Glennie v Taylor

[1993] QCA 443

IN THE COURT OF APPEAL  [1993] QCA 443

SUPREME COURT OF QUEENSLAND

No. 110 of 1993

Brisbane

[Re:  Glennie v Taylor]

BETWEEN:

STUART GERALD GLENNIE

Appellant

AND:

BARRY TAYLOR

Respondent
   (Defendant)

AND:

THE WORKERS' COMPENSATION BOARD OF QUEENSLAND

Defendant by Election

Mr Justice McPherson

Mr Justice Thomas

Mr Justice Mackenzie

Judgment delivered 02/11/1993
JUDGMENT OF THE COURT

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:            NEGLIGENCE - Duty of care - Whether failure to provide a safe system of work

Counsel:Mr D Fraser Q C with him

Mr M Taylor for the Appellant

Mr P Allen for the Respondent

Solicitors:Poteri Woods for Appellant

Ron Smith for Respondent

Hearing Date:          18 October 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 110 of 1993

Brisbane

Before

McPherson JA
     Thomas J
     Mackenzie J

[Re:  Glennie & Ors v Works Board]

BETWEEN:

STUART GERALD GLENNIE

Appellant

AND:

BARRY TAYLOR

Respondent
   (Defendant)

AND:

THE WORKERS' COMPENSATION BOARD OF QUEENSLAND

Defendant by Election

JUDGMENT OF THE COURT

Judgment delivered 02/11/1993

The appellant was employed by the respondent to paint battens at the respondent's home on a casual basis.  The respondent hired an airless spray gun for the appellant to use.  The machine operated by expelling paint under a pressure of 2,000 pounds per square inch.  While the appellant was using the gun, acrylic paint was injected under pressure into his left index finger.  About a week later it was necessary, because of the injury caused by the injection of the paint, to amputate the finger at the level of the middle of the phalanx. 
     A number of particulars of negligence were pleaded, including that the defendant failed to warn the appellant of the dangers to which he was exposed when using an airless spray gun which the respondent knew or ought to have known would cause injury if the appellant put his finger on the nozzle of the gun while it was being activated, that the respondent failed to warn the appellant that the method of cleaning other kinds of spray guns by placing a finger over the nozzle and activating the gun was dangerous and should not have been used with an airless spray gun, and that the respondent failed to provide a safe system of work.
     The respondent gave evidence that he demonstrated the operation of the gun to the appellant by spraying about a dozen battens.  He said that he made specific mention of the pressure at which the gun worked and said, "It is very dangerous, don't put your hand or any part of your body in front of this gun."  He again demonstrated the gun's operation by painting some more battens and instructed the appellant as to the operation of the safety lock.  He also directed the appellant's attention to a set of instructions that was wired to the machine.  Further, upon using the machine the appellant could not help but notice the great difference in pressure between this type of gun and that of the conventional air spray gun.  The respondent then went to another part of the premises to do other work.  According to the respondent, some time later the appellant came to him and said that he had had an accident.  The appellant showed him the finger into which the paint had been injected and said, "I put my finger over the gun and pulled the trigger."  After some discussion the appellant elected to drive himself to the hospital.  The respondent said that when he started to use the machine to complete the work after the applicant had left, there was no blockage and the machine worked straight away. 
     The appellant gave evidence denying that he had been given instructions not to put his hand or fingers in front of the gun when it was being operated.  He denied seeing any written warning attached to the machine.  He gave evidence that while he was painting the battens, the respondent asked him to help him shift some bricks.  He said that he removed the line from the bin of the machine and placed his finger over the nozzle and pulled the trigger.  There was evidence that this was a means used to clean residual paint from an ordinary spray gun which operated under much less pressure than an airless spray gun. 
     The learned District Court Judge resolved the conflict of evidence in favour of the respondent.  He formed a very negative view of the appellant's credibility, saying that he was not prepared to accept the plaintiff's unsupported version of the manner in which the accident occurred.  The learned District Court Judge accepted the respondent's version of events including his evidence as to the instruction and warnings given. 
     Counsel for the appellant submitted that it should have been found that there had been a failure to provide a safe system of work.  He submitted that alternative methods of painting which did not involve using a machine with the inherent dangers of an airless spray gun could have been employed, although it does not seem to us that the case was pleaded or conducted on this footing.  The case seems to have been based on inadequate instructions having regard to the dangers involved in the use of a gun of this kind.  He also submitted that, even accepting the learned District Court Judge's finding on credibility, the most probable explanation of the accident was that the appellant was trying to clean the gun by putting his finger over the nozzle, and that the respondent's failure to tell him not to clean the gun in that manner was negligent and a cause of the injury.
     The critical difficulty faced by the appellant is that the learned District Court Judge did not accept his version of the manner in which the accident occurred.  The matter must therefore be considered on the footing the appellant sustained his injury in some manner which involved placing his finger in front of the nozzle of the gun after it had been stressed to him that it was dangerous to do so and that he had failed to heed an explicit warning not to place any part of his body in front of the machine.  On that view of the case there is no basis for upsetting the finding on the part of the learned District Court Judge that the respondent was not negligent. 
     There was also an appeal against quantum.  However Counsel for the appellant informed the Court that if the appeal on liability was unsuccessful he did not request the Court to resolve the issue of quantum.  Accordingly the appeal is dismissed with costs to be taxed.