Kirkland v Moore

[1999] NSWCA 305

CITATION:	Kirkland v Moore & Anor [1999] NSWCA 305
FILE NUMBER(S):	CA 40524/97
HEARING DATE(S):	13 August 1999
JUDGMENT DATE:	25 August 1999
PARTIES :	Wayne Kirkland v Joseph Gilferd Moore and David Crowther
JUDGMENT OF:	Spigelman CJ at 1; Priestley JA at 2; Giles JA at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 3408/96
LOWER COURT JUDICIAL OFFICER:	Her Honour Judge Gibb

COUNSEL:	Appellant - E. Petersen Respondent - Ms S. Norton
SOLICITORS:	Appellant - In person Respondent (1) - Brydens Law Office
CATCHWORDS:	Action for negligence for not taking due care with defective equipment
CASES CITED:	March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
DECISION:	Appeal upheld

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40524/97
DC 3408/96

SPIGELMAN CJ
PRIESTLEY JA
GILES JA

Wednesday, 25 August 1999

KIRKLAND v MOORE & ANOR

ACTION FOR NEGLIGENCE FOR NOT TAKING DUE CARE WITH DEFECTIVE EQUIPMENT - first defendant, a tradesman, experienced with angle grinders, gives angle grinder to second defendant, also a tradesman experienced with angle grinders - angle grinder has obvious defects including a missing guard - second defendant leaves angle grinder in garage of plaintiff, with whom he is staying and who is also a tradesman experienced with angle grinders - plaintiff decides to see whether motor of angle grinder is working before deciding whether to have it repaired - switches it on - is struck in eye by piece of disk from angle grinder - loses sight in that eye - brings negligence action against both defendants - trial judge holds first defendant liable, second defendant not liable and awards plaintiff $86,750 damages - first defendant appeals.

On appeal - judgment against first defendant set aside and judgment given in his favour - in all circumstances, and assuming first defendant owed duty, no causal relationship between any breach of duty and damage.

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

ORDERS
1. Appeal upheld.
2. Judgment below against first defendant set aside.
3. Judgment for first defendant against plaintiff .
4. Plaintiff to pay first defendant’s costs of trial and appeal.
5. Plaintiff to have certificate under Suitors Fund Act.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40524/97
DC 3408/96

SPIGELMAN CJ
PRIESTLEY JA
GILES JA

Wednesday, 25 August 1999

KIRKLAND v MOORE & ANOR

1    SPIGELMAN CJ: I agree with Priestley JA. 2    PRIESTLEY JA: On 7 March 1995 Mr Joseph Moore switched on an angle grinder in the garage at his house. Immediately a piece of a disk on the angle grinder flew off it and struck him in the right eye, blinding it. 3    Mr Moore as plaintiff subsequently brought an action in the District Court against Mr Wayne Kirkland as first defendant and Mr David Crowther as second defendant, alleging that the negligence of each of them had caused the accident, and claiming damages from them. 4    At the trial, heard by Gibb ADCJ, the plaintiff and the first defendant had legal representation; the second defendant did not. The trial judge found for the plaintiff against the first defendant, ordering damages in the sum of $86,750; the plaintiff’s case against the second defendant was dismissed. 5    Before Gibb ADCJ the facts of the case emerged as follows. The plaintiff’s evidence was: he had first seen the angle grinder in the back of a utility truck owned by the second defendant; this was probably about four months before the accident; the second defendant was at that time, and still at the time of the accident sharing his house with him; the second defendant told him the angle grinder had been given to him by the first defendant; that he (the second defendant) did not particularly want it and asked the plaintiff if he wanted it; he (the plaintiff) said no; the second defendant then took the angle grinder out of the utility truck and left it in the garage; on the day of the accident the plaintiff was tidying up the garage; he came upon the grinder; he noticed it had no safety guard; he thought he would test the motor, and if it went, he would send it into a repair shop, get it fixed, and use it. The plaintiff was asked by his counsel whether he had “some familiarity with these devices” and said yes. 6    Because the second defendant was unrepresented the judge examined him in chief. She obtained from him the circumstances in which the first defendant gave him the angle grinder. The first defendant’s wife was the second defendant’s sister. The second defendant had fairly recently come to Australia. They were in the first defendant’s back yard. The second defendant said:

“ ...But anyway, Wayne’s cleaning out a shed there and he asked us if we’ve got a use for this grinder and I said “no, not really.’ He said, ‘Well you may as well have it’ and I said, ‘Oh yes, rightio’ and that was about it and I just stuck it on the back of the truck in the storeroom.
Q. Was that pretty well the only conversation or was that all the conversation or you can’t remember anything about the --
A. No I do actually, he did point out to me that there was a - I knew there was a - there was a metal cutting disk and a sandpaper disguise. That’s it basically. I think what he pointed out was to take the sandpaper disk off. It was quite flippant, it was like, it was a gift. Like if someone’s giving you a gift like he did, he doesn’t say ‘Well don’t do this and this’, it was a tool given to another tradesman so I mean you know what’s what.
Q. Did you think you were getting a tool that worked or a tool that didn’t work?
A. A tool that worked.
Q. Do you know why you thought that?
A. Because he said it worked. No he didn’t say it worked - sorry, I take that back. ‘Have you got a use for it?’ ‘Not really.’ It’s a tool given to you so what I need to do I would imagine if I was going to use it was put a new blade on it and that’s it. ”

7    The second defendant said he put the angle grinder in the back of his utility truck. His statements about how long it stayed in the back of the utility truck varied, but from them it appears that it was probably between twelve and eighteen months. His evidence further was that after this period he was one day cleaning out his utility truck at the plaintiff’s place, took the angle grinder out of the vehicle and put it in a corner of the plaintiff’s garage. He said nothing about any conversation between himself and the plaintiff on this occasion. He denied he had offered the device to the plaintiff. The examination in chief ended with the following questions and answers:

“ Q. The central piece Mr Crowther is, are you quite certain that you were never warned about the grinder?
A. Yes, 100 percent.
Q. Is there something else you’d like to say, just stay between the dates when you get the grinder and the day of the accident?
A. Right. No I was just given the grinder as a gift, you know sort of getting rid of it as a gift, okay. Grinder rolls around the back of the truck. I clean the truck, put it in the shed and the next thing I know Joe’s lost his eye. That’s that. ”

8    In cross-examination the second defendant said that at the time he took the angle grinder “home” (that is, to the plaintiff’s place) the plaintiff’s occupation was the doing of fencing work, and that he had seen him using angle grinders in that work, as well as skill saw and chain saw and compressor, “all those bits and pieces yes”. He said the plaintiff had been working as a fencing contractor for “a few years”. 9    The first defendant’s account of what happened when he gave the angle grinder to the second defendant was somewhat different from that of the second defendant. The important difference was that he said he knew himself that the angle grinder was in a dangerous condition and told the second defendant it should be looked at by a fitter or electrician before it was used. The trial judge formed an adverse view of the credibility of the first defendant and said she would not accept his evidence when in conflict with that of any of the other witnesses. She therefore accepted the second defendant’s account that no warning had been given such as the first defendant claimed. She accepted however the first defendant’s evidence that he was well aware of the defective nature of the angle grinder. 10    The trial judge found that the first defendant at the time when he gave the angle grinder to the second defendant had no reason to believe that the second defendant “either appreciated the dangers posed by the condition of the angle grinder or understood that the angle grinder should not be used unless it had been repaired”. 11    On this basis the trial judge reasoned (1) that the first defendant, being aware of the danger of the angle grinder to anyone who tried to use it before having it repaired, gave it to the second defendant who was not aware of such potential danger and that this put the first defendant in breach of a duty of care to anyone who might foreseeably seek to use the angle grinder and (2) that the damage suffered by the plaintiff was caused by that breach of duty. 12    Further, because the second defendant was not aware (in the judge’s view) of problems with the angle grinder, he was not in breach of any duty by leaving the angle grinder in its unknown to him defective condition in the plaintiff’s garage. 13    This reasoning led the trial judge to find that the first defendant was negligent (i) in passing on the angle grinder in the condition in which he gave it to the second defendant, (ii) in failing to warn the second defendant and any other person likely to be brought into contact with the angle grinder of the dangers inherent in using it, and (iii) in passing on the angle grinder in a dangerous condition without taking any steps to reduce or abate the danger. 14    The first defendant appealed against the judgment against him. When the appeal came on for hearing his counsel told the court that not all the grounds in the notice of appeal would be pursued and in particular no appeal was brought against the amount of the judgment; the appeal was directed solely against the liability found by the trial judge against the first defendant. The plaintiff did not bring any cross-appeal against the dismissal of the case against the second defendant. 15    In the appeal it was submitted for the first defendant that the trial judge had been wrong in holding that in the circumstances he had owed the duty found by the trial judge and, assuming there had been a duty and a breach by the first defendant, that it was wrong for the trial judge to have concluded that the breach caused the damage suffered by the plaintiff. 16    Before dealing with these submissions some matters of fact need to be emphasised. The trial judge generally accepted the second defendant’s evidence, particularly so when there was a conflict between his evidence and that of the first defendant. However there were various inconsistencies in the second defendant’s evidence to which the trial judge gave no consideration. The trial judge said in her reasons, for example, that the second defendant testified he had assumed that the angle grinder was working when the first defendant gave it to him. That was in fact said by the second defendant in the passage of the evidence led from him by the judge which I have above set out. However, it appears from the same passage that he withdrew that answer, at least in significant part. The trial judge also recorded the second defendant as having said that if he had thought the angle grinder was not in working order he would have thrown it away or got it fixed. This overlooks the statement by the second defendant in the same passage reproduced above that if he was going to use the tool he would put a new blade on it. 17    In cross-examination the second defendant agreed that he himself had worked with angle grinders before the accident, that the particular angle grinder was similar to the model he had in New Zealand, that it was very much standard throughout the world, that he had been a fencing contractor for some time and that he used an angle grinder if he was doing steel posts. He also said he did not like angle grinders because they were too dangerous. Then, when asked whether the metal cutting disk on the angle grinder was all bent when it was given to him, he answered:

“ They can’t bend. I mean it’s a compound that’s made up of wire when you can see it. You can’t see whether that’s a bend you wouldn’t see a buckle on it. You’d look at the disk on the machine and say ‘Okay’ and then you couldn’t see it, you wouldn’t see that. ”

18    The evidence then proceeded:

“ Q. The sanding disk, is that --
A. Now that’s what’s been referred to as buckled and bent. That’s a piece of basically hard cardboard with the type of graphite stuck on to it. Now that sanding disk was put on to the grinding disk and the grinding disk was used as a backing platform for the sanding disk which is, to any layman really dangerous. Now how that got there I don’t know. So that’s what we’re talking about when it’s buckled.
Q. When did you notice that?
A. What’s that?
Q. What you just described?
A. When the ... (not transcribable) ... buckled, they’re bowed. I mean everyone is talking about something buckled on it. That’s what they look like.
Q. Well it was obvious to you that this was not in good operable condition when it was given to you wasn’t it?
A. Not for safety no.
Q. But you just said a moment ago it was dangerous, it was warped?
A. Well you would use it if you were in the back yard doing something and in extreme circumstances, but I mean if you went on to a building site and inspectors come around and saw it you’d be kicked off.
Q. Well you were an experienced tradesman with these tools as at the time this was given to you?
A. Hmn.
Q. And it clearly presented to you as to be not in a good or safe operating condition. It clearly presented that --
A. Clearly presented that way?
Q. Yes --
A. Through my own observation I would say, I would use it but I’d be careful. ”

19    A little later, asked how long the grinder was in the back of his utility before he put it in the plaintiff’s garage he said:

“ Yes, a year, what, if you like to argue, yes eighteen months. It was in there for a while, rolling around on the side there and ... ”

20    Later again, (at p 52 of the transcript, p 61 of the appeal papers) he gave a long answer indicating considerable familiarity, prior to the accident, with angle grinders and their dangers, because of which he disliked using them. Also, in the course of this part of his evidence he made it clear, in my opinion, that, after some doubt about whether there had been no guard on the angle grinder at the time of the accident, he accepted that there was not, and also that if there had been, the piece of the disk which struck the plaintiff would not have done so. 21    Finally, in regard to the facts, there appears to be no basis in the evidence for the trial judge’s finding that the first defendant had no reason to believe the second defendant either appreciated the dangers posed by the condition of the angle grinder or understood it should not be used unless it had been repaired. In the appeal counsel for the plaintiff was asked whether she could show any portions of the evidence supporting this finding. The answer was that the finding was permissible to the judge because of her disbelief of the first defendant’s evidence whenever in conflict with that of the plaintiff or the second defendant. However, the judge’s finding cannot be based simply on non acceptance of the first defendant. Evidence quite separate from that given by the first defendant, reference to which has been made above, shows that the second defendant was a tradesman, accustomed to using angle grinders, aware of the physical condition of the angle grinder in question and quite able to understand that that physical condition made it dangerous to use unless first repaired, and that in the circumstances the first defendant was bound to have been aware of these facts. 22    I return now to the submissions of the first defendant in this court. They were directed first to the trial judge’s findings concerning the first defendant’s duty in the circumstances. This is a case in which the considerations concerning whether there was a duty, whether there was a breach or there were breaches and whether damage had resulted from any breach, overlap considerably, if not entirely. However, I will treat the elements separately, in the customary way. 23    Although the main emphasis of the trial judge’s reasons was on the first defendant’s duty to warn the second defendant concerning the state of the angle grinder, she also said the first defendant had been negligent in passing it on in the condition in which it was and in passing it on in a dangerous condition without taking any steps to reduce or abate the danger. It was contended for the plaintiff in the appeal that these were two separate additional heads of negligence. It seems to me that they were both aspects of one head of negligence, but that whether this be so or not does not particularly matter in the circumstances of the case. Whichever be the better way of categorising it, it seems to me that to say that in the circumstances of the case the first defendant was under a duty either not to pass on the angle grinder at all or to take the physical steps the trial judge thought he was duty bound to take, is to impose a duty upon the first defendant much heavier than the circumstances required or justified. On the evidence of the second defendant himself, he was a tradesman accustomed to using angle grinders and well aware of the dangers they involved. The trial judge was impressed by the fact that the first defendant claimed considerable expertise in regard to machinery such as the angle grinder and that this expertise was greater than that of the second defendant. That consideration however does not cut down the fact that the knowledge of the second defendant, although not as great as that of the first defendant, was more than sufficient, as his own evidence shows, to understand fully, and equally as well, for practical purposes, as the first defendant, the potential dangers of using the angle grinder in its condition at the time it was handed over. 24    It may well be that the same considerations lead to the conclusion that there was no duty upon the first defendant to warn the second defendant concerning what needed to be done with the angle grinder before use. However, because in regard to this head of negligence, what seems to me to be a straightforward answer lies in the causation aspect of the case, I will deal with that, upon the assumption in favour of the plaintiff, that the first defendant was under a duty to warn and was in breach of that duty. 25    Even on these assumptions, however, I would disagree with the trial judge’s conclusion that there was a sufficient causal link between the failure to warn and the accident. In my view it was not the first defendant’s failure to warn the second defendant that, to use the words of Mason CJ in March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 at 518, “generated the very risk of injury resulting from the negligence of the plaintiff”. Of course, in one sense the failure to warn was a link in the causal chain leading to the accident. However, to my mind that causal link was too far away from the accident itself for the accident, on the common sense approach advocated by Mason CJ in March, to warrant fixing liability upon the first defendant. Mason CJ acknowledged in March (at 516) that in a case such as the present value judgments on the part of the court are involved, a feature which is also clearly implicit in Deane J’s reasons in the same case, when he said the question came down to “whether an identified negligent act or omission ... was so connected with the plaintiff’s loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it” (at 522). 26    The facts which seem to me to be relevant on this question are 1, that as the second defendant said, the gift of the angle grinder to him “was a tool given to another tradesman so I mean you know what’s what”; this ordinary, although somewhat cryptic, language illustrates that the second defendant had the same appreciation of the situation that I have gained from a consideration of the evidence, 2, that one tradesman was giving to another a tool that needed work before it could be safely used, 3, that they were both aware of this fact, 4, that the tool for a period of up to eighteen months was left by the second defendant in a place where further damage could have happened to it, 5, that the tool did not have a guard, 6, that fact, and other features of its condition which made it defective were obvious to inspection by a tradesman used to using such tools, and 7, that the plaintiff was a tradesman in that category. 27    In these circumstances it is my opinion, accepting only those parts of the first defendant’s evidence which the trial judge accepted, that the giving of the tool by the first defendant to the second defendant was insufficiently connected to the accident for the first defendant’s actions to be regarded, as a matter of ordinary common sense and experience, as a cause of that accident. 28    In my opinion the first defendant’s appeal should be upheld, the judgment against him set aside and judgment given for him against the plaintiff. The first defendant’s costs of the trial and the appeal should be borne by the plaintiff. The plaintiff should have a certificate under the Suitors Fund Act. 29    GILES JA: I agree with Priestley JA.

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