Hooker v Allied Pumps Pty Ltd [No 2] - [2018] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HOOKER -v- ALLIED PUMPS PTY LTD [No 2] [2018] WADC 129
CORAM:   McCANN DCJ
HEARD:   5-9, 12-15 FEBRUARY, 6-7 MARCH & 8 AUGUST 2018
DELIVERED          :   12 OCTOBER 2018
FILE NO/S:   CIV 1141 of 2014
BETWEEN:   MICHAEL JAMES HOOKER
Plaintiff
AND
ALLIED PUMPS PTY LTD
Defendant

Catchwords:

Negligence - Workplace injury - Portable alarm accidentally activated in an office - Plaintiff startled and injured his neck - Unsafe workplace - Turns on own facts

Assessment of damages - Co-morbid organic, psychiatric and psychological injuries - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981, s 92(b), s 93F(1), s 146H(1), s 146H(2)

Result:

Judgment for the plaintiff in sum of $1,976,364.40 (inclusive of indemnities owed to the workers' compensation insurer, Medicare and HBF)

Representation:

Counsel:

Plaintiff	:	Mr M A Tedeschi
Defendant	:	Mr D Clyne

Solicitors:

Plaintiff	:	Slater & Gordon
Defendant	:	SRB Legal

Case(s) referred to in decision(s):

Beer v Duracraft Pty Ltd [2004] WASCA 192
Briginshaw v Briginshaw (1938) 60 CLR 336
Brocx v Mounsey [2010] WASCA 196
Browne v Dunn (1893) 6 R 67
Chamberlain v The Queen [No 2](1984) 153 CLR 521
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fox v Wood (1981) 148 CLR 438
Jones v Dunkel (1959) 101 CLR 298
Lazarevic v The State of Western Australia [2007] WASCAS 156
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
MR and RC Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ramsay v Watson (1961) 108 CLR 642
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
Thomas v O'Shea (1989) Aust Torts Reports 80‑251
Tonkin v Strickland [2007] WADC 144
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Usher v Usher [1992] HCA 47; 65 ALR 384
Vairy v Wyong Shire Council [2005] HCA 62
Watson v Fung [2005] WADC 168

McCANN DCJ:

Introduction

The plaintiff claims damages for personal injuries caused by an accident in the course of his employment as a computer draftsman at the defendant's office in Welshpool (the accident).
The accident occurred at approximately 2.00 pm on 12 March 2012 whilst the plaintiff was seated at his desk in an open plan office known as the Operations Room. An employee of the defendant who was also present (Andrew Edwards, now Starcevich) switched on a personal gas detector (the gas detector) behind the plaintiff. The alarm was triggered and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WADC 129
Decision Date: 12 OCTOBER 2018

CaseChat Overview and Summary

The case of Hooker v Allied Pumps Pty Ltd [No 2] involved a workplace injury to the plaintiff, Mr Hooker, who was startled and injured his neck when a portable gas alarm was accidentally activated in the office. The plaintiff sought damages from the defendant, Allied Pumps Pty Ltd, alleging that the workplace was unsafe due to the presence of the defective alarm. The dispute was heard in the Supreme Court of New South Wales. The primary legal issues for the court to determine were whether the defendant was negligent in maintaining the gas detector and whether this negligence contributed to the plaintiff's injuries. Additionally, the court had to assess the extent and nature of the plaintiff's damages, which included organic, psychiatric, and psychological injuries.

The court found that there was evidence suggesting that the gas detector was faulty and had been malfunctioning prior to the incident. Specifically, the court noted that the device was known to be problematic, with the alarm going off every time it was turned on. This was corroborated by the fact that the device was not in its usual place of storage and was awaiting repairs. The court also highlighted inconsistencies in the evidence provided by some of the witnesses, which further supported the notion that the device was defective and that the defendant had knowledge of this issue.

The court concluded that the defendant was negligent in failing to address the known defect in the gas detector. The court found that the evidence, including the report written by the plaintiff on the incident, provided circumstantial evidence that the defendant had notice of the defect prior to the accident. The court further found that the defendant's failure to tag out the device and inform the plaintiff of the defect constituted a breach of duty of care. As a result, the plaintiff's injuries were directly attributable to the defendant's negligence. The court assessed the damages to be awarded to the plaintiff, taking into account the various injuries he had suffered, and made findings on the appropriate compensation for each component of the plaintiff's damages.

In summary, the court found in favour of the plaintiff and held the defendant liable for the injuries sustained by the plaintiff due to the unsafe workplace conditions. The court awarded damages to the plaintiff, reflecting the organic, psychiatric, and psychological injuries he had suffered as a result of the incident. The specific quantum of damages was determined based on the evidence presented and the court's assessment of the plaintiff's injuries and their impact on his life.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In cross‑examination he was asked about a report he wrote about the accident on or about 14 May 2013 (exhibit 1.375). I quote the following:Michael Hooker incident - 12 March 2012Open office shared by operation HSC and service personnel at timeDevice – normal. MSA Altair 4X Gas detector, according to the service manager [ie Mr Slack], the device was having problems at the time, the alarm was going off every time it was turned on. It was replaced under warranty on 13 March 2013 (sic 2012) (documentation from supplier confirms this). Mr Powell agreed (ts 770) that the passage I have emphasised refers to information given to him by Mr Slack, but he cannot recall when that occurred. Mr Slack did not specifically tell him when the alarm had been going off or when he found out about that either. I infer that it is possible that Mr Slack was speaking after the accident itself, and referencing the accident, bearing in mind the evidence about the alarm sounding two, three or more times, which would predicate it being switched on and off multiple times. But the use of the words 'every time' would suggest that Mr Slack was referring to multiple occasions, and not just the occasion when the accident occurred, some of which would necessarily have been prior to the accident after which the unit was immediately decommissioned. This provides circumstantial evidence that Mr Slack or someone else in the defendant's organisation had notice of the defect prior to the accident. Mr Powell was not aware of any 'tag out processes' that specifically applied to the gas detector, but the defendant did have a tag‑out system. I doubt the reliability of some of the evidence of Messrs Perera, Slack and Starcevich for reasons already mentioned. However, taken with Mr Lebbos' evidence, there is common ground that lays a reliable foundation for the following findings, which I make:(i)At approximately 2.00 pm the plaintiff and Messrs Lebbos, Kacuiba, Perera and Slack were working at their desks in the Operations Room with their backs towards the central table. Mr Starcevich came into the room and went to the table. No‑one paid him any attention as he and the other service technicians usually called in during the afternoon to liaise with Mr Kacuiba and Mr Slack about their work.(ii)The gas detector was already lying on the table. I rely on the evidence of Messrs Slack and Perera about this. I feel that Mr Lebbos may very well have missed seeing it there, or not noticed it, since it did not concern him and (as I find in [105](iii)) it was not tagged out. The unit was faulty and awaiting collection for offsite repairs. That finding is corroborated by the fact that it was not in its case or usual place of storage.(iii)Mr Perera's evidence that the unit was tagged out is not believable; nor was his evidence that he remonstrated with Mr Slack or Mr Powell about it. I am not satisfied that the gas detector was 'tagged out' at any stage. Nor do I accept Mr Perera's evidence about conversing with Mr Starcevich prior to the accident. No‑one else who was in a position to hear the conversation testified about it taking place. It has the same self‑serving hallmark as Mr Perera's evidence about his pre‑accident conversations with Messrs Slack and Powell and about the incident report. It is also inconsistent with his 2013 statement (see [63]).(iv)I accept Mr Perera's evidence that the plaintiff burst into profanities when the alarm first sounded and that he was 'shaken up' (see [57). Mr Lebbos' evidence (ts 786, 789) tended differently (Mr Starcevich was being wilful) but, as I have said, I am not confident that Mr Lebbos recalled Mr Starcevich's reaction on the first occasion that the alarm sounded and instead his memory focuses on the subsequent occasion(s) when Mr Starcevich made a joke out it.(v)A number of people remonstrated with Mr Starcevich when the alarm sounded. But he activated it at least once more, as a prank. My reasons are as follows. First, such behaviour is in accordance with his light‑hearted personality. Second, he said at the time that it was 'a joke' (as the plaintiff testified and, indeed, reiterated on a number of occasions for medical or medico‑legal purposes).