Hannan v NOEA Australia Pty Ltd

[1997] QCA 209

[1997] QCA 209  

COURT OF APPEAL

FITZGERALD P
THOMAS J
WILLIAMS J

Appeal No 2381 of 1996

WILLIAM HANNAN  Appellant (Plaintiff)

and

NOEA AUSTRALIA PTY LTD               Defendant (Respondent)

BRISBANE

..DATE 01/05/97

JUDGMENT

THOMAS J:  This is an appeal by a plaintiff against a finding of contributory negligence.  Alternatively, it is submitted that the 20 per cent apportioned against the plaintiff is excessive. 

At the time of his injury the plaintiff was employed as a welder in the hold of the vessel John Oxley.  He was working with a welding machine that weighed 23 to 24 kilograms or about 50 pounds.  On the afternoon of 5 January 1990 the plaintiff was working alone.  Welders ordinarily worked with assistance called bird watchers who fulfilled a safety role.

The assistant assigned to the plaintiff earlier in the week was not there on the day in question which was a Friday.  The usual practice was that on completion of his welding work the plaintiff was required to move the welder from the hull to the deck to facilitate painting work being done over the week end.  The usual practice was that the bird watcher would help the plaintiff by taking the equipment from him at the top of the ladder.

In fact, it had been the invariable practice for the plaintiff to do it this way until the day in question.  The general practice may be regarded as the system in the present case.  It had been implemented on numerous occasions without injury and the plaintiff conceded that he had not had any trouble in removing the equipment in this way on any former occasion.

There was, however, some degree of awkwardness in such a manoeuvre in that when the plaintiff reached the man-hole he would pass the welder up to the other man on the deck who would lean through the hatch to receive the welder and lift it out.  The slope of the ladder was about 70 degrees and the hatch was small.  It did not allow the simultaneous passsage of a man and the welder.

A safety expert, Mr Kahler, considered that such a system was safer than that of a man acting alone when he would either have to project the equipment above himself from the ladder or dangle the equipment until enough of his body was on the top deck to lift the equipment through the hole.  He considered that the two-man system would reduce the risk of injury but not eliminate it. 

His Honour accepted Mr Kahler's evidence that if it was necessary to remove the welder from the hull to the deck the defendant should have provided a small crane or mechanical lifting device such as a pulley for that purpose.  His Honour went on to hold the defendant negligent in not requiring the plaintiff, when removing the welder from the hull to the deck, to use a mechanical lifting device such as a pulley.  There is, of course, no challenge to His Honour's finding of negligence against the respondent.

Turning to the question of contributory negligence His Honour found as follows:  "The plaintiff said that when he mounted the ladder with the welder no one else was about and that as he climbed the ladder he called for assistance but no one came so he pressed on alone feeling that he could do the job.  But as he said, in cross-examination, he had always had someone else to help him with this operation before and, on this occasion, had plenty of time to get someone to help him.  The prospective awkwardness and risk of manoeuvre, completed alone, should have been apparent and taking reasonable care for his own safety the plaintiff should have desisted until help was available.  He was contributorally negligent and I assess the extent of his own negligence at 20 per cent."

For the appellant it was submitted that the defendant could not show that by using an assistant the plaintiff probably would not have suffered injury.  The submission was that the evidence of Mr Kahler, accepted by the trial Judge, was that using two people in the usual way still involved some risk of injury either from falling or from straining.  However, the fact is that the task had always been done successfully in the past with such assistance.  Since the lifting had been undertaken by two men without injury once or twice a week for the past three months it is not, in my view, reasonable to suggest that the use of such a system would not probably have avoided an injury such as that which the plaintiff sustained by attempting to do it by himself.

In short, the evidence as a whole, suggests that if the plaintiff had followed the past practice of lifting with assistance he probably would not have been injured.  I therefore think that any onus on the defendant in this regard has been satisfied.  

Plainly, the plaintiff consciously decided to take the welder up the ladder himself knowing that assistance was readily available.  In short, he chose the more risky of the two options known to him and doing so was almost certainly the cause of his injury.  He did not reveal due regard for his own safety.  An apportionment of 20 per cent was within the limits of the exercise of a sound discretion and I would not interfere with the apportionment.  The appeal should therefore be dismissed with costs to be taxed.

THE PRESIDENT:  I agree.

WILLIAMS J:  I agree.

...

THE PRESIDENT:  The order will be appeal dismissed with costs to be taxed.

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