Griffiths v Steele
[2017] VSC 795
•20 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MILDURA
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 01458
| ADAM GRIFFITHS | Plaintiff |
| v | |
| PAUL STEELE | Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Mildura |
DATE OF HEARING: | 20–21 July and 24–25 July |
DATE OF JUDGMENT: | 20 December 2017 |
CASE MAY BE CITED AS: | Griffiths v Steele |
MEDIUM NEUTRAL CITATION: | [2017] VSC 795 |
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NEGLIGENCE – Personal injury – Plaintiff injured when his foot was run over by a Manitou telehandler driven by Defendant – Breach – Identification of risk of harm – Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 applied – Causation – Contributory negligence – Civil Liability Act 2002 (NSW) ss 5B, 5D and 5R.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Stone SC and Mr G Clark | Ryan Legal |
| For the Defendant | Mr K Rewell SC | Moray & Agnew |
HIS HONOUR:
Introduction
The Plaintiff, Adam Griffiths, and the Defendant, Paul Steele, were part of a work crew employed by BMD Constructions Pty Ltd (BMD) engaged in performing concreting work associated with the construction of a new bridge on the New South Wales approach to the Murray River near the township of Euston. Mr Griffiths was steadying a section of formwork suspended from the boom of a Manitou telehandler when Mr Steele drove the vehicle forward. The right front wheel of the Manitou ran over Mr Griffiths’ right foot causing a crush injury. Mr Griffiths brings this action alleging negligent driving of the Manitou by Mr Steele was a cause of the accident and his injury. Mr Steele denied negligence and, in the alternative, alleged Mr Griffiths was contributorily negligent.
The principal factual issues in dispute at trial were:
(a) Did Mr Steele beckon Mr Griffiths to approach the Manitou and steady the load? Was Mr Steele aware of Mr Griffiths approaching the Manitou?
(b) On which side of the formwork was Mr Griffiths standing when the Manitou was driven forward?
On the second day of the trial the parties advised that damages had been agreed.
What happened
On 10 June 2014, Mr Griffiths commenced work as a labourer with BMD on the Euston bridge project. Also working on the site was the supervisor Ashley Martin, his father George Martin, Mr Steele who was second in charge, dogmen Mr Greg Simmonds and Mr Scot Evans, and site engineer Mr Sundip Sinha.
When each worker started work on the site he signed a BMD document headed ‘Work Method Statement–Incorporating Health, Safety and Environmental Risk’ (WMS). One hazard identified in the WMS was ‘collisions with plant and personnel’. A number of management controls were specified in response to that hazard, including maintenance of a 15 metre exclusion zone between the moving plant and personnel.
Each morning at a pre-start meeting attended by all workers on site, Ashley Martin would go through the work to be done that day. Toolbox meetings were also held every week or two to discuss particular issues. At a toolbox meeting attended by Mr Griffiths and Mr Steele on 8 July, one topic discussed was eliminating plant/people interaction. On the day of the accident, Mr Griffiths and Mr Steele attended the pre-start meeting. Mr Griffiths agreed the pre-start and toolbox meetings provided an opportunity to raise any safety issues in relation to that day’s work, and that the 15 metre exclusion zone was reinforced on days the Manitou was to be used.
Prior to 10 July, a section of the concrete structure of the bridge under construction known as abutment A had been poured. The task to be performed by the BMD crew on 10 July was stripping formwork from abutment A and transporting the sections of formwork to an area of the worksite where they were to be cleaned and stacked. The formwork, called shutters, were heavy framed timber sections, held in place by bolts and nuts to form the correct size and shape for the concrete structure being poured. The shutters varied in size.
The Manitou is a four-wheel mobile crane known as a telehandler. It was used at the worksite to transport loads slung from a boom. The Manitou boom can be raised and lowered, extended and retracted, but cannot swivel. The boom runs down the centre of the Manitou. Loads are attached to the end of the boom and are carried in front of the Manitou. The extent to which the boom can be safely raised or extended depends, among other things, on the weight of the load being transported. The driver’s cabin of the Manitou is located to the left of the boom, almost directly behind the left front wheel.
Five workers were tasked with stripping the shutters from abutment A, cleaning and stacking them. The dogmen, Mr Evans and Mr Simmonds, worked at abutment A to undo each section of shutter and secure it using a system of chains and hooks to the Manitou boom. Mr Steele drove the Manitou to transport the shutters from abutment A to the cleaning and storage area. George Martin worked at the cleaning and storage area where he unhooked each shutter as it was delivered. There was dispute as to whether Mr Griffiths worked only at the cleaning and storage area, or whether he also spent some time assisting Mr Simmonds and Mr Evans at abutment A.
The shutters were held in place at abutment A by Z-bars with locknuts on them, which stopped the wall spreading with the weight of the poured concrete. To remove the shutters the Manitou was first driven by Mr Steele to a position close to abutment A and the shutter to be removed was attached to the Manitou boom by Mr Simmonds or Mr Evans using brackets and chains. A claw hammer was used to crack the Z-bars to free the shutter, allowing it to be lifted from the abutment by the Manitou. Mr Steele then reversed the Manitou away from abutment A before driving forward up a slope and along a section of unsealed road to the position the shutters were to be cleaned and stacked. The distance between abutment A and the storage area was estimated by Mr Griffiths at 30 metres, and by Ashley Martin and Mr Steele at approximately 15 metres. Mr Griffiths described the unsealed road as undulating.
The brackets and chains used to attach each shutter to the Manitou boom led to a central ‘bull ring’ and ‘D shackle’, which allowed the shutter to swivel easily through 360 degrees. The system of chains attaching the shutter to the Manitou boom allowed the shutter to sway and move about while it was being transported by the Manitou.
Shortly before the accident a large section of shutter was rigged to the Manitou, and Mr Steele reversed the Manitou from abutment A ready to proceed forward to the area where George Martin was working. Mr Griffiths approached the front of the Manitou to steady the shutter, which was raised with the bottom edge about 30 centimetres off the ground. The shutter was at an angle to the front of the Manitou, with the right end of the shutter close to the right front wheel of the Manitou. Mr Griffiths was at the right end closer to the Manitou. Mr Steele drove the Manitou forward and the right front wheel of the Manitou ran over Mr Griffiths’ right foot.
Adam Griffiths
Mr Griffiths said the general site rule was that workers should not be within 15 metres of the Manitou while it was operating. Mr Griffiths agreed he read and signed the WMS when he started work on the Euston bridge project and that the statement included a requirement to maintain an exclusion zone around all mobile plant. He said he understood that requirement was imposed because it was a possible danger zone. There were exceptions to that rule he said. When rigging a load to the Manitou, workers would be within 15 metres. A worker required to hold and control a shutter to stop it from swaying while it was being transported by the Manitou would be within 15 metres.
Mr Griffiths said the Manitou was used on site almost every day, and was driven by Mr Steele. He said he had previous experience with the movement of shutters and other formwork by a Manitou in a job where he had worked as a labourer, the same as with BMD. Mr Griffiths said if the surface was uneven, a shutter could move very dramatically while it was being transported by the Manitou. He said someone was always steadying the shutters unless they were small, that it was part of his job to help steady the shutters, and he had helped in that way 30 or 40 times while working for BMD. Mr Griffiths said he had also seen Mr Evans perform the same task. Mr Griffiths said when his assistance was required to steady a shutter that was being transported it was requested in the following manner:
… it was hand signals and gestures to come over or word of mouth, to come in and help.
He said those hand signals were given by the driver Mr Steele, and:
… I would hang onto the shutters and control them from swaying and moving around and bouncing by hand.
Mr Griffiths said he would communicate with Mr Steele with signals and eye contact while he was holding the shutters and the Manitou was being driven.
Mr Griffiths said in the month he was at the site, prior to his accident, he had not seen the Manitou used with a spotter, and he had not seen a load transported by the Manitou with guide ropes on it to allow it to be controlled.
Mr Griffiths said immediately prior to the accident he was working at abutment A when:
… I was tapped on the shoulder by Scotty, and he said, “Look down to Paul,” and I then made contact with Paul and Paul’s waved me down.
Mr Griffiths demonstrated a beckoning gesture. He said at the time a large shutter was rigged to the front of the Manitou, and there was little extension of the boom, so the shutter was close to the front of the Manitou. He said the shutter was suspended from the boom roughly in the direction of travel of the Manitou, but at a slight angle to the right front of the Manitou. Mr Griffiths said he understood he was being summoned by Mr Steele to steady the shutter.
Mr Griffiths said he approached the Manitou from the front left side, to the left of the shutter. He said he first grabbed the left end of the shutter, then moved along the shutter with his back to the driver to the right end to stop it from swaying. Mr Griffiths was shown the following diagram illustrating a shutter suspended from the Manitou boom, and he said the diagram accurately shows the position of the driver and the shutter, but said he was on the opposite side of the shutter to the man in the diagram.
Mr Griffiths said he had the shutter under control and was at the right end of the shutter, with his back to Mr Steele, when the Manitou moved forward without warning and the right front tyre ran over his right foot. Mr Griffiths estimated he was at the shutter for between 10 and 20 seconds before the accident occurred. He said the wheel came halfway up his leg and dragged him down, he was screaming and waving his arms, he did not think Mr Steele heard him, but probably saw his hand or his arm and reversed a little bit. An ambulance was called and he was treated at Mildura Base Hospital.
Mr Griffiths said he did not recall Mr Schkurat from BMD coming to see him in hospital on the day of the accident, but remembered him visiting the following day. Mr Griffiths said he was on pain medication, and he did not recall any of the things he discussed with Mr Schkurat at the hospital.
Mr Griffiths agreed the toolbox meetings provided an opportunity for workers to raise any safety concerns. He said he did not think he had ever raised any concerns himself at those meetings, and he did not recollect anyone raising concerns about transporting the shutters with the Manitou.
It was put to Mr Griffiths in cross examination that shortly before the accident Mr Steele did not signal to him to approach the front of the Manitou, and he disagreed. It was put to Mr Griffiths that he approached the front of the Manitou on the far side of the shutter so that he could not be seen by Mr Steele, and he disagreed, and said that he was always on the side of the shutter in Mr Steele’s line of sight. He said he first grabbed the shutter at the left end, but moved to the right end because he felt more comfortable holding it with his right hand and because of the way it was moving.
It was put to Mr Griffiths that after a shutter was rigged to the Manitou boom, and the Manitou reversed away from abutment A, the shutter would normally be perpendicular to the front of the Manitou and Mr Griffiths disagreed saying the shutter can swing in any direction on the chains and if the Manitou hits a bump the shutter can bounce around. Mr Griffiths said the shutters always move around, and cannot be stopped unless someone is holding them. It was put to Mr Griffiths that there was nothing that could be damaged by the shutter if it moved around, and he disagreed saying it could hit the tyres or the front of the Manitou, or could hit whatever was in front of it while it was being moved, and could cause damage:
to the formwork, to the machine. If it’s – if he’s driving forward, it could bounce off the chains and fall off the chains and crush somebody. The ends are limitless.
It was put to Mr Griffiths that on the day prior to his accident Mr Steele moved some shutters from abutment A by using a system of raising them high enough with the Manitou boom so that Mr Steele could see where he was going and where he was delivering the shutter, and Mr Griffiths agreed Mr Steele might use this system if he was transporting smaller shutters on his own, but disagreed that Mr Steele could use that system for larger shutters, repeating it was necessary for somebody to steady the larger shutters. He was asked:
It wasn’t necessary at all, was it?––No, well, we always – I always helped steady the shutters, that was part of my job.
It was put to Mr Griffiths that it was absolutely critical if for any reason he had to go within the 15 metre zone that he maintain eye contact with the driver of the Manitou, and he agreed. Mr Griffiths said he made eye contact with Mr Steele as he approached the Manitou. He said it was not possible to maintain eye contact with the driver at all times if you were steadying the shutter because that would involve walking backwards. He was asked:
Well, firstly, why would you go to a position where you had your back to Mr Steele having regard to the imperative of keeping eye contact? Why would you do that?––Ah, because I’m walking forward with him. So, I’m not going to walk backwards while I’m holding it, so I – I’ll trip over.
Nicole Griffiths
Mrs Griffiths said she was at the hospital with her husband on the day of the accident when Mr Schkurat and another person from BMD visited, and the next morning at about 11.00 am when Mr Schkurat came back accompanied by a different person. Mrs Griffiths said on the evening of 10 July Mr Griffiths had compartment surgery, and on 11 July his foot was still open and he was high on morphine. During the visit on 11 July she saw Mr Schkurat take notes, and she asked him for copies of the notes and other relevant paperwork. She said she did not receive copies of the documents and she pursued that issue with telephone calls and emails, but received no response.
Mrs Griffiths said Mr Schkurat was with Mr Griffiths for at least an hour. She said Mr Griffiths was asked the question ‘how he thought the accident could have been prevented?’, to which he replied that if the arm of the telehandler had been further out it might not have occurred, or if there had been more training, or if there had been a spotter. Mrs Griffiths said Mr Schkurat kept pushing the issue and Mr Griffiths became agitated and said, ‘If you want someone to blame, blame me.’ Mrs Griffiths said Mr Griffiths had had enough and he was getting quite upset. In cross examination Mrs Griffiths was asked:
You said that the questions and answers flowed up to a point where the question was asked to this effect, “How could the accident have been prevented”?––Yes.
And it was at that point Adam became agitated?––It wasn’t at that point, it was after when Darren kept pushing it. Like, Adam was giving him answers, but Darren kept pushing for more out of him, and that was when Adam said, “Look, mate, if that’s – if you’re trying to blame someone, I was in the wrong place at the wrong time.”
Did you hear Mr Schkurat ask this question: “What do you think caused the incident or accident”?––Yes.
Did your husband say, “My approach to the telehandler”?––No.
What did he say?––He said that when he got to the – to the telehandler and he was holding the shutter, the telehandler moved and it crushed his foot.
That’s what he said in, “What do you think caused the accident”?––Yes, but it was – it wasn’t as straightforward as what he’s written there.
Paul Steele
Mr Steele said his more recent work experience had been in bridge construction, and that he was licensed to drive plant such as the Manitou. He said he started work for BMD on the Euston bridge project about two months before the accident in which Mr Griffiths was injured. He said he previously worked on construction of the main bridge over the Murray River with Baulderstone Hornibrook. Mr Steele was asked the following questions about his work experience:
How long had you had experience in driving a Manitou or some similar vehicle?––Oh, well, as coming from a farm, I’ve – I’ve always driven machinery and we used Manitous and that on the farm as well, so from a young age.
What about in the three other bridge projects, did you use for the purpose of that?––No, I didn’t on those ones, but other projects I’ve been working with and around and – yeah.
What about formwork of the kind that was used in this project? Were you familiar with that before the project?––Yeah, I’d been using that type of formwork for ten plus years.
And moving it by Manitou or some other form of telescopic handling?––Yeah, Manitou, crane, yeah.
This incident involved a particular Manitou that had been hired from Coates Hire; is that right?––Yep.
When did you start using the Manitou on this project?––It would’ve been delivered at the very start of the project, so just prior to me commencing employment there.
The impression given by Mr Steele was that he was experienced at driving Manitous in a construction site setting, including to transport formwork.
Mr Steele said that on the day of Mr Griffiths’ injury the work being performed was removing the shutters from abutment A. He said about five or six of the shutters had been removed the previous day. Mr Steele was asked:
From the perspective of the driver, was there any significant difference in how you moved a smaller shutter, as distinct from how you moved a larger one?--No, you’ve just got to go a bit steadier, a bit slower, and just take your time with the bigger ones.
Why?--Why? Just because, you know, they’re a lot harder to handle, and you’ve just got to control them a little bit more.
Mr Steele described the system he said he used to transport the shutters from abutment A to the storage area as follows:
I would position myself in the Manitou. It was could come into level ground, where I know I can reach by the right angle to get the hook above the formwork, and at this stage – in that time, I know where everyone is, because I’ve wide open view; do a headcount in my head, basically, to see where everyone is.
Just explain why you’re doing a headcount, and how you do it?––Just so I know where everyone is. If I can’t see anyone, I won’t go forward or reverse or move around if I don’t know where anyone is.
Who were you accounting for by your head count?––Basically, everyone in the working crew, everyone on site.
He said once he had made positive contact with other workers, they could approach the Manitou to do the work on the shutter to be moved, and this only occurred when the Manitou was stationary. Mr Steele said once the boom was extended to the correct position, the dogmen attached the shutter to the Manitou and gave him a hand signal to partially take the weight of the shutter. He would do that once he saw everyone was clear, or after receiving a signal from the dogmen. Then the dogmen could work to release the Z-bars and free the shutter from the abutment wall. Mr Steele said when the shutter was free and everyone was out of the way, he would back the Manitou away from abutment A with the shutter attached. Mr Steele said:
Once I’m down there, that’s when as long as everything’s steady and everyone’s in the positions they should be in, I can then crawl forward. As soon as I get to the top of the slope I can raise the shutter and have a full view underneath it.
Mr Steele said when the shutter was in the lower position he could not see anything to the front of the shutter, but only to the sides. He said once he got to the top of the slope he could raise the shutter so the bottom was a metre or a metre and a half off the ground, which would give him a view of about four or five metres in front of the shutter. He said he would then proceed at walking pace to the cleaning area. Mr Steele was asked what the driver could do if the shutter was moving around:
Was there anything the driver could or would do about that or not?––If it – if it was to move which it wasn’t out of control in this stage, all I would do is lower it and touch the ground which it stops it moving it instantly. You just.
And then after you’ve put it to touch the ground, what do you do next?––Touch the ground, you can just lift it again and it will lift up in control.
Mr Steele said he moved five or six shutters with the Manitou the day before Mr Griffiths was injured, and he did not have anyone walking alongside to stabilise the shutters.
Mr Steele said the accident happened when the first shutter was being moved that day. He was asked to describe what he did once that particular shutter was attached, and he said:
Ah, so once – once the dogman had hooked it up, I then did the normal check. When I assumed – I assumed Greg and Scotty were up where I could see them, George, and I assumed Adam was over with George.
He said he could not recall seeing Mr Griffiths at that stage. Once he received the signal it was all clear he reversed from abutment A down the incline. Mr Steele said the shutter was parallel to the front of the Manitou, was relatively steady, and there was nothing to stop him going forward. Mr Steele said he did not see Mr Griffiths push on the shutter, and he only saw the shutter and Mr Griffiths coming towards him, but then corrected himself to say he did not see Mr Griffiths until his foot was under the right wheel. Mr Steele said it was the right side of the shutter which came towards him, and this only happened as he was rolling forward, and he was totally unaware there was someone pushing it from behind until the last second. Mr Steele said he did not require assistance with transporting the shutter. He said Mr Griffiths was not on the driver’s side of the shutter, and had that been the case he would have seen Mr Griffiths and would not have driven forward when he did. He said the right end of the shutter moved towards the front of the Manitou, then about two seconds later he saw Mr Griffiths falling. Mr Steele said he had only moved the Manitou forward one or two feet when that happened.
During cross examination Mr Steele agreed that when operating a Manitou on a worksite it was critical to do a head count to see where everyone was, and when that was physically impossible he said you use a spotter if needed. He agreed that on this occasion when he drove the Manitou forward he did not know where everyone was on the site and that he had no one working as a spotter. Mr Griffiths broke a critical rule, he said, by not making eye contact with Mr Steele as he approached the Manitou. He said the operator of the Manitou cannot always keep track of where everyone is and agreed, if that is the case, that you use a spotter. Later in cross examination Mr Steele agreed it was not part of the regular system on site to use a spotter.
Mr Steele was reminded of his evidence in chief that a load suspended from the Manitou would be lowered to the ground to stop it swinging, and he said he could not recall using that method on site. Mr Steele agreed it was common practice at the worksite that loads being transported by the Manitou would be held by hand to steady them. He said steadying loads could be done using ropes or by hand, but at the BMD worksite it was by hand. Mr Steele said it was not common practice for Mr Griffiths to walk alongside a load holding it, and as far as he recalled that was a task the dogmen did. Initially Mr Steele said this occurred when the dogmen were positioning the shutter, but later agreed it might occur when the Manitou was transporting the shutter a distance of 15 to 30 metres.
Mr Steele said that prior to the incident he obtained an operator Gold Card issued by the Telescopic Handler Association of Australia, which licensed him to drive the Manitou. He attended a two-day course to obtain the Gold Card, and agreed the course would have covered the safe set up and use of the equipment and safe load movement. Mr Steele agreed the Gold Card was issued on 19 May 2014 and that the Euston bridge project was the first job where he worked as a licensed telehandler.
Mr Steele agreed that it is important to familiarise yourself with the instructions before using a piece of machinery, and said he would have read the operator’s manual for the Manitou when it first arrived on site. He was shown the operation and safety manual for the Manitou, and agreed it looked familiar. Mr Steele was taken to two instructions which appear in the manual, ‘tether suspended loads to restrict movement’ and ‘do not raise the load more than 300mm above ground surface’, and he said he did not recall reading those, and that he ‘was working more under training and past experience’ when using the Manitou. He agreed it was possible he had not read that part of the manual. Mr Steele was directed to another safety practice in the manual which instructed operators to ‘look out for and avoid other personnel, machinery, and vehicles in the area. Use a spotter if you do not have a clear view’, and it was put to him that he did not use a spotter when he did not have a clear view, in response to which Mr Steele said:
Well, depending on – that’s what – that’s why the WMS is so important, is that people don’t come into your area. They make positive contact. If I know they’re there, I’m not going to move. This is why we have WMS, and this - it doesn’t cover everything. That’s why they’re in place: to cover other situations of a live area.
Mr Steele was taken to the next safety instruction in the manual which advised that ‘before moving, be sure of a clear path, and sound horn’, and he said he may or may not have sounded the horn before moving forward on the occasion Mr Griffiths was injured and agreed it was not part of his regular practice when operating the Manitou, and in this respect he was ignoring the manufacturer’s recommendations. Mr Steele agreed he could not have been sure the path ahead was clear when he moved, but said it was common industry practice to do it as he did. Mr Steele agreed it was not part of the work practice at the site to tether loads being transported by the Manitou, and this was ignoring the manufacturer’s recommendations, but Mr Steele said it was following industry practice. Mr Steele was asked:
And indeed, one of the safest ways to have the guide men getting nowhere near the telehandler is to supply them with taglines so they can stand well to the side. That’s right, isn’t it?––Yeah, depending on the situation, yeah.
Manual handling bears a much greater risk of people coming closer to the wheels of the telehandler, doesn’t it?––They would – they would come in closer, yes.
And especially with the boom at full [retraction] as recommended, it becomes even more important to have taglines out to the side to keep anybody providing guidance well away from the wheels?--Yes, it would.
Mr Steele agreed he was the one person on the BMD site with the responsibility of reading the Manitou manual.
Mr Steele was then taken to the WMS, and he said he believed he would have read it before he signed it. He was taken to the instruction in the statement ‘there should be a dedicated spotter, and no work should continue in the absence of a spotter’, and he agreed there appeared to be no exceptions to that instruction, and that it was part of his responsibility to ensure there was a dedicated spotter. Mr Steele said it was not common practice to have a spotter when driving around the worksite, and he agreed in that regard he routinely ignored the requirement in the WMS.
Mr Steele was taken to the next instruction ‘plant movement is not to be undertaken if the operator has not confirmed positive communication between themselves and surrounding workers and spotters’, which he agreed was his responsibility as the operator, and on this occasion he did not comply with that requirement. Mr Steele agreed the reason for a spotter was to help cover blind spots for the operator.
Mr Steele said he could not recall where or when he last saw Mr Griffiths before the accident occurred. He was asked:
It’s all very well to give orders, but you’ve got to do a head count of where people actually are, don’t you?––Try to, yes.
If you fail, don’t moved?––Well, I wouldn’t have moved if I didn’t know where everyone was.
So, where was he immediately prior to your backing up from abutment A?––I honestly can’t remember. It was three years ago.
He said after he backed the Manitou out he assumed everyone was in the position they were supposed to be in. Mr Steele said he believed he would have sought positive confirmation of everybody’s whereabouts before reversing the Manitou from abutment A, but he could not recall doing so, and he did not do so when moving forward.
Mr Steele was taken to a statement he wrote on the morning after the accident, he checked the statement and agreed that he made the statement and it was his chance to explain what had gone wrong. The following exchange occurred:
First of all, do you agree that there’s no mention in here of you operating without a spotter?––No, there’s no mention of it.
Do you agree that there’s no mention in here of Adam moving unexpectedly from a long way away from the shutter to being right next to it at the time of the impact; in other words, there’s no mention of him breaching the 15 m?––There’s no mention of it, no.
There’s no mention of him coming from some position outside the 15 m exclusion zone into the 15 m exclusion zone where he shouldn’t have been; you agree that’s missing from here as well?––There’s no mention of it, no.
Indeed, the only mention is first of all, the second answer, where you say, “Removing shutters from wall, reversing out, Adam’s flung shutter towards machine, stepping in front of wheel,” do you see that?––Yep.
And do you then see the entry – the second entry on the next page where it says, “Adam moved shutter towards machine instead of away, bring him closer to wheel”?––Yep.
Now, if Adam had been there at your invitation with his job being to move the shutter as you drove forward, those two answers explaining what had happened, would make sense, wouldn’t they?––It’s – yeah, but I’m not meaning he was supposed to be there. That’s not the way I read it and that’s not what I meant.
Well, to look at the second answer I took you to; when you say, he, “moved shutter towards machine instead of away,” you’re criticising him for moving in the wrong direction, is that correct?––I’m just – just saying that, obviously, said what I’ve said, that –
Well, what’s completely missing from this is, he shouldn’t have been there at all; that’s missing, isn’t it?––Well, it’s not written in there, no.
Mr Steele explained he was fairly nervous after the accident, and was shaken by it.
The witness statement handwritten by Mr Steele about one hour after the accident occurred includes the following questions and answers:
Please fully describe the incident sequence from start to finish:
Removed shutter from wall. Reversed out, Adam swung shutter towards machine. Stepping in front of wheel.
Note anything unusual you observed prior to or during the incident (sights, sounds, smells, etc.)
Nothing unusual
How did people influence the incident (actions, emergency response, etc.?)
Adam moved shutter towards machine instead of away, bringing him closer to wheel.
What do you think caused the incident?
Putting foot in front of wheel.
How do you think the incident could have been prevented?
Swinging shutter other way.
Ashley Martin
Ashley Martin was employed as foreman for the Euston bridge project at the time of Mr Griffiths’ injury in July 2014. He said in that role he conducted a pre-start meeting with the site crew every day. Toolbox meetings were held in response to flash alerts from BMD in relation to particular issues, and might occur once a week or once a fortnight. Ashley Martin identified a toolbox talk record for 8 July 2014, which he, Mr Griffiths and others had signed, and which included as a topic ‘Eliminate plant/people interaction’, which Ashley Martin said was ‘talking about keeping your distance from moving plant on the site’. He said the site rule was to keep 15 metres away from plant, and not to approach without positive communications. The only exception to that were the dogmen, because they are trained to work with machines. Ashley Martin said:
So positive communication means you’ve got eye contact or two-way radio, and you have an answer back from the operator. Therefore, becomes positive.
Ashley Martin said there were two mobile radios, the operator of the Manitou had one, and the dogmen the other. He said for people who did not have a radio, positive communication meant ‘eye contact or visual, and with a response’. Ashley Martin said another topic at the toolbox meeting was blind spots with plant and people around them. In cross examination Ashley Martin was asked whether the WMS was strictly adhered to on site, and he said it was. It was put to Ashley Martin that the Manitou was frequently used on site without a spotter, and he disagreed.
Ashley Martin said tag lines were used on site about 50 percent of the time when moving loads with a Manitou, depending on the weather. He agreed the Manitou might move with someone walking alongside, physically holding the shutter, and said this might occur in about 20 percent of loads. He said sometimes the load did not need to be held at all. Ashley Martin said on one occasion at the Euston bridge site he discouraged the practice of walking alongside the Manitou holding the load. He said he raised this at a toolbox meeting. He told Mr Evans not to do it because there was an incident in which Mr Evans put himself between the load and the Manitou.
Ashley Martin said he had never seen Mr Steele drive around the site with a shutter elevated 1.5 metres off the ground in front of the Manitou, and had he seen that happening he certainly would have said something about it.
Ashley Martin was asked:
And could a dogman safely monitor the surrounds of the Manitou driving from a Abutment A to the washing pile standing in the one spot or do they need to get out to keep an eye on the blind side for the driver of the shutter?––He could do it from where – from the one spot, yeah, with two way communications.
And that will allow them at all stages to see the blind side on the Manitou that the driver could not see?––Correct.
So how could Mr Griffiths get up to the blind side of the shutter if he’s being properly spotted and the dogman’s keeping on an eye on the blind side and in two way communication with Mr Steele?––I have no idea how he got there.
I want to suggest to you that the dogman wasn’t engaged in full-time two-way communication with the operator on this site, and that was a regular feature of the system. Do you agree or disagree?––I can’t answer that. I wasn’t there on that –
I want to suggest to you that for over a month that Mr Griffiths was working on site, there was plenty of times that the Manitou was moving around without a dogman being out and about, actively scouting the area in front of the Manitou and the blind spots of the driver. Do you agree or disagree?––I disagree.
Later Ashley Martin was asked:
Do you understand it is appropriate procedure for the Manitou operator, if they can’t see everybody on site, and they haven’t got the all clear from the dogman, who’s got their eyes on everybody in sight, then they shouldn’t move?––I do understand that.
And further on the same topic:
We will break it down. We agree that the dogman or the operator between them have to have eyeballs on everybody?––Yes, we agree.
We agree that if somebody is missing from that headcount, the Manitou doesn’t move?––Yes, we agree.
We agree that it takes positive confirmation between the two of them that they’ve checked off everybody in order for it to move?––Yes, we agree.
If they had done all of that properly, how does this move when somebody is standing right next to it?––Well, I have no idea. It shouldn’t - I don’t know.
Darren Schkurat
In July 2014 Mr Schkurat was the systems manager for BMD Constructions with responsibility for overseeing compliance, safety, HR and IR issues. On 10 July 2014 Mr Schkurat became aware that Mr Griffiths had been injured at the Euston bridge site, and as a consequence on the same day he travelled from Melbourne to Mildura to interview Mr Griffiths in hospital. Later that day Mr Schkurat travelled to Euston to investigate the accident circumstances.
Mr Schkurat said on the day after the accident he saw Mr Griffiths in hospital and completed an interview, which included obtaining Mr Griffiths’ responses to a set of questions on a BMD template witness statement form. Mr Schkurat said he made notes of Mr Griffiths’ responses and on about 12 July he typed up that information into a witness statement form. He said the interview took approximately 30 to 35 minutes. Mr Schkurat said the practice was that once the notes were typed up they were released back to the interviewee for review. He recalled there was a request that the statement be forwarded to Mr and Mrs Griffiths, but he did not recall Mr Griffiths asking for a copy of the handwritten notes. Mr Schkurat did not know whether a copy of the typed statement had ever been sent to Mr and Mrs Griffiths. The typed witness statement form with the date of interview, 11 July 2014, was tendered. It includes the following questions and answers:
Please fully describe the work and conditions in progress leading up to the incident:
Cleaning up timber, denailing timber and cracking Zbars.
Please fully describe the incident sequence from start to finish:
The telehandler was starting to commence forward and the shutter was moving, I was standing at the shutters (Stockpile) on the ground. A small amount of motion (of the shutters) I then walked up and I was standing in between shutter and the telehandler. I have then attempted to walk with the telehandler, I had eye contact with Paul, heard a call, came in and gave a hand.
Note anything unusual you observed prior to or during the incident (sights, sounds, smells, etc.)
No.
What was your role in the incident sequence?
I was performing labouring duties, I was part of the cleaning and stacking crew with George (George Martin).
What conditions influenced the incident (weather, time of day, equipment malfunctions, etc.)?
Nil (conditions were fine a cool morning).
How did people influence the incident (actions, emergency response, etc.?)
It was the first time, I had been involved in the stripping, I was unfamiliar with the process of stripping panels.
What do you think caused the incident?
My approach to the telehandler.
How do you think the incident could have been prevented?
I’m uncertain of how to stop it. I may have been able to standing in front of the telehandler.
The witness statement form does not bear a date of completion, and is not signed by Mr Griffiths or Mr Schkurat.
In cross examination Mr Schkurat said he undertook an incident cause analysis method investigation in relation to the incident. He agreed one of the concerns at the time was there might be a prosecution of BMD for breach of industrial safety law, but said that was not the primary concern. Mr Schkurat said he believed BMD’s processes and procedures had clearly defined methods to eliminate, or potentially eliminate, events such as the incident in which Mr Griffiths was injured.
Mr Schkurat said Mr Griffiths’ departed from the work safety statement by approaching a moving mobile piece of plant. Tag lines were not used at the time of the accident, and he said it was a matter for the dogmen to assess whether use of tag lines would introduce or remove a risk. Mr Schkurat agreed the operator’s manual gives no discretion in relation to tethering loads, but said discretion was in accordance with the dogging and rigging code.
Mr Schkurat said he was not familiar with the system of transporting shutters with the bottom of the shutter 1.5 metres off the ground, and he agreed loads should not be carried at a height greater than 300 to 400 millimetres off the ground. He said he was aware the operator’s manual prescribes the use of a spotter, and it was his understanding that one of the dogmen, either Mr Simmonds or Mr Evans, was acting as a spotter at the time of the accident. Mr Schkurat was asked:
Well, are you able to identify where the spotter was standing at the time of the accident?––My account from the incident investigation, yes.
So, where were they standing, relative to the front of the vehicle?––They were standing approximately 30 metres away to the, I don’t know, say, the right hand, the front right-hand corner of that piece of plant, near – adjacent to the (indistinct).
Did you satisfy yourself that the driver was having appropriate communications with the spotter as he drove forward?––I was.
Did you establish why the system broke down and that the spotter didn’t warn the driver that somebody was approaching the Manitou?––My understanding was that the person – in particular, Mr Griffith – was obscured.
Mr Schkurat said his recollection was Mr Griffiths approached the Manitou from 60 to 70 metres away.
Mr Schkurat was asked:
I want to suggest to you that the regular system work on this site involves people manually walking alongside the telehandler holding the shutters as it was in motion. Were you told about that?––That is not the – that is not the evidence that was produced to me.
Mr Schkurat was asked about some notes he made in a notebook, which included:
Paul driving [telehandler] with a load.
Adam escort shutter.
Adam stepped back into path of wheel.
Mr Schkurat said he either assumed Mr Griffiths was escorting the shutter, or he was informed at the time that was what Mr Griffiths was doing. He said when he wrote the note ‘Adam escort shutter’, he understood that at that time Mr Griffiths was performing his official duties.
Mr Schkurat agreed that during the interview on 11 July Mr Griffiths raised the absence of tag lines, and he said he did not include that in the statement because it was ‘not specific to the questioning that I undertook at that time’. Mr Schkurat agreed Mr Griffiths may have complained about the absence of a spotter. He was asked:
I am suggesting that is because you hadn’t established that anyone was actually acting as a spotter, as distinct from engaging in work - doing work elsewhere, some distance away?––I believe that’s incorrect. I had established that the dogman was acting as the spotter with the operator via two-way radio, in accordance with our procedures.
Work Method Statement
The WMS is a BMD document directed to the task/activity ‘working near mobile plant’. An ‘employee’s acceptance’ of the WMS was signed by Mr Steele on 26 May 2014 and by Mr Griffiths on 10 June 2014. One of the hazards addressed in the WMS was ‘collisions with plant and personnel’. The 28 management controls recorded in respect of this hazard include:
·Use designated UHF channels (Channel 15) on site.
·There should be a dedicated spotter and no work should continue in absence of spotter.
·There should be a minimum buffer between the moving plant and working personnel nearby.
·Personnel near a mobile plant should signal operator before changing his position.
·Plant Movement is not to be undertaken if the operator has not confirmed positive communication between themselves and surrounding workers/spotter.
·All personnel to stay 15m away from all mobile plant or vehicles until positive contact has been made with the plant operator – this is a mandatory exclusion zone.
·Plant operators to take responsibility for maintaining safety around their machines, and to stop works/put bucket down/make safe the area when any personnel approaches exclusion zone.
·Maintain a safe distance from moving vehicles/trucks/plant/telehandler (handwritten).
·Personnel on ground to make eye contact with plant operators before entering the exclusion zone or swing area of machine.
Manitou operator’s manual
One of the topics addressed in the operator’s manual is ‘general safety practices’. The following instructions appear beneath the subheading ‘Suspended Load’:
• Tether suspended loads to restrict movement.
•DO NOT raise the load more than 300mm (11.8in) above ground surface or the boom more than 45°.
A diagram appearing above these instructions depicts a roof truss suspended from the Manitou boom tethered by tag lines at either end, held by workers who are standing well out of the path of travel of the Manitou. Under the subheading ‘Travel Hazard’ the following instructions appear:
•Look out for and avoid other personnel, machinery and vehicles in the area. Use a spotter if you DO NOT have a clear view.
•Before moving be sure of a clear path and sound horn.
Witness statement of George Martin
A witness statement form completed by George Martin approximately one and a half hours after the accident includes the following:
Please fully describe the incident sequence from start to finish:
Waiting for Paul to drive with the shutter and drop on ground. Adam was giving a hand to hold the form. When George turned back he saw Adam lying on ground with right foot on telehandler [indistinct].
How did people influence the incident (actions, emergency response, etc.?)
Adam was giving a hand to hold the shutter.
What do you think caused the incident?
Stepping in the wrong direction.
How do you think the incident could have been prevented?
Moving forward instead backward.
An ‘incident sketch’ attached to George Martin’s statement depicts the accident scene. The shutter is shown at an angle of about 45 degrees to the front of the Manitou with the right end of the shutter closer to the right front wheel of the Manitou. A handwritten description on the ‘incident sketch’ reads:
Adam pushed shutter towards tele-h. Put foot in front of wheel as telehandler was slowly moving forward. Adam held shutter.
Robert Anderson
A report prepared under instruction from Mr Steele’s solicitors by Associate Professor Robert Anderson dated 5 December 2016 was tendered. Associate Professor Anderson is a mechanical engineer. In the report he expressed the following opinion:
In my opinion, given the foregoing, the method of transport of the load was not compliant with safe work practices in respect of the fact that there was no dedicated spotter. The absence of visual contact with the guide personnel would be inconsistent with safe work practice. I acknowledge that there is a dispute as to whether there was such visual contact, and also whether the defendant was aware that the plaintiff was not in his designated work area but guarding the shutter being transported.
Did Mr Steele beckon Mr Griffiths to approach the Manitou and steady the load? Was Mr Steele aware of Mr Griffiths approach to the Manitou?
Mr Griffiths said immediately before the accident he was beckoned by Mr Steele to approach the Manitou in order to steady the shutter suspended from the boom. Mr Steele denied this, and said he was not aware Mr Griffiths had approached the front of the Manitou until the moment the accident occurred, and that Mr Griffiths breached the 15 metre exclusion zone rule by not making eye contact with him before approaching. The parties agreed it was not possible to reconcile these versions of the accident.
Mr Steele submitted first, there were red herrings in the cross examination in relation to noncompliance with the operators manual and the WMS, such as failure to use a spotter, and raising shutters 1 – 1.5 meters off the ground when transporting them, which were not relevant to the occurrence of the accident and did not assist in resolving the major factual issues in dispute. Secondly, Mr Griffiths version of events was inherently improbable because it involved finding that Mr Steele was prepared to move the Manitou forward when Mr Griffiths was directly in front of it and a collision was inevitable. Thirdly, Mr Steel’s unchallenged evidence that Mr Griffiths fell away ‘to the right-hand outside of the Manitou was wholly inconsistent with Mr Griffiths version of events’.
Mr Griffiths’ evidence was clear, consistent and coherent. I consider him to be a credible witness.
For the following reasons I conclude Mr Steele’s credit was significantly impugned. First, in evidence in chief, Mr Steele gave the impression he was an experienced operator of the Manitou on construction sites using the Manitou to transport formwork. It emerged in cross examination, after Mr Steele was asked to produce his Gold Card licence, that he was first licensed as an operator on 19 May 2014, and the Euston bridge project was the first time he worked as a licensed telescopic handler operator.
Secondly, the impression created by Mr Steele’s evidence in chief was that the method he used to safely transport shutters around the site with the Manitou was to raise the shutter so the bottom edge was 1 to 1.5 metres off the ground enabling him to see 4 to 5 metres ahead of the shutter while driving forward. Further, Mr Steele said if necessary he would simply lower a shutter to touch the ground in order to stop it moving about. It was only in cross examination that Mr Steele acknowledged there were occasions when a dogman walked with the Manitou holding the shutter to steady it, and that he could not recall ever lowering a shutter to touch the ground to stop it moving. No witness gave evidence of seeing Mr Steele drive the Manitou around the site with shutters raised 1 to 1.5 metres off the ground. Ashley Martin said he would certainly have said something about it had he seen this occur. Mr Schkurat agreed shutters should not be carried at a height greater than 300–400mm off the ground. The operator’s manual instructs that loads should not be raised more than 300mm above the ground surface. It was my impression the evidence given in chief by Mr Steele was designed to convince that the systems used by him meant there was no need for a worker to steady a shutter while it was being transported by the Manitou, and no reason for Mr Griffiths to approach the Manitou moments before the accident, and that he was acting as an advocate for the position he advanced. Mr Steele’s evidence was unconvincing.
Thirdly, I agree with Mr Griffiths’ submission that evidence given by Mr Steel under cross examination which established the degree of his divergence from work systems recorded in the operators manual and WMS, was relevant because it reflected a casualness towards application of the WMS by Mr Steele and because it reflected poorly on Mr Steele’s credit that the evidence of noncompliance was only established by vigorous cross examination.
Fourthly, the contemporaneous notes and statements made shortly after the accident are consistent with the conclusion that Mr Griffiths’ approach to the front of the Manitou was expected and was part of the site work system. The handwritten statement completed by Mr Steele approximately one hour after the accident, recorded in paragraph 39 contains no suggestion that Mr Griffiths’ approach to the front of the Manitou was unexpected or unauthorised. The statement made by George Martin one and a half hours after the accident is in very similar terms, as is the brief note made by Mr Schkurat when he was first contacted and advised the accident had occurred. The witness statement form typed by Mr Schkurat after speaking to Mr Griffiths records that Mr Griffiths made eye contact with Mr Steele, and came in to give a hand.
Fifthly, I do not regard Mr Griffiths’ version to be inherently improbably. There are possible explanations for Mr Steele moving the Manitou when he did. Mr Griffiths said he had the shutter under control when the Manitou moved. Mr Steele may have though Mr Griffiths was ready for the Manitou to move, or expected Mr Griffiths to move in a different direction away from the right wheel of the Manitou, or moved the Manitou forward earlier than he should have.
Sixthly, I do not agree Mr Steele gave uncontested evidence that Mr Griffiths fell away to the right outside of the Manitou. Mr Steele did say Mr Griffiths ‘fell backwards out of the way’, and that he saw him ‘fall to the side’. However, Mr Steele did not say whether Mr Griffiths fell to the left or right side, or whether he was referring to Mr Griffiths falling to the side of the Manitou, or rather to the side of the front right wheel of the Manitou. It was not put to Mr Griffiths in cross examination that he fell to the right outside of the Manitou, or that the position in which he fell was inconsistent with his evidence about where he was standing when his foot was run over.
I accept the evidence of Mr Griffiths that shortly before the accident occurred he was beckoned by Mr Steele to approach the front of the Manitou in order to steady the shutter suspended from the Manitou boom. It follows that I conclude Mr Steele was aware of Mr Griffiths approaching the front of the Manitou for that purpose.
On which side of the formwork was Mr Griffiths standing when the Manitou was driven forward?
Similarly, on this question, there is direct conflict between the evidence of Mr Griffiths and Mr Steele. For the same reasons given above, I prefer the evidence of Mr Griffiths.
I note the diagram attached to the statement of George Martin appears to show Mr Griffiths, depicted as a stick figure, on the far side of the shutter from the Manitou and Mr Steele, rather than the nearside as Mr Griffiths said. George Martin did not give evidence, and the diagram is unexplained. I repeat that I regard Mr Griffiths to be a credible witness. The unexplained document attached to George Martin’s statement is of insufficient weight to cause me to doubt Mr Griffiths’ account of his position relative to the shutter and the Manitou when the accident occurred.
What was the site system for transporting loads using the Manitou? Did Mr Steele and Mr Griffiths comply with that system?
Breach
Breach of duty is determined in accordance with s 5B of the Civil Liability Act 2002 (NSW), which provides:
(1)A person is not negligent in failing to take precautions against a risk of harm unless:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)the risk was not insignificant, and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken,
(b)the likely seriousness of the harm,
(c)the burden of taking precautions to avoid the risk of harm,
(d)the social utility of the activity that creates the risk of harm.
It is necessary to accurately identify the risk of harm in order to consider, from the point of view of Mr Steele, looking prospectively, whether the risk was foreseeable and not insignificant, and what precautions a reasonable person would take against the risk.[1]
[1]Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, 351 [59].
The risk is not confined to the particular circumstances in which Mr Griffiths was injured, or to the type of injury he suffered. The nature of the event which led to Mr Griffiths’ injury was Mr Steele moving the Manitou when a worker was in close proximity. The case for Mr Griffiths focused on the risk of the Manitou colliding with him. The risk of harm was that a worker in close proximity of the Manitou when it was moved might be struck and injured.
Plainly that risk was foreseeable and not insignificant. The WMS for the Euston bridge project was devoted to safety issues associated with working near mobile plant. One hazard identified in the WMS was ‘collisions with plant and personnel’. There were 22 management controls or precautions listed responding to that risk. The WMS records a risk score without controls as ‘likely’ in terms of probability of occurrence and ‘major’ for consequences. The same risk was the subject of discussion at toolbox and pre-start meetings held on site. Mr Steele signed the WMS on 25 May 2015. All workers on site attended toolbox and pre-start meetings. The Manitou operator’s manual, which Mr Steele said he had access to and had read, contained instructions responding to the same risk. Mr Steele’s use of the Manitou to transport shutters did not comply in a number of respects with the WMS. Mr Steele did not use a dedicated spotter, did not communicate with the spotter by radio, moved the Manitou when he had not confirmed positive communication with surrounding workers/the spotter, did not stop work when Mr Griffiths came within the 15 metre exclusion zone, and proceeded to operate the Manitou without a spotter when there was a significant blind spot ahead. The large three metre wide shutter held by the Manitou at the time of the accident caused significant blind spots for Mr Steele, and was being held without the boom retracted close to the front of the Manitou. This resulted in Mr Griffiths being close to the Manitou wheels as he steadied the shutter. Mr Steele was aware from working at other constructions sites that loads transported by the Manitou could be held steady and guided with the use of tag lines, with the result that workers assisting would be away from the immediate vicinity of the front of the Manitou when it moved. Mr Steele accepted that with a three metre wide shutter suspended from the Manitou boom he could only see to the sides of the shutter as he drove forward, so that there was a significant blind spot in the direction of travel of the Manitou. The system adopted by Mr Steele to transport the shutter around the worksite using the Manitou increased the probability of harm occurring.
There were a number of precautions which a reasonable person in the position of Mr Steele would have taken in the circumstances as they existed immediately before the accident occurred. Tag lines should have been used to ensure Mr Griffiths was away from the front of the Manitou when it was moved. Mr Steele should have used a dedicated spotter, and should not have moved the Manitou forward until he had positive confirmation from his own observation or by communication from the spotter that Mr Griffiths and other workers on site were clear of the front of the Manitou and its path of travel. At a minimum Mr Steele should have sounded the horn of the Manitou as a warning to anyone in its path of travel. Knowing that Mr Griffiths was close to the front of the Manitou steadying the shutter suspended from the boom, Mr Steele should have taken great care not to move forward until he was sure Mr Griffiths was out of harm’s way. Mr Steele should not have moved the Manitou forward before making positive contact with Mr Griffiths to ensure he was ready and it was safe to move forward
I conclude that Mr Steele breached his duty to Mr Griffiths by the manner of his driving and control of the Manitou at the time of and in the period leading to the accident.
Causation
Mr Griffiths must prove that the negligence of Mr Steele was a necessary condition of the occurrence of the harm suffered by Mr Griffiths — in other words, that the accident and Mr Griffiths’ injury would not have occurred but for Mr Steele’s negligence.[2] Mr Griffiths bears the onus of proving each element or fact necessary to establish factual causation. Mr Griffiths has discharged that onus. A cause of the accident and Mr Griffiths’ injury was Mr Steele driving the Manitou forward in the circumstances and at the time at which he did. Mr Steele requested Mr Griffiths’ assistance to steady the shutter resulting in Mr Griffiths being in the immediate vicinity of the front of the Manitou. Tag lines were not used. Mr Steele moved the Manitou forward while Mr Griffiths was in the immediate vicinity of the front of the Manitou. He did so before making positive communication with a dedicated spotter and with Mr Griffiths to ensure it was safe. He did not sound the horn of the Manitou as a warning before moving forward. The consequence of Mr Steele’s negligent actions and inactions was that Mr Griffiths was in front of the right wheel when the Manitou moved forward, and the accident occurred. The negligent driving and control of the Manitou by Mr Steele was a necessary condition of the accident and the harm suffered by Mr Griffiths. Factual causation is established.
[2]Civil Liability Act 2002 (NSW) s 5D.
Contributory negligence
Mr Steele submitted that it was negligent of Mr Griffiths to stand in the position he did, immediately in front of the right wheel of the Manitou, with his back to Mr Steele ‘… knowing that the next thing that was going to happen was that the Manitou was going to move forward.’ Mr Steele submitted the precaution which Mr Griffiths should have taken against the risk of harm he faced was to hold the left end of the shutter so that he was not immediately in front of a wheel of the Manitou, and to maintain positive eye contact with Mr Steele as the Manitou moved forward and Mr Griffiths walked with it. Mr Steele submitted that the actions of Mr Griffiths placing himself immediately in front of the left wheel of the Manitou, when he knew the next thing to happen was that it was to be driven forward, ‘… was a grievous act of contributory negligence …’ justifying an equal apportionment of responsibility between Mr Griffiths and Mr Steele.
Mr Griffiths submitted that, for the following reasons, Mr Steele had failed to prove contributory negligence by him which was a cause of the accident. First, Mr Griffiths was summoned by Mr Steele and asked to move into a position of danger. Secondly, the direction given to Mr Griffiths was from a superior at the workplace. Thirdly, there was no evidence that the manner in which Mr Griffiths was performing the task was contrary to any instruction he had been given by BMD, or any direction or instruction from Mr Steele.
The principles which apply when determining whether a person has been negligent also apply in determining contributory negligence.[3]
[3]Ibid s 5R.
The risk from the point of view of Mr Griffiths was that if he was in the vicinity of the Manitou he might be struck and injured when it moved. That risk was foreseeable and was not insignificant. The real contest in relation to contributory negligence went to the issue of whether a reasonable person in Mr Griffiths’ position would have taken the precaution of holding the shutter from the end furthest from the front of the Manitou, and maintaining eye contact with Mr Steele at all times while controlling the shutter and moving with the Manitou as the shutter was being transported. To answer that question it is necessary to analyse the circumstances as they confronted Mr Griffiths. First, as I have stated, he was employed as a labourer and, in terms of seniority, was the most junior person working on the Euston bridge site. Secondly, Mr Steele was the supervisor on the site, and was in a position to give Mr Griffiths instructions and directions. Thirdly, Mr Steele was the licensed operator of the Manitou on site and had significant control over the system for transporting shutters using the Manitou. Fourthly, the system used regularly involved a worker holding a shutter suspended from the Manitou boom to steady and guide it as it was being transported. Fifthly, immediately before the accident Mr Steele beckoned Mr Griffiths to approach the Manitou to assist by holding and stabilising the large shutter suspended from the boom. Sixthly, the WMS management control in relation to workers entering the 15 metre exclusion zone is:
Personnel on ground to make eye contact with plant operators before entering the exclusion zone or swing area of machine.
Mr Griffiths made eye contact with Mr Steele before approaching the front of the Manitou. Seventhly, when Mr Griffiths approached the front of the Manitou it was stationary. Eighthly, Mr Griffiths then went about holding the shutter to stabilise it in preparation for it being transported. In doing so, he was acting in accordance with the system used by his superiors at the worksite for transport of shutters using the Manitou, including in particular Mr Steele. In my view, reasonableness did not require that Mr Griffiths take the precautions proposed by Mr Steele. Mr Griffiths was actively engaged in stabilising the shutter. In doing so he was not acting contrary to any instruction or direction from Mr Steele, or any other superior at the worksite. Nor was Mr Griffiths acting ‘in his own interest or for his own convenience’,[4] but was performing work in accordance with the system as directed.
[4]Davies v Adelaide Chemical and Fertiliser Co Ltd (1946) 74 CLR 541, 551 (Dixon J).
I conclude that Mr Steele has not discharged the onus of proving that there was contributory negligence on the part of Mr Griffiths which was a cause of the accident and his injuries.
Conclusion
I have found that there was negligence on the part of Mr Steele which was a cause of the accident and the injuries suffered by Mr Griffiths. Mr Steele has not established that there was any contributory negligence by Mr Griffiths. Damages will be awarded to Mr Griffiths in the amount agreed by the parties. I will hear from the parties in relation to costs and any consequential orders.
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