Gliddon v Maurice Kevin Atkins t/as M K Atkins
[2002] WADC 246
•27 NOVEMBER 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GLIDDON -v- MAURICE KEVIN ATKINS t/as M K ATKINS [2002] WADC 246
CORAM: VIOL DCJ
HEARD: 22-24 JULY 2002
DELIVERED : 27 NOVEMBER 2002
FILE NO/S: CIV 2391 of 1998
BETWEEN: RONALD EDWARD GLIDDON
Plaintiff
AND
MAURICE KEVIN ATKINS t/as M K ATKINS
Defendant
Catchwords:
Negligence - Employer's Liability - Whether safe system of work - Employee injuring hand opening truck door handle - Whether breach of duty of care by employer - Whether breach of statutory duty - Assessment of damages
Legislation:
Occupational Health, Safety and Welfare Act1984
Result:
Employer liable
Damages assessed at $742,180.00
(Page 2)
Representation:
Counsel:
Plaintiff: Mr J R Johnson
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Julian Johnson Lawyers
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Fox v Wood (1981) 35 ALR 607
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Watts v Turpin (1999) 21 WAR 402
Case(s) also cited:
Chapman v Hearse & Anor (1961) 106 CLR 112
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hughes v Lord Advocate [1963] AC 837
Jolley v Sutton London Borough Council [2000] WLR 1082
Jones v Dunkel & Anor (1959) 101 CLR 298
Kavanagh v Akhtar (1998) 45 NSWLR 588
Nader v Urban Transport Authority of NSW (1985) 2 NSWLR 501
Rowe v McCartney [1976] 2 NSWLR 72
Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65
White v Malco [2000] NSWSC 1165
(Page 3)
VIOL DCJ: The plaintiff is now 56 years old. The plaintiff was employed at all material times by the defendant as a truck driver - the defendant was a trucking contractor involved in the transport of manganese from a mine at Woodie Woodie some 400 kilometres from Port Hedland, to Port Hedland. The plaintiff's work involved round trips of approximately 800 kilometres, taking 16 hours to 20 hours doing such work.
On 5 July 1995, it is said, the plaintiff was driving a Mack truck ("the Mack truck") towing three trailers along Telfer Road in an easterly direction towards Woodie Woodie when, he says, a spare tyre fell off the truck. The plaintiff stopped the truck to collect the tyre and, when he attempted to open the driver's side door of the truck with his right hand, the door handle snapped and the plaintiff suffered a severe injury to his right ring finger with a number of severe consequences.
It is said by the plaintiff in his statement of claim that the defendant owed the usual duties of care as an employer to the plaintiff and also the statutory duties imposed on the defendant pursuant to the provisions of s 19 of the Occupational Health, Safety & Welfare Act 1984 ("the Act").
In his statement of claim, the plaintiff has alleged that the defendant breached the contract of employment and/or was negligent in the following respects:
"(The defendant):
(a)Failed to take all reasonable precautions for the safety of the Plaintiff in that the Defendant:-
(i)failed to carry out regular maintenance checks on the truck;
(ii)failed to provide a safe plant and equipment namely; the truck to drive;
(iii)with the knowledge that the truck had not been adequately checked and maintained required the Plaintiff to operate it for prolonged periods;
(b)exposed the Plaintiff to a risk of damage or injury of which it knew or ought to have known in that the Defendant:-
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(i)failed to carry out regular maintenance checks on the truck;
(ii)failed to provide a safe plant and equipment namely; the truck for the plaintiff to drive;
(iii)with the knowledge that the truck had not been adequately checked and maintained required the Plaintiff to operate it for prolonged periods;
(c)failed to provide a safe system of work for the Plaintiff in that the Defendant failed to:-
(i)implement a procedure to carry out regular maintenance on the truck;
(ii)warn the Plaintiff as to the risk of injury in opening the driver's door with a faulty door handle;
(iii)implement a safety policy for its employees, including the Plaintiff, to carry out their duties without a risk of injury."
In relation to the obligations under s 19 of the Act, it is said that the defendant failed:
1.To provide and maintain a workplace, plant and system of work such that, so far as is practicable, the plaintiff was not exposed to hazards.
2.To provide such information, instructions and training to, and supervision of, the plaintiff as was necessary to enable him to perform his work in such a manner that he was not exposed to hazards.
The plaintiff has claimed damages from the defendant and has a claim for economic loss and other matters. The defendant does not admit the duties of care alleged by the plaintiff and denies the breaches of the duties of care and/or statutory obligations alleged by the plaintiff. Further, it is said by the defendant in par 5 of the defendant's amended defence that "if the accident occurred as alleged in paragraph 6 of the Statement of Claim, which is denied, then such accident was not reasonably foreseeable by the Defendant and must have occurred as a
(Page 5)
result of a defect in the door handle, which defect was not reasonably discoverable by the Defendant".
At trial, the physical and mental sequelae which resulted from the injury to the plaintiff's hand were not largely in issue, although there were some brief submissions as to the plaintiff's claim for past and future loss of earnings. The question of damages was largely left as a matter for me for assessment.
However, as to the questions of negligence, breach of statutory duty and breach of contract of employment, there was a considerable range of issues to be determined including factual issues involving, inter alia, matters of credit and also two questions which are at the crux of this case.
Firstly, whether or not the truck door was so hard to open that the force required to do so was such that the door handle broke, and therefore the defendant was negligent, not only because of the defective condition of the door, but also because of a failure to properly maintain it.
Secondly, the question of the extent to which the expert evidence called on behalf of the defendant could be relied upon in support of the defendant's case and, in particular, the allegation in par 5 of the defendant's amended defence.
It is necessary, therefore, to examine, to a degree, the evidence in the matter in order that findings can be made as to the factual matters before these findings can be applied to the relevant law.
Liability
The plaintiff left school at the age of 14 and has mainly had jobs of a labouring and/or transport variety since then. He had an accident at work in 1982 and injured his back and was off work for some nine years. He went back to work in April 1991 and, from then until the accident, was involved in driving heavy vehicles. In particular, he drove road trains using his "C" class driver's licence. By the time of the accident, he was an experienced driver of this type of vehicle. He obtained the job with the defendant in early 1995 through his brother‑in‑law.
The job involved driving from Port Hedland to Woodie Woodie and return, carting manganese. The defendant had a contract with Arrowsmith Transport. The jobs involved a 16 hour to 20 hour round trip on a very rough road which caused a number of blowouts and broken axles. The vehicles were used virtually non‑stop. The plaintiff drove every
(Page 6)
second day and an alternative driver, John Casserly, drove the other day; they drove the Mack truck. It was the plaintiff's evidence that the truck went everyday, seven days a week, although the defendant later said that it was five to seven days a week. I am satisfied that the truck was driven virtually constantly, with the odd day when it was not being used. On three or four occasions while the plaintiff was driving the truck, it could not be used due to major problems developing including the blowing out of the turbo, and damage to the gearbox and back springs. The plaintiff said that he did do some mechanical maintenance work, but that every second trip, the truck was put over the pit and the defendant and his team did the maintenance work on the truck.
As to the right front door, the plaintiff said that from the time he began with the defendant, (some time before the accident), it had no door handle and an adjustable pair of pliers was attached to the door used to open the door. Because the door was jamming, the method used was to pull the handle back and hit the door with one's right shoulder with a "lot of force". The plaintiff said the hinges were worn and the door had dropped. The plaintiff complained to the defendant about six times or more about the fact that the door was not opening properly and a new door handle was needed. In reply the defendant would tell him that the door handle was "on back order". In about June 1995, a new door handle arrived. It was curved and approximately four inches long; dye cast and about 1‑1/2 centimetres wide. The plaintiff said that the provision of the new handle made no difference to the difficulty opening the door because it was still necessary to use force on the door to make it open. One or two trips before the accident, the plaintiff told the defendant that the new door handle was making no difference; the defendant told him that he would do something about it when the roads closed, for example, by flooding ie. the repairs were to be done later in the year.
The plaintiff described the accident. He was driving the truck from Port Hedland to Woodie Woodie and was called on the CB radio by another truck driver, one Paul Hitchcock. He suggested to the plaintiff that he (the plaintiff) may have lost a spare tyre. The plaintiff advised Hitchcock that he would stop and have a look. At the place described the plaintiff stopped the truck. He was exiting the truck and placed his right hand on the door handle with his ring finger laying along the door handle; he bumped the door with his right shoulder, pushing downwards as he did this; the door handle snapped off about one centimetre beyond the connection. The plaintiff described how, in order to apply force to the door, more weight was placed on the door handle and the handle was used, in effect, to lever his shoulder into the
(Page 7)
door. The jagged edge cut through his little ring finger some 3/4 inches into his hand. He had blood on his legs and shirt and, when he got out of the truck, he fainted and fell on the ground after having seen the blood. Mr Hitchcock came along several minutes later and after assisting the plaintiff, drove him into Woodie Woodie for treatment. The plaintiff ultimately drove the truck back to Port Hedland.
In cross‑examination, the plaintiff agreed that the roads were very rough and shook the truck badly and said that just before the accident, some things shook loose and fell off because of the state of the road. He was adamant that the door handle was not in place when he began and that a pair of multigrips was used. He confirmed that just before the accident there was a call from Mr Hitchcock advising him that they had found a tyre and he stopped on the side of the road, not at the truck stop, and parked on a slight angle down to the left. He said that he did not bang the door with his whole weight, which was then 105 kilograms, and confirmed that as he pushed the door with his shoulder, he pushed the handle downwards and the handle broke; in this movement the door opened. He confirmed that he told Mr Hitchcock how the accident occurred. He also told the defendant but he denied telling the defendant that he had stopped to relieve himself and had "done a silly thing" by putting one hand on the steering wheel and all his weight on the door handle as put to him in cross‑examination. He said that when he got back to work, after the accident, the broken handle was still on the door.
The plaintiff said that for the whole time he worked for the defendant he (the defendant) never adjusted the doors. The left hand door, he said, was sometimes hard and sometimes easy to shut.
The plaintiff confirmed that he had made six to eight complaints to the defendant about the state of the door, without success.
In re‑examination the plaintiff explained that when he tried to open the door on the day of the accident, he remained seated but lifted off his left side to a degree.
The plaintiff struck me as being a fairly simple person and there was nothing in his evidence which suggested to me that he was doing other than attempting to give a truthful account as to what had occurred as to the accident.
Mr Trevor Wayne Phillips was also employed by the defendant and drove the white Mack during 1994 or 1995. He did not drive at the same time as the plaintiff. He said that there was a problem with the driver's
(Page 8)
side door of the Mack truck in that sometimes it did not open and a good "hit" was required to open it. "Many times" one would have to lean out the window, press the button outside and give it a "hit" to open the door. Once or twice he had to get out the window because the door was jammed shut.
Mr Phillips said that there was lot of pressure put on the handle of a door when you gave it a hit in order to open the door. Although he had been required to kick the door open, mostly, he said, one's shoulder was required to open the door. When he drove the truck there was no door handle on the right hand door and multigrips were used, but he found it easier to lean through the window, give the door a bump and press a button on the outside to open the door. As the plaintiff also told me, Mr Phillips also complained to the defendant about the lack of a door handle and he was also told that it was on order. He saw no one working on the door and could not recall any modifications being made to make the door easier to open and close.
After the accident, he complained again to the defendant about the door handle, having found that found that the broken handle was in the way as he drove and because of the sharp edge, he would have to keep his leg out of the way in order to hit the door with his shoulder. He was generally critical of the maintenance of the truck and said that sometimes, the brakes were not fixed to the extent that several times he drove without brakes. Mr Phillips agreed, in cross‑examination, that he was the plaintiff's brother‑in‑law and had got him the job. He agreed that the roads were rough and that the doors, if loosened, could be tightened. He said that he never tightened the doors. He said he did some maintenance on the vehicles if the defendant was unwell.
I noticed that there was an absence of cross‑examination of Mr Phillips as to some important matters particularly as to the state of the right hand handle and door, and the methods used by them to overcome these problems. Although rather colourful, and perhaps prone to exaggerate on occasions, I found Mr Phillips to be a straightforward and apparently honest witness who corroborated the evidence of the plaintiff in some important respects.
Mr John Robert Ernest Casserly worked in 1995 for the defendant as a truck driver and had driven trucks for some years before that. He began before the plaintiff commenced with the defendant. He did the same job as the plaintiff, using the same Mack truck. He confirmed that when he first started, there was no door handle at all on the right hand
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door and, after a while, a pair of multigrips was used. The door was not easy to open and he used the expression that you had to "nudge the door" at the same time fairly hard, depending on whether one had the position of the "handle" right. He described it as quite a difficult door to open. The frame to the door, he said, was broken in a number of places. Mr Casserly made a number of complaints to the defendant about the difficulty of opening the door, more than a dozen, mostly before the accident, but some after the accident.
Before the accident Mr Casserly said the multigrips "went missing" and a shifter spanner (kept on the dash) was used to open the door. He remembered a door handle being put on the door a couple of weeks before the accident. The new handle made no difference to the difficulty in opening the door; he told the defendant it was not so much a problem with the handle, but the frame of the door itself. He got the impression that the defendant was not particularly interested, that he would not listen to people at all, and nothing was done to correct it.
After the accident, according to Mr Casserly, nothing was done to replace the handle; he, in fact, repacked the door-locking mechanism to bring the latch out to make it more operative and easier to open and close. He agreed that maintenance of the usual sort was done on the vehicle as far as he could see, but no real work was done on the truck. He never saw any maintenance on the driver's door and the door never opened in such a way as to suggest to him that maintenance work had been done on it.
He had previously offered to work on the door when the road was washed out because he had had previous experiences as a panel beater, but the defendant was not interested in this offer.
Ultimately, he said, there was a new door handle put on, but the door still required to be opened in the way he had previously described - so far as he was concerned, it was not the door handle that was the problem, it was the difficulty in opening the door itself.
In cross‑examination, Mr Casserly confirmed that the road was very rough and things were shaken off the truck. He told the defendant that it was near on impossible to open the door. Mr Casserly observed that whether or not it opened depended on how lucky you were. He felt that the difficulty with the door had nothing to do with the trips themselves. After the broken handle had been left on the door, he was not injured by it by being "bloody careful". He agreed that he blew a turbo on his last trip and left it on the side of the road and collected his pay and quit the
(Page 10)
defendant. I got the impression that he was annoyed with the way in which he had been dealt with by the defendant.
Mr Casserly gave me the impression of being a very straightforward and honest witness who also confirmed the plaintiff's evidence in a number of respects, save that he gave a different version as to the force required to open the door.
Mr Paul Hitchcock was employed by another sub‑contractor (Mr Bill Pyeman), carting manganese; and he drove an identical truck to the Mack. He drove every second day and had no difficulty opening the driver's side door on his truck. He said the road was pretty rough, but his door did not stick.
On the day of the accident, he picked up a tyre on the side of the road and called up the plaintiff on the VHF (the tyre was on the plaintiff's side of the road). He suggested the tyre may have fallen off the plaintiff's truck. Later on, he drove past and saw the plaintiff's parked vehicle and a driver lying on the road, trying to pick himself up. He stopped and saw it was the plaintiff, white in the face; he had blood on his hand and had fallen out of the truck. Mr Hitchcock strapped the plaintiff's hand – he (the plaintiff) was very shocked. From memory, he thought he had been told that the lock had been snapped by the plaintiff. He said that the area where the plaintiff had stopped was fairly flat with a small gradient with no camber.
Mr Hitchcock was not cross‑examined at all. His evidence is significant in that it corroborates the evidence of the plaintiff as to the circumstances which existed before the plaintiff stopped. Mr Hitchcock also confirmed that the front door of his Mack truck was not difficult to open, notwithstanding that it operated on the same road as the plaintiff's truck. He was a reliable and honest witness.
The defendant has had a long experience with trucks and, in particular, Mack trucks. The Mack truck had been purchased in 1990 and was used until about six months ago. He told me that the road to Woodie Woodie was very rough, causing difficulties to springs and shockers and required the necessity to adjust the doors and to keep them tight. The cab, he said, developed a few small cracks; these were welded up and the cab "put back where it should be originally." He denied that anyone (including the plaintiff) made complaints about the condition of the door. Contrary to the evidence of the plaintiff and other witnesses, he said that there was a door handle in place until it was broken; thereupon
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he ordered a new one. He denied that multigrips were there after the accident until a new door handle had been put in.
He recalled the day of the accident. The plaintiff arrived back and told him that he had pulled up to relieve himself and had done a "very silly thing" ie. he had held on to the driver's wheel and lifted himself off the seat and put all his weight on the door handle until it broke.
The defendant did maintenance work with his son and one Robbie Martin.
The defendant took the broken door handle off immediately after the accident - contrary to the evidence on behalf of the plaintiff and had no idea of where it had got to. He had telephoned a man by the name of Mr Pegnelli and bought a new one.
In cross‑examination, the defendant said that people did not complain about the door before the accident. In fact, no one complained. He was asked about adjusting the door handle and could not say how often this had happened and could not remember whether he had altered the door. He did not keep maintenance records because he did not have to. He agreed that when the latch was adjusted, it would have made the door more difficult to open but it did not take very much force to open the door. He, himself, had probably got in and out of the truck everyday in the yard. So far as he was concerned, there was never any difficulty opening the door of this vehicle. He then said that hinge changes would not make it any more difficult to open the door. In the course of his cross‑examination, he had a very aggressive attitude and appeared intent on answering to avoid any suggestion that he was at fault. He gave evidence as to the contractual arrangements and it is clear that the more work the trucks did, the more income was received by him. He was questioned as to the replacement of the door handle and the circumstances of it and his evidence was unsatisfactory, in my view, on these matters. As to the door itself, the defendant said that if there was difficulty in opening it, you could wind down the window and use the handle from the outside. This was contrary to the evidence he had given before. He denied that it was necessary to give the door a "belt" to open it. Sometimes, he said there was difficulty pressing the handle down and, later, said that multigrips were there for one trip and one day after the accident. Contrary to Mr Phillips' evidence, he did not rely on that job and never had that contract and did not work after the accident. As to Mr Casserly's evidence, he did not remember him working adjusting the door.
(Page 12)
The defendant's demeanour and answers to questions, particularly in cross‑examination, was such as to suggest he was an unreliable witness. There are a number of matters in respect of which I was not particularly happy about his evidence. In relation to the question of the circumstances of the accident itself, I have considerable doubt as to the evidence of the defendant as to what the plaintiff said to him upon his return Port Hedland. For example, the plaintiff said that he had heard that he had lost a tyre and had stopped to check this - this being so, it is more probable that he would have stopped in an area not a certified rest area for this purpose - if the plaintiff was in fact going to relieve himself, one would have thought that he would have waited to stop in a proper stopping area. Further, the evidence of Mr Hitchcock tends to confirm the circumstances behind the plaintiff's explanation. The statement suggested by the defendant to have been made by the plaintiff in light of the evidence generally, and my observations of the defendant, have lead me to conclude that he has deliberately invented the explanation by the plaintiff to avoid any possible criticism for the accident.
Mr Walter James King is a service manager from Truck World and has many years of experience of Mack trucks. He saw two door handles of the sort sold for Mack trucks and had never seen one snap. The door handles, he said, were a dye cast material. Mr King was an honest and reliable witness.
Mr John William Ingham was also a workshop foreman from Truck World who gave similar evidence to that of Mr King and was also an honest and reliable witness.
Mrs Julie Heather Arrowsmith was the contractor for whom the defendant worked and said that he was a regular and reliable contractor and that his trucks did not break down anymore than anyone else's. She took the matter no further.
Mr Damian Leslie Moss worked as a road-train driver for the defendant for some 12 months beginning on 30 January 1996 some six months after the accident. He described the road as shocking, the corrugations were such that they were sometimes 1‑1/2 feet to two feet deep and you would have to drive very carefully to avoid them. Various things were broken in the course of the driving. He had driven the white Mack truck and never had any difficulty opening the driver's door. He never had to bump it open or kick it open with his feet. In cross‑examination, he could not recall seeing the defendant working on
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the door. Mr Moss appeared to be an honest witness, but as with Mr Phillips, I found him rather prone to exaggerate.
Before dealing with the evidence of the expert, Dr Chew, it is appropriate to make certain findings as to the circumstances prior to, before and after the accident concerning the truck. I note that the evidence as to the important factual matters on behalf of the plaintiff, is preferable to that relied upon by the defendant and he, in particular, I repeat was an unreliable and unsatisfactory witness. An examination of the evidence and a consideration of the witnesses, their demeanour and other aspects confirm the following, in my view:
1.The defendant was running a business, the aim of which was to maximise the profits arising out of the contract by getting as much use out of the truck as possible.
2.This meant that the truck was being used almost continuously on extremely bad roads.
3.The result of this was that there was a considerable amount of vibration and wear and tear on the cab of the truck and also, therefore, the right hand door of the truck.
4.The door was in poor condition and had a considerable tendency to jam when attempts were being made to open it.
5.The conventional method of opening a door, namely, simply turning the handle and pushing the door out were not adequate.
6.It was necessary to apply force to the door from the side and from above the lock in order to open the door on most, if not all, occasions.
7.The defendant had a rather laissez-faire attitude to repairs and maintenance to the door of the truck.
8.For some time prior to the new handle being put on the door, there was no handle at all and makeshift methods were used to simulate a handle.
9.After the new handle was put on the door some weeks before the accident, the difficulty in opening the door remained and the method was required as already mentioned.
10.There were forces required to be applied to the handle which could never have been contemplated or intended by a manufacturer of the handle ie. forces were applied from the side and from above, and in a forceful and jerking manner in order to force the door open as the handle was pushed down.
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11.At the time of the accident, the plaintiff was seated in the cab and opened the door as he described ie. by placing his hand on the handle, lifted himself slightly off the left side of his seat and pushing his weight against the door from the side; at the same time, pushing the handle down when it broke in the manner he described.
Dr Stephen Chew is a chartered professional engineer and has expertise relating to the testing of materials and the calculation of forces necessary to cause materials to break. He investigated the matter and prepared two reports dated 10 May 2001 (Exhibit 2A) and 28 May 2001 (Exhibit 2B). His opinion was sought on three matters:
1.The force required to snap a door handle in half as alleged by the plaintiff.
2.Whether the truck being parked on an angle would have had any effect on these or difficulty associated with turning the handle and/or opening the door.
3.Whether the door handle could have snapped in half by a person weighing approximately 105 kilograms (which was the plaintiff's weight) putting either considerable force or all their body weight on to the handle.
Having performed the test as described, he found that using two door handles, one which was said to be new and one used door handle, confirmed that the door handle was able to withstand a 206 kilogram force without breaking if the test force was applied 20 millimetres from the end of a door handle. He believed that two possible hypotheses could explain why the door handle broke in the accident.
1.The door handle that broke had a smaller load bearing capacity and was, therefore, different to the two door handles tested.
2.If the door handle that broke had a similar design and was made from similar metal as to the two door handles provided to him, there was a pre‑existing crack on the door handle at the time of the incident and this crack could have developed from a manufacturing defect.
He confirmed that it was not possible to test these hypotheses because the broken door handle involved was not available for examination.
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As to the three above matters upon which he was asked to comment on by the defendant, his answers were as follows:
"1.The force required to snap a truck door handle in half as alleged by Mr Gliddon.
If the truck door handle is similar to the two door handles provided to me, and if there is no pre‑existing defect on the door handle, the force on balance of probabilities will be larger than 206 kg. If further comment is required, it will be necessary to determine the chemical composition, grade and mechanical properties of the door handle's metal so that the force required to break the handle can be estimated by calculation. This requires either the chemical analysis of the door handle's metal, or obtaining the technical specifications from the door handle's manufacturer.
2.Whether the truck being parked on an angle would have had any effect on the ease or difficulty associated with turning the handle and/or opening the door.
There is no difference in so far as the force needed to be applied on the door handle to turn it to open the door is concerned. However, it will be more difficult to open the door about its hinges.
3.Whether the door handle could have snapped in half by a person weighing approximately 104 kilograms putting either 'considerable force' or all their body weight onto the handle.
The results of the simulation tests are consistent with it being highly improbable for the door handle to snap in half by such a person if there is no pre‑existing defect on the door handle."
In his second report dated 22 May 2002, Dr Chew confirmed that without knowing the body posture of the plaintiff at the time he applied the force on the door handle, and whether he is right or left hand dominant, it was difficult to comment on the force he was likely to have exerted and felt that on the information and the theoretical maximum force which could have been applied to the handle by someone like the plaintiff would be 105 kilograms of force.
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Dr Chew was cross‑examined and confirmed that he had assumed that the force was applied directly downward in the course by the plaintiff. His test involved pushing the force down at the slow speed with a constant descent with the force slowly increasing at a rapid rate. If the faster impact is involved, the impact rate would be obviously increased and the force required to break the handle would be reduced, possibly up to half, but, so far as the plaintiff was concerned, by a figure of 1.1 to 1.2 times.
Dr Chew's evidence was significant in that it confirmed that given the tests carried out by him on two door handles supplied to him, a person of the weight of the plaintiff would not have been able to break the door handle if the plaintiff had been applying the force in the same manner and in the same circumstances as those involved in the test. There are, however, a number of difficulties in accepting and relying upon the expert evidence of Dr Chew in this matter:
1.There was no evidence to corroborate the purchase of any door handle by the defendant.
2.There was no evidence that the door handle installed on the truck was of a similar type to those given to Dr Chew ie. that it was a door handle of a particular manufacturer and type. It is quite possible that the door handle that broke had a smaller load bearing capacity and was different to the two door handles tested, as Dr Chew hypothesised in his first report.
3.Dr Chew did not see the truck, nor did he test the door involved in this particular matter.
4.The simulated tests conducted by Dr Chew did not take into account a number of matters peculiar on the date of the accident ie. the position of the plaintiff sitting in the seat, the various types of forces exerted upon the handle by the plaintiff ie. not only from above, but also from the side. For example, the force required and the rate which the force was applied to the door and, therefore, the handle, in the course of attempting to open the door in question.
5.The fact that the same type of forces had been applied to the door handle for some weeks before the accident - this was not repeated by Dr Chew at the time of his tests.
6.The fact that a sudden force was applied to the door by the drivers, whereas Dr Chew's test involved a slow application of force.
In my view, therefore, that the tests carried out by Dr Chew and his evidence generally are of little assistance to me in the consideration of this
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matter - it is not appropriate for me to conclude that the only way in which the door handle could have broken in the particular circumstance of this case was because of a latent manufacturer's defect as the defendant has suggested, not only through Dr Chew's reports, but also in its pleadings.
In general terms, however, the evidence demonstrates very strongly, in my view, that the cause of the door handle breaking in this case was connected largely, if not wholly, due to the difficulty with opening the door itself. As I have already found, the door was in a poor state and difficult to open; it required repair and the application of unusual forces which would have also been applied to the handle itself. This was done for several weeks before the accident and by men who weighed in the region of 100 kilograms. I repeat my view that the door itself was poorly maintained and was in a poor condition and, in my view, the breaking of the door handle was a result of a combination of the poor condition of the door and as a result the unusual manner which was required to open the door.
On the basis of these findings it is appropriate to apply them to the relevant law.
The general rule applicable in cases such as this was that enunciated by Mason J in The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40 at pp 47 - 48:
"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.
(Page 18)
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."
Dealing in particular with accidents caused by equipment which may be faulty or unsuitable for its task Kirby J in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 160 – 161:
"An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence."
Clearly the defendant owed the plaintiff a duty of care to ensure that the Mack truck was safe for the plaintiff's use in the course of his employment. Further there was a duty owed by the defendant to inspect the equipment from time to time and maintain it to detect any risk of failure or deterioration and to correct such failure or deterioration.
In the present case it is my view that the continued condition of the right door as described by the plaintiff's witnesses and the failure to correct that and to provide a proper unlocking mechanism amounted to a breach of those duties. In particular the defendant failed to provide the plaintiff with safe plant and equipment as alleged in par 10(a)(ii) of the statement of claim and failed to properly and adequately maintain the truck before requiring the plaintiff to operate it as pleaded in par 10(a)(iii) of the statement of claim.
The problems with the door were such that there was a foreseeable risk of injury to the plaintiff and a failure to take reasonable and sufficient
(Page 19)
steps to ensure that normal and proper use of the door did not cause injury to the plaintiff in the course of his employment.
I have already found that the condition of the door and the unusual method required to open it notwithstanding the provision of the new door handle by the time of the accident, caused the injury to the plaintiff's hand. It is clear that the damage likely to be suffered by the plaintiff as a result of the defendant's breach of the above duty of care was reasonable foreseeable and was within the type of damage referred to in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402. It is obvious that inherent in my findings is the view that if the door to the Mack truck had been repaired and kept in proper condition in the sense that it was opened without unnecessary and unusual force being applied, the handle which was supplied to the defendant would not have snapped in the way in which it did.
The crux of this case is of course, the condition of the door. Once it is found that the door was in an unsafe condition and that an unusual force and method of applying that force was necessary to operate the door handle, the precise cause in scientific and technical terms of the breaking of the handle does not need to be shown.
In this case, as I have found because of the defendant's breach of duty to the plaintiff in the manner already mentioned, the door handle was subjected to forces and methods of application of such forces which could not have been contemplated or envisaged by the manufacturer.
It follows that in my view the defendant has been in breach of the contract of employment between it and the plaintiff and also has been negligent in its operation and inspection and maintenance of the truck.
As to the allegation that the defendant breached s 19 of the Act, at the least it is on the findings above, the defendant has failed in my view to provide and maintain a workplace, plant and system of work such that, so far as practicable, the plaintiff was not exposed to hazards arising from the condition of the door.
The plaintiff therefore has established that the defendant is liable to compensate him for the injuries received by the plaintiff in the accident and its sequelae.
(Page 20)
Damages
The plaintiff told me in his evidence-in-chief that he had his hand bandaged when he arrived at Woodie Woodie and then drove the truck back to Port Hedland. His hand was numb during that drive. He initially went to the hospital in Port Hedland and was referred to Mr Bruce Allbrook, a plastic surgeon. He operated on the plaintiff's hand to fix a damaged nerve and the plaintiff was initially off work for approximately 10 weeks. He went back driving for the defendant and shortly after left and went to a job with Key Transport which he said was a better job. He was able to drive for a while and then his fingers began tingling and a lump began to grow in the palm of his hand and his fingers he said began curling downwards. This was towards the end of 1995 or the beginning of 1996. He had a week off and went again to see Mr Allbrook and was advised he needed an operation on his hand. The plaintiff wished to continue his work until the pipeline on which he was working was finishing in about July 1996 so he booked an operation with Mr Allbrook around that time. By the time of that operation his finger was very very numb and tingling and sensitive. The lump was about the size of a marble and protruding out of the palm of his hand between his ring and middle finger. He suffered extreme sensitivity and soreness in his ring finger. The operation to remove the lump occurred around August 1996 and this did not seem to assist him. He had further treatment to his hand and he began to have symptoms with the skin and palm of his hand. He contacted Mr Allbrook and a further operation took place‑ he amputated the plaintiff's ring finger.
He has continued to have symptoms and problems with his hand and fingers generally in his right hand since that time. He is unable to move his middle finger and has difficulties with a number of activities using his right hand. He has some difficulty cutting up meat, for example which is "tough", and in other activities at home. He said he failed a work test with an organisation known as "Work Dynamics" in about 1997. He does drive a motor vehicle but not in Perth. He finds that he can only drive with his left hand and does not like putting his right hand onto the steering wheel. In effect he drives one handed. He feels that he is unable to drive a truck because of the problems with his right hand. He takes Panamax tablets to control the pain in his hand, usually on a daily basis, but about once or twice a week he takes more than two per day. He has also been prescribed Endep to assist his moodiness which has arisen since the accident. He wears a glove on his injured hand to stop his hand from swelling and sweating and this stops his finger rubbing against the stump he has. The glove was recommended by a physiotherapist (Judith Wilton)
(Page 21)
to whom the plaintiff was referred by Mr Allbrook. He wears the glove all day and sometimes while he is asleep. The glove may last about three months.
He had never really thought about retirement plans but thought he would have worked until about 65 years of age. He had minimal assets and he was in pretty good general health.
In cross-examination the plaintiff said that he did suffer from hypertension and had medication for that but did not think he had any other current medical problems other than the difficulties with his right hand.
That was the only cross-examination which went to the plaintiff's physical injuries and the effect of the accident upon him in that area.
There is a book of medical reports (Exhibit A) which reports set out the history of the treatment given to the plaintiff, and the various opinions as to the plaintiff's condition.
The plaintiff originally saw a surgeon in Port Hedland, Mr Peter Van Duren, who confirmed that the plaintiff lacerated the web space between the fourth and fifth finger of his right hand. The digital nerve to his ring finger was divided and Mr Bruce Allbrook, plastic surgeon, was at the hospital at the time and he carried out a microsurgical repair of the damaged nerve. Subsequent reports from Mr Allbrook confirmed that operation, the fact that the plaintiff was referred to Judith Wilton for physiotherapy and that the plaintiff was having problems with the nerve area. The development of the neuroma which formed at the repair site was commented on by Mr Allbrook and this was carried out by Mr Allbrook on 1 August 1996. In September 1996 Mr Allbrook noticed that the plaintiff had generalised insensitivity from mid palm down to the entire ring finger and that percussional palpitation in that region gave him very uncomfortable pins and needles. This parasthenia was prohibiting him from working at that stage. In October 1996 Mr Allbrook felt that the plaintiff was unable to return to his normal employment although it might be possible that he could undertaker part-time truck driving duties on a part-time basis. He referred him to Dr John Salmon, pain specialist. By January 1997 Mr Allbrook felt that amputation of the plaintiff's ring finger was indicated as it was significantly interfering with the function of his hand and gets caught regularly which causes more pain. Also it was necessary to debride any residual phenol‑devitalised tissue. Further reparative work was planned. This work was carried out on 10 February
(Page 22)
1997 with the plaintiff having a considerable amount of post-operative pain and requiring further treatment. In April 1997 the plaintiff was still experiencing pain, swelling, colour changes in his hand and a variety of treatments were involved including physiotherapy, the use of a TENS machine.
As already mentioned the plaintiff had begun to see Dr John Salmon, pain specialist, in October 1996 and various treatments were given by him including phenol injections, a TENS machine, physiotherapy and pain blocks.
Further, morphine infusions were used in May 1997 and cervical spinal stimulating electrodes were used in an attempt to lessen the plaintiff's pain. These were unsuccessful. As can be seen Dr Salmon attempted a variety of treatments for the plaintiff which largely were unsuccessful and in the end Dr Salmon advised the plaintiff that further management should consist of physiotherapy and he said he should examine suitable alternative activities and hobbies to avoid the preoccupation with his pain and his inability to return to work as a truck driver.
Mr Alan Lazarus, a clinical psychologist, saw the plaintiff on several occasions and although the plaintiff initially presented as being despondent about the failure of the medical treatments and generally, he had improved in September 1998 despite his ongoing levels of pain and discomfort.
The plaintiff had been referred also to Mr Jeff Ecker, orthopaedic surgeon, for advice and treatment and ultimately Mr Ecker summarised the position in his report of 1 March 2001. At p 43 of the book of medical reports Mr Ecker confirmed that after testing, the plaintiff's right hand demonstrated profound weakness. He was of the view that there was an 83 per cent loss of strength in the plaintiff's right upper limb translating to a 30 per cent disability of that limb. It was Mr Ecker's view that the plaintiff had become permanently incapacitated as a result of the accident and was permanently unable to return to his pre-accident occupation as a truck driver. It was Mr Ecker's view that:
"(The plaintiff) could return to a full-time altered job if he could be given a job where he did not have to use his right hand. However, Mr Gliddon is 55 years old and the possibility of him obtaining a meaningful and effective job on a permanent basis is remote. He has no formal trade, education or qualification
(Page 23)
and has worked his entire life as a labourer, shearer, plant operator and truck driver. He is right hand dominant and as such it is my opinion that he will be unable to return to any of these job descriptions in the long-term. His age also makes it highly improbable that he can be effectively rehabilitated into the workforce on a full-time basis."
It was also Mr Ecker's view that there was no effective treatment which had a high probability of alleviating or improving the pain in the plaintiff's right hand."
These opinions were confirmed by Professor Andrew Harper (occupational physician) in his report of 15 October 1999. Other medical specialists have confirmed these opinions. As to the plaintiff's psychological and psychiatric condition the plaintiff saw Dr Frederick Ng on 4 October 2001 for an assessment and the provision of a report. That report from Dr Ng is dated 4 October 2001. Dr Ng was of the view that the plaintiff suffered from a psychiatric condition which he described as a "chronic adjustment disorder with depressed moods". This condition he said was related to the accident and the subsequent injury and loss of functioning, disfigurement and chronic pain which he suffered as a result of the accident. This would affect his ability to work and at that time he felt the plaintiff did not require psychotropic medication but was at the risk of developing a major depressive disorder in the future in which case this would require medication. The stress resulting from these matters Dr Ng felt would continue for the foreseeable future and as a result his chronic adjustment disorder would also continue for the foreseeable future.
It is clear that the plaintiff has suffered a variety of consequences as a result of the injury to his hand and it is appropriate to infer that this has affected his general enjoyment of life. It is also clear that he has been denied the ability to work in his chosen occupation and to enjoy jobs involving the use of manual skills.
It is appropriate, in my view, an appropriate figure by way of general damages to compensate the plaintiff for these various matters is the sum of $40,000.
I now turn to the question of loss of past earnings and earning capacity. There was a limited amount of cross-examination directed at the plaintiff as to these matters. It had been clear from the plaintiff's evidence-in-chief that he had only had jobs involving truck driving and/or
(Page 24)
labouring skills although for a short time in one job he had done some limited overseeing work. He had no formal education and was obviously not qualified to carry out anything that required basic clerical functions. He confirmed in cross-examination that he had worked for several companies and that he had had an accident at work in 1982. He had been off work and began looking for work in about 1991 or 1992. It appeared from his evidence generally that he had recovered sufficiently to be able to work as a truck driver around that time without difficulties particularly involving his back. The plaintiff confirmed that after the amputation of his finger and treatment for that he had a job offered to him from an organisation known as Centarion, a trucking firm, but they would not take him because he was not 100 per cent fit. He has not looked for any work himself nor has he looked for any supervisory work. As already mentioned the plaintiff had done some supervisory work in the past. That was the extent of the cross-examination of the plaintiff as to these matters.
The plaintiff, notwithstanding the immediate effects of this injury continued to work for about a year after having several weeks off work.
Thereafter, he did not resume work, or looking for work after the amputation of his finger.
It is submitted on behalf of the defendant that the plaintiff may not have established any basis for concluding that he has not been able to find alternative employment, and that he will be similarly unable in the future.
On the other hand, counsel for the plaintiff has confirmed that the plaintiff has never undertaken supervisory work in the accepted sense, and that his training in any form of work other than truck driving and similar work is non-existent. Also, and I accept this submission, it was said that the plaintiff's work ability and prospects were so affected by the accident and its sequelae that it would have been a waste of time, in effect, for him to seek work.
There is ample evidence, therefore, upon which I can conclude that since the plaintiff stopped work he has been incapable of work in any of his pre-accident occupations and is still so incapable.
Further I consider that the chances of the plaintiff returning to work in the future are so remote that he should be regarded as unemployable for the purposes of calculating future loss of earnings.
As to the basis upon which past loss of earnings and loss of future earning capacity should be calculated, I have considered the plaintiff's
(Page 25)
work history up to the accident and the period thereafter, and his tax returns the subject of Exhibit B. Counsel for the defendant commented on the evidence, interrogatories (Exhibit 3) and the tax returns and submitted that a figure of $885 per week was too high as a starting point for these calculations.
The plaintiff's counsel suggested that three possible bases could be gleaned from the evidence – these appear in the schedules provided.
It is clear that upon the plaintiff's return to work after the accident he was able to earn more at Key Transport than he earned whilst working for the defendant although there is no real indication or evidence that such earnings were common in the industry or would have continued indefinitely. I am unable to find a sufficient basis upon which to conclude that the rate of pay with Key Transport would have continued indefinitely. I consider that the rate set out in "Scenario I" in the schedule is appropriate, i.e. $810.55 per week. Bearing the earnings at Key Transport in mind such a figure was certainly attainable by the plaintiff.
There was no challenge to the calculation based on a period of 322.84 weeks at $810.55, making a figure of $261,677.96 (not $261,684.88 as calculated in the schedule).
As to the claim for part superannuation entitlements there will need to be some discount to reflect the receipt by the plaintiff of payments on a prescribed basis – a figure of 10 per cent is appropriate. Using the method of calculation in the schedule, and allowing for a future 30 per cent deduction for fund administration (see Jongen v CSR (1992) Aust. Torts Reports 81-191) this gives a figure of $16,869.36.
In calculating interest payable on past loss the principles set out in Fox v Wood (1981) 35 ALR 607and Watts v Turpin (1999) 21 WAR 402 are applicable. Using the calculations in the schedule a figure of $35,472.30 results.
The component of past loss under Fox v Wood (supra) was agreed at the sum of $27,561.18.
As to the question of future loss of earning capacity it is not appropriate in my view, to make any allowance (and hence deduction) for the effects of the plaintiff's earlier back injury. It is clear that the plaintiff made a full recovery from this injury and was able to work for several years until his 1995 work accident. Also, there is no evidence that the plaintiff's hypertension or knee problem affected his ability to work.
(Page 26)
The appropriate base calculation is $873 x 367.23 (the relevant multiple) making a figure of $320,591.80 (not $320,588.32 as in the schedule).
The appropriate figure, for loss of superannuation benefit using the same method as above, is $25,506.60.
On the basis of the evidence I am prepared to accept the figures submitted by the plaintiff's counsel as to future medication cost - I do not accept, however, that the plaintiff's psychiatric condition is such that he will need future counselling and medication - no allowance will be made for this.
The sum thus awarded under this lead is $15,776.65.
As to any deduction for contingencies, a number of factors suggest such a deduction is appropriate including the periods off work from time to time and the number and variety of the plaintiff's employers. A deduction in the amount of 10 per cent is appropriate.
Special damages have been agreed at $34,911.80.
The plaintiff will thus be awarded:
General damages $40,000.00
Past loss of earnings $261,677.96
Part loss of superannuation $16,869.36
Interest on past loss $35,472.30
Fox v Wood allowance $27,561.18
Future loss of earnings
(less 10 per cent) $288,532.62
Future loss of superannuation
(less 10 per cent) $22,955.94
Future loss of medication
(less 10 per cent) $14,198.99
Special damages $34,911.80
Total$742,180.00
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