Green v WA Access Pty Ltd
[2006] WASCA 119
•27 JUNE 2006
GREEN -v- WA ACCESS PTY LTD [2006] WASCA 119
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 119 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:45/2005 | 2 JUNE 2006 | |
| Coram: | MARTIN CJ STEYTLER P WHEELER JA | 27/06/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEVEN GREEN WA ACCESS PTY LTD |
Catchwords: | Appeal Tort Negligence Standard of care owed Whether failure to provide a guardrail breached the relevant standard Turns on own facts |
Legislation: | Nil |
Case References: | Tame v New South Wales (2002) 211 CLR 317 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Dhu v Total Corrosion Control Pty Ltd [2002] WASCA 173 Garrett v Nicholson (1999) 21 WAR 226 Jones v Dunkel (1959) 101 CLR 298 Mifsud v Campbell (1991) 21 NSWLR 725 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Wyong Shire v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GREEN -v- WA ACCESS PTY LTD [2006] WASCA 119 CORAM : MARTIN CJ
- STEYTLER P
WHEELER JA
- Appellant
AND
WA ACCESS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FRENCH DCJ
Citation : GREEN v WA ACCESS PTY LTD
File No : WADC 64 of 2005
Catchwords:
Appeal - Tort - Negligence - Standard of care owed - Whether failure to provide a guardrail breached the relevant standard - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms H E Prince
Respondent : Mr A P Hershowitz
Solicitors:
Appellant : Chapmans
Respondent : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Tame v New South Wales (2002) 211 CLR 317
Case(s) also cited:
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Dhu v Total Corrosion Control Pty Ltd [2002] WASCA 173
Garrett v Nicholson (1999) 21 WAR 226
Jones v Dunkel (1959) 101 CLR 298
Mifsud v Campbell (1991) 21 NSWLR 725
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
(Page 3)
Wyong Shire v Shirt (1980) 146 CLR 40
(Page 4)
1 MARTIN CJ: This is an appeal from the decision of the District Court of Western Australia dismissing the appellant's claim for damages for personal injury which he suffered on 10 June 1998 in the course of his employment by Everett Smith and Co Pty Ltd.
2 The appellant is an electrical fitter. On the day he suffered his injuries, he had been directed by his employer to assist in the performance of electrical cabling work at the Livingston Shopping Centre. The work required access to an area near the ceiling of the premises. In order to obtain that access the appellant was standing on a scissor lift supplied by the respondent. A scissor lift is essentially a mobile scaffold or platform which can be raised upwards by the operation of a mechanical device which has a scissor action. The working platform has a safety rail at approximately waist height and is controlled by means of a joystick fitted with a safety switch which is located on a control box positioned at about the level of the safety rail at the front of the platform. The safety switch must be engaged by depressing a lever or trigger handle attached to the joystick before the joystick will operate the platform.
3 In addition, on the control box on which the joystick and safety switch are located, there is a red emergency button which immediately stops the operation of the platform when pressed.
4 On the day in question, the appellant was working with a fellow employee on the platform pulling electrical cable up and across steel roof beams. In the course of that exercise, the appellant leant forward as he was pulling the electrical cable, and as he did so, some part of his body - being either his hip or upper leg, touched the joystick and the scissor lift rose, pinning him between the roof beam and the safety rail on the platform.
5 At the time this occurred, the appellant's arms were above his head, where they had been engaged in pulling the cable across the roof beam. Because of the position in which he was pinned, he was unable to retract his arms to reach the joystick or emergency button, or to remove that part of his body which was in contact with the joystick and thereby giving rise to the continuing upward pressure of the platform. Eventually his fellow employee came to his rescue, and moved him away from the joystick, and then used the joystick to lower the platform, releasing the appellant.
6 Mr David Calvert gave evidence at the trial. The trial Judge found him to be an electrician by trade with over 20 years' experience, and who had been working as a serviceman for the respondent for 10 years, over
(Page 5)
- nine of which he had been engaged in the service and repair of scissor lifts.
7 As the trial Judge found, he had attended the construction site soon after the accident and inspected the control box from the relevant lift. He immediately noticed that the safety switch behind the trigger handle was jammed or "stuck in", which meant that it did not perform its function of preventing the operation of the lift unless the trigger handle was depressed. In evidence which the trial Judge accepted, Mr Calvert also said that in the nine years he had been servicing scissor lifts of this kind, this was the first time he had encountered a safety switch which had been stuck in the "on" position - "on" meaning, in this context, that the switch had been engaged, with the result that movement of the joystick would operate the platform without the trigger (or dead man's handle as it is sometimes called) having to be depressed.
8 There was initially a dispute between the parties as to the cause of the safety switch being stuck in the "on" position. Two experts were called to give evidence on that topic - a Dr Chew and a Mr Simms. In the end, both agreed that the most likely cause of the switch having been jammed in the position I have described was the intervention of a fragment of dirt of microscopic proportions within the working mechanism of the switch itself, and the trial Judge so found.
9 Although evidence was given by Dr Chew to the effect that enclosure of the switch inside a rubber boot or casing would have prevented the intrusion of dirt, Mr Simms expressed a different view, and stated that such a casing would not prevent a transient and microscopic piece of dirt from causing a malfunction of the switch, and is not without its own other difficulties. The trial Judge accepted the evidence of Mr Simms on this issue, and no complaint is made in respect of her finding in that regard.
10 Although there are five separately enunciated grounds of appeal, during the course of argument, counsel for the appellant accepted that the gravamen of the appeal was the following proposition. That is, that the trial Judge should have found that the risk of undetected failure of the safety switch was such that a reasonable person in the position of the respondent would have taken the step of protecting persons in the position of the appellant from risk of injury, in the event of such a failure, by encasing the control box with a guard-rail which would reduce the risk of accidental engagement of the joystick as a result of being brushed or leant upon by workers on the platform. Such a guard-rail was, in fact, installed
(Page 6)
- following the events which gave rise to the appellant's injuries. I refer to the reduction of risk of accidental engagement of the joystick because it is clear from the photographs of that guard-rail which are in evidence that because of the need to provide access to enable workers to operate the joystick, even with the guard-rail in place, there are situations and circumstances in which the joystick might be accidentally engaged by contact with the body of a worker if the safety switch was malfunctioning.
11 The essence of the appellant's argument concerned the use by the trial Judge of the evidence given by Mr Simms. Mr Simms' evidence was to the effect that when he attended the respondent's premises for the purposes of his inquiries he was given a container with a dozen or so failed safety switches in it. The appellant argues that the trial Judge should have used this evidence to arrive at a fundamentally different conclusion to that at which she had arrived in reliance upon Mr Calvert's evidence, and that she should have instead concluded that the risk of undetected failure of the safety switch was sufficiently likely to justify the conclusion that a reasonable person in the position of the respondent would have installed a guard-rail in the discharge of the duty of care owed to persons in the position of the appellant.
12 I digress to briefly explain the reason for my repeated use of the expression "undetected failure" in relation to the safety switch. I use that expression because the uncontradicted evidence of Mr Simms was to the effect that a safety switch could fail in one of at least two ways - namely, in such a way that it was permanently "on", in the sense that I have described, in which event the joystick would operate the platform without the trigger handle having to be depressed or, alternatively, permanently "off" in the sense that the safety switch could never be operationally engaged, with the consequence that the joystick would not operate the platform at all. A failure of the latter kind would obviously be detected as soon as any worker went to operate the platform, and would be unlikely to be the source of risk of injury because the effect of the failure would be to prevent the platform operating at all.
13 However, a failure of the former kind could go undetected because a worker depressing the trigger handle and then operating the joystick would not, by that operation alone, appreciate that the switch was in fact permanently engaged, and therefore providing no inhibition upon the operation of the platform, irrespective of whether the trigger handle was depressed.
(Page 7)
14 It is presumably for this reason that the operational procedures specified by the respondent require a daily safety check before the commencement of operation of the platform each and every day. As the trial Judge found, it was a term of the written agreement between the respondent and the appellant's employer that the appellant's employer ensure that daily checks were undertaken to ensure the safe operation of the equipment. Item 15 of the written list of daily safety checks prepared by the respondent required the operation of the safety mechanism to be checked by operating the machine and seeing if the operation stopped when the dead man trigger was released. Although there was controversy at trial (which the trial Judge did not expressly resolve) about whether the appellant had in fact undertaken the safety procedure at the commencement of work on the day he suffered his injuries (his name was endorsed on a form to the effect that he had undertaken the check but he denied that he had in evidence), there was ample evidence to sustain the conclusion that it was standard practice to commence a day's operation of the scissor lift with the safety checks prescribed by the respondent, including the safety check to which I have referred.
15 Returning to the appellant's basic argument, the first difficulty with the argument is the paucity of the evidence pertaining to the circumstances in which the dozen or so switches came to be in the container given to Mr Simms. It seems that the first reference to these switches was in the first report of Mr Simms, dated 21 July 2003, in which he referred to a number of switches which had been cut open for inspection. In his evidence-in-chief, Mr Simms stated that he had taken away a number of switches that had been removed from other controllers of the same type and cut them in half so that he could open them up and look inside them [T228]. He was cross-examined in relation to the switches he was given in the following terms:
"I think you said you were shown a number of other switches as well?---I was actually given a number of switches. I think I was given three or four switches, at my request, to section and look inside, because I took the view that three or four switches was a reasonably statistical sample, if you like, of switches to see whether ingress and build-up of dirt was likely to occur.
WA Access, the defendant here, gave you those switches that were to be examined?---Yes, they did. Yes.
At your request?---At my request, yes.
(Page 8)
- You dissected all of those switches they - - -?---I believe I did dissect all of those, yes.
I think you mentioned some of them were broken. Is that right?---Yes, I'd probably use the term "broken" meaning they didn't function. Yes.
Why didn't they function, are you able to say?---Not reliably. My recollection is that probably in all of the cases, they'd broken down internally. These things have a little sort of over-centre lever and spring mechanism. I think in almost all of them, if not all of them, the springs had broken, so they just went in and didn't come back out again.
I think you've indicated in your report, and I'll just summarise, that as far as you're concerned you don't know these things are going to happen until they happen. Is that right?---When you say 'these things', do you mean - - -
That the switch is going to fail?---That's right. Switches fail spontaneously and there's no way of anticipating that other than by statistical means.
Did you ask WA Access if they had any other broken switches?---I don't quite understand the question, because they showed me a box of broken switches that accumulated over time, replacements.
How big was the box, can you remember?---It was an ice-cream container and I couldn't tell you how many switches were in it - probably a dozen - of that order.
But notwithstanding you don't know when a switch it [sic] going to malfunction, you do know as a fact that they will malfunction?---Well, we don't know as a fact they will. I mean 'will' in terms of reasonable service life. I mean if the switch basically lasts until the machine is scrapped, then it hasn't malfunctioned. In terms of how long a typical life of these switches is, I can't tell you other than they last a relatively long time. Obviously its usage depended if you were using it more often." [T240 - 241]
16 Mr Simms was asked some more questions on this topic by counsel for the appellant at the completion of his evidence:
(Page 9)
- "You mentioned the question - or in answer to one of the questions posed to you by her Honour, that of the switches you observed that were broken, there were some broken springs?---Yes.
The springs are those that forced the button back out, aren't they?---That's correct, yes.
So if the spring is broken then the button may not be forced back out?---That's correct. If the spring breaks, the thing will cease to work."
- after which Her Honour posed the following question:
"FRENCH DCJ: Sorry, when you say 'cease to work', would that mean it would be stuck in the 'on' position?---I use 'cease to work' in the general sense that it will no longer work as intended. So in other words it will either not work at all or will stay permanently on, due to being jammed in there."
18 It can be seen from this evidence that put at its highest, it would only enable the conclusion that over an indeterminate period in respect of an indeterminate number of machines, 12 switches had apparently failed in circumstances which were not identified, with one or other of the two possible consequences to which I have referred. The evidence only needs to be summarised in this way for it to be shown to be an unsound basis for a challenge to the trial Judge's finding of fact, based upon her acceptance of Mr Calvert's evidence, which was to the effect that failures of these switches were extremely rare.
19 There seems to me to be a second major difficulty with the appellant's argument on this topic. The failure of the switch does not, of itself, necessarily pose a risk to the safety of the operator of the machine. As I have observed, if the switch fails in a way which prevents the
(Page 10)
- machine from operating at all, that fact will be immediately apparent to any operator, who will not be exposed to any risk, because the machine is inoperative. Thus, failure of the switch will only pose a risk to the safety of an operator if the failure goes undetected, because the switch is, unbeknown to the operator, failing to perform the function of only enabling the machine to be operated when the trigger handle is depressed. But, as I have observed, there was a daily procedure for checking the function of the switch in that regard, by requiring the machine to be operated and then releasing the trigger handle. If the machine did not thereupon come to a stop, it would be apparent that the switch was not functioning. If this procedure was followed at the commencement of operation each day, it follows that an operator would only be exposed to risk for that portion of the day after which the switch had failed and before the next safety test the following morning. Thus, for an operator to suffer injury by reason of the failure of the switch, there would have to be an accidental or inadvertent displacement of the joystick during that period of time between the undetected failure of the switch and the next safety test the following morning. This is another factor which seems to me to amply justify the finding of the trial Judge to the effect that the failure of the switch in such a way as to pose an appreciable hazard to an operator was an extremely rare event.
20 I have already drawn attention to the unresolved issue as to whether or not the appellant had, in fact, carried out the prescribed safety check on the morning of 10 June 1998, which was the day of the accident. The trial Judge did not make any express determination of that issue. However, it seems to me that it was unnecessary to do so, because the evidence clearly established that there was a procedure of daily safety checks, including the check to which I have referred, and that in the ordinary course of events, those checks were carried out. In that circumstance, if such a check was not carried out on a particular day, due to inadvertence or oversight by a particular worker, this would not seem to me to indicate any want of care on the part of the respondent. Put another way, I could not disagree with the conclusion of the trial Judge to the effect that the procedure of daily safety checks required by the respondent as a term of its agreement with the hirers of its equipment was an entirely adequate and reasonable response to the very low risk established by the evidence.
21 The adequacy or reasonableness of the steps taken by the respondent in response to the risk of failure of the switch also falls to be assessed having regard to the presence of the emergency button which was also located on the control box, thereby providing an alternative means for any
(Page 11)
- operator imperilled by the operation of the machine to bring it to a sudden halt.
22 Finally on this topic, the appellant's case centred on the proposition that the standard of care required of the respondent in these circumstances necessitated the installation of a guard-rail of the kind that was, in fact, installed following the incident which injured the appellant. However, as I have observed, the nature of the operation of the joystick required that the guard-rail provide at least one plane of access to the joystick, with the result that inadvertent body contact with the joystick would still remain a possibility, as the photographs in evidence revealed.
23 Further, Mr Simms (a witness whose evidence the trial Judge generally accepted) gave evidence that a guard-rail could bring unanticipated problems of its own. He gave as an example the possibility that something might fall onto the control box and be captured between the joystick and the guard-rail, thus causing the machine to move in the same way as inadvertent contact between the body of the operator and the joystick.
24 For these various reasons, I do not accept the fundamental argument advanced by the appellant. That fundamental argument is inherent in each of grounds 1, 2 and 5 of the grounds of appeal, which I do not consider made out. Ground 4 of the grounds of appeal essentially concerns the question of whether there had in fact been a safety check on the day in question which, for the reasons I have given above, does not appear to me to be critical to the resolution of the case, given the uncontradicted evidence of established procedure. I therefore reject that ground.
25 The third ground of appeal was a complaint of inadequate reasons. However, counsel for the appellant properly conceded that if the fundamental argument which I have identified and rejected failed, ground 3 could not avail the appellant of itself, and I need not therefore consider it any further.
26 This is not a case in which the existence of a duty of care was at issue. It was common ground between the parties that the respondent owed a duty of care to persons in the category of the appellant. Accordingly, it is not a case in which we need to consider the foreseeability of risk, or the question of whether it is necessary, as a matter of law, to categorise the degree of risk as far-fetched or fanciful in order to conclude that no duty was owed. Rather, this is a case which is concerned entirely with the question of the standard of care owed by the
(Page 12)
- respondent to the appellant. At that point of inquiry, the question essentially becomes whether the respondent's conduct was such as to create an unreasonable risk of harm to persons in the category of the appellant. In Tame v New South Wales (2002) 211 CLR 317 at [102], McHugh J stated:
"Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge."
28 The appeal should be dismissed. It is, accordingly, unnecessary to consider the respondent's notice of contention which raised issues relating to contributory negligence.
29 STEYTLER P: For the reasons given by the Chief Justice, with whom I am in agreement, I would dismiss the appeal.
30 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of the Chief Justice. I agree with those reasons and have nothing to add.
0
15
1