opinion, failed to prove that the ladder was defective.
This is not a case where the accident speaks for itself. I cannot be sure as to exactly how or why Mr Garrett fell from the ladder. The defendant carries no evidentiary onus to explain how the accident may have happened without its negligence. In this case the possibility remains open that Mr Garrett slipped because of some cause not attributable to the defendant (cf McMahon v Griffin & Coal Mining Co. Pty Ltd [Full Court of Supreme Court of Western Australia; 16 May 1997]). On the evidence before me I think it highly unlikely that the ladder buckled and collapsed whilst the plaintiff was standing on it. I am not persuaded that the incident was the result of negligence on the part of the defendant or that the ladder had a defect within the meaning of that term as used in s 75AC of the TPA.
For the reasons canvassed above, I find for the defendant and dismiss the plaintiff’s claim. I will hear submissions as to costs, if required, in due course.
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