Loechel v The State of South Australia
[2011] SADC 115
•2 August 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LOECHEL v THE STATE OF SOUTH AUSTRALIA
[2011] SADC 115
Judgment of His Honour Judge Cuthbertson
2 August 2011
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - AFFECTING PUBLIC AUTHORITIES
Injury to school student starting unprotected engine. Plaintiff suffered hand injury.
Held - defendant negligent. Plaintiff fifteen percent responsible.
DAMAGES - PERSONAL INJURY- Injury to dorsum of left hand - loss of sensation and power - increased risk of exacerbation – working as metal fabricator – non economic loss $15,000 past & $15,000 future - economic loss $1,000 past and $25,000 future – total assessment $47,600 after 15% reduction.
Commonwealth v Introvigne (1981 - 1982) 150 CLR 258 at 271; Wyong Shire Council v Shirt (1980) 146 CLR 40; McHale v Watson (1996) 115 CLR 199, referred to.
LOECHEL v THE STATE OF SOUTH AUSTRALIA
[2011] SADC 115
The Issues
The Plaintiff sues the Defendant pursuant to s 5 of the Crown Proceedings Act 1992. It is claimed the Defendant was negligent in the causing of an injury suffered by the Plaintiff, then a 16 year old school student, on 29 June 2001. The Plaintiff’s hand was drawn into a stationary motor affixed to a go-kart frame being constructed as part of a project by students doing Technology (Automotive) as a subject at the Mannum High School.
At the time of the accident the Plaintiff was in third year of High School.
The Plaintiff claims the Defendant was negligent and the Defendant denies such negligence and, in the alternative, claims the Plaintiff was contributorily negligent.
Liability
Credibility of Witnesses
I found all witnesses who gave evidence in this trial were endeavouring to tell me the truth.
Specifically, I accept the Plaintiff as a witness of truth. Attempts were made to discredit him in relation to alleged exaggerations in respect of the sequelae of his injuries and in respect of an Affidavit of Loss sworn in this matter in which the Plaintiff attested to having made an application to join the Air Force which application was allegedly rejected on account of his injury. (See Amended Affidavit of Loss, Trial Book p 27)
None of these matters, including the fact that I find that, at the time of the accident, he was not participating in the course Technology (Automotive), swayed me in my assessment that he was an honest witness, although not always an accurate witness.
I was also impressed with the Defendant’s principal witness Mr Vincent Hatcher. I found him too to be an honest witness endeavouring to tell the truth.
The Plaintiff’s Case
The Plaintiff claims that he was at all relevant times in the year 2001 enrolled in a class, “Technology Automotive”. Mr Vincent Hatcher, a teacher employed by the Defendant was teacher of that particular subject.
It is common ground that for a project for the class during the course of the year it had been decided to make a go-kart. This was to be a simple vehicle made of tubular metal welded together, with an air-cooled engine mounted at the rear to drive it.
According to the Plaintiff, during one lesson in the afternoon of Friday 29 June, 2001, the go-kart was left outside the roller door to the technology workshop on a concrete apron. It was probably there for grinding of the welds on the frame to take place as it is common ground that such grinding was required to take place outside for reasons of safety and noise.
The school had received, by donation, a stationary motor, probably of Briggs and Stratton manufacture, which is a standard type of engine often found in lawn mowers. This engine was fixed to the go-kart during the course of the class work during the year.
It was started by the use of a rope which is wrapped around a cylinder protruding from the fly wheel. The motor was incomplete in that it was lacking the shroud which ordinarily covers the vanes of the fly wheel for purposes of safety and to direct the flow of cooling air generated by the turning of the vanes over fins on the engine.
There can be little doubt that the engine was in a dangerous condition. It is obvious that such engines rotate at a fast speed and that the vanes protrude from the engine and rotate when the engine is running.
The hand must, out of necessity, be placed close to the vanes when the rope is pulled in order to start the engine and a moment’s reflection would make one realise that there is a danger if the hand is in close proximity or a rope attached to the hand is in close proximity to the rapidly rotating vanes which would be apt to snag the rope or hit the hand if it was placed nearby. This is the reason all such similar air cooled engines have a cover or shroud protecting the hand or any loose item of clothing from contacting the rotating vanes.
On this occasion the Plaintiff attempted to start the engine with a rope used as a starter cord. He claims that he was adjusting the speed at the throttle located on the engine near the carburettor when the rope hanging loose in his left hand was caught in the fly wheel. This pulled his left hand into the turning fly wheel of the engine and thus caused him to suffer an injury. There is no cogent evidence to the contrary and I accept this evidence of the Plaintiff as to how the accident occurred.
On previous occasions the Plaintiff had seen the class teacher, Mr Hatcher, start the engine. He had also started it himself and had seen other students do it.
On all of these occasions it must have been done without the shrouding being present.
There is no evidence as to where the rope came from that was used to start the engine although the witnesses suggest that it had no knot on the end of it and no handle making it unlikely to be the rope that was kept by Mr Hatcher in his office for that purpose.
It is the case for the Plaintiff that the Defendant was negligent in permitting him to start an engine in a dangerous condition with exposed moving parts due to the absence of a covering shroud.
The Defence Case
The defence case is that the Plaintiff was not part of the Technology (Automotive) course at the time he suffered his injury. It is the case for the defence that the Defendant had changed courses at some time in the second term and that on the date of the injury he was no longer in the course and therefore should not have been where he was and should not have been starting the go-kart which was part of the Automotive Technology course; a course he was not participating in at that time.
According to the defence case Mr Hatcher warned, or at least advised the students at the beginning of this particular lesson that the engine was not to be started. On the defence case, however, it follows that the Defendant would not have been present and would not have received that instruction and I so find.
At the start of the year all students in Mr Hatcher’s class received clear and concise safety instructions.
Mr Hatcher is adamant that the Plaintiff had approached him about changing courses and that he was not present in the course on the date he suffered his injury. There is support for that from the Assessment Summary Sheet of the Plaintiff which seem to confirm that he had an assessment for “Automotive” in term 1 but thereafter in terms 2, 3 and 4 there was no assessment for “Automotive” but in lieu thereof there were assessments for the solar car.
Factual Findings
I find the Plaintiff generally to be a witness of truth who was doing his best to inform the court of the circumstances surrounding his accident and other matters. Due to the effects of time he was not always accurate however.
I find that he is mistaken when he claims that he was still doing the Automotive Technology course at the time of his accident. The evidence of Mr Hatcher is compelling in its specificity. (T 495, 551) The Plaintiff, under cross examination, became less than convincing on the topic. (See T 131 – 132) The documentary evidence also supports the evidence on the topic of Mr Hatcher. (See 2001 Assessment Summary Sheet (P1, Volume 1, Tab 20)
I find, therefore, that the Plaintiff approached the go-kart at a time when it was located outside the roller doors. I do not know why he was there but I assume it was a free lesson for him or he had, for some other reason, not attended his proper class.
For a 16 year old school student I have no doubt that a motorised go-kart would have been the subject of some interest. In some respects it constituted an allurement which was likely to attract students who would be likely to want to tinker with it.
I accept the evidence of Mr Hatcher as being truthfully given. He was the class teacher for the Technology subjects at Mannum High School at the relevant time. He had a broad experience both in teaching and in private industry. He was competent and experienced in his job and there is nothing in the Plaintiff’s complaints that the Defendant was negligent in employing him.
On this particular day he advised the students that the work would continue on the go-kart but it wasn’t to be started. The Plaintiff was not present and did not hear this instruction as he was not at this stage part of the course.
The Plaintiff approached the go-kart from outside the building and hence, at no stage, was Mr Hatcher aware of his presence. Mr Hatcher was inside the building and thus at the relevant time those students who were outside with the go-kart were not under any direct supervision.
It was well known to Mr Hatcher and indeed the students that the engine lacked a shroud covering the fly wheel. The engine was thus in an obviously dangerous condition. An experienced gardener, if the engine were in a lawnmower, would not be expected to start the engine in such a condition, let alone an inexperienced school student.
Some effort at security had been made by Mr Hatcher placing the starting rope inside his office to which only he had access.
As I have pointed out, the go-kart and the starting of it was an obvious allurement to students of the age who would have been attending Mannum High School. Placing the starter rope in Mr Hatcher’s office was hardly, however, an adequate means of securing the go-kart from starting. As Mr Hatcher himself observed, rope was readily available. Other methods to prevent the starting of the motor would have been to remove the spark plug or to ensure that the petrol tank was empty by draining it. Petrol was available but was kept under lock and key.
It was quite foreseeable that a student such as the Plaintiff might approach the go-kart when it was outside the roller doors and tinker with it. This is especially so if some of his friends were working on it. I find that on this occasion some of his friends were working on the go-kart and that the Plaintiff approached and attempted to start the go-kart.
He probably used a cord other than the cord kept for the motor in the office of Mr Hatcher. Witnesses described the cord used as having no handle whereas the cord kept by Mr Hatcher did have a wooden dowel as a makeshift handle. Further, Mr Hatcher never noticed the cord missing from his office and I regard it as unlikely that students would have entered the privacy of his office, removed the cord and returned it after the accident. It is far more likely that they used another cord located somewhere in the Technology Centre.
In the circumstances, the Plaintiff was doing no more than might have been foreseen as a likely consequence of the go-kart being placed outside the Technology building roller doors in an area with pupils of, or about, the age of the Plaintiff, approaching the age where they are just about to learn to drive motor vehicles and beginning to have an interest in them.
I find that after starting the engine Mr Loechel attempted to adjust the speed by moving a lever on the engine. At that time he used his right hand to adjust the engine and his left hand held the loose cord. I find that the cord somehow became entangled in the spinning vanes of the engine suddenly drawing his hand towards the rotating vanes.
In this manner the Plaintiff suffered his injury.
The potential for such an accident was always present hence the fact that standard engines of this sort are guarded with a shroud which has the function of both shielding the rapidly rotating vanes on the fly wheel and secondly of directing a flow of air over the fins for cooling purposes.
Discussion of Liability
In the Commonwealth v Introvigne (1981 – 1982) 150.CLR.258 at 271 Mason J spoke of a school authority coming under a duty to ensure that reasonable care is taken of pupils attending the school.
The immaturity and inexperience of the pupils and their propensity for mischief suggests that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.
Brennan J spoke of:
The foreseeable folly of youthful exuberance. (See page 280)
In my view the school authority owed a duty to the Plaintiff which was not merely satisfied by the employment of competent teaching staff and which had to take into account “The foreseeable folly of youthful exuberance”.
The Plaintiff asserts negligence on the part of the Defendant in employing Mr Hatcher who it claims was not suitably qualified for the job. I reject all claims of negligence based on such an assertion. I find Mr Hatcher to have been a suitably qualified and experienced teacher. He impressed me as being a competent teacher within his field and there is nothing to any of the allegations that the Defendant was negligent in employing him.
That is not the end of the matter, however.
The motor was clearly in a dangerous condition. It lacked a shrouding which meant that rapidly turning vanes, which performed the same function as a fan, were exposed on the side of the engine. The controls of the engine were located on the engine itself thus making it necessary for anyone adjusting the engine to place his hands near the engine. The accident that took place was entirely foreseeable.
In order to prevent the foreseeable injury the starter cord was kept in the office of Mr Hatcher to which no-one else was permitted access and certain safety instructions were given to pupils doing the Technology (Automotive) course but not, so far as I am aware, on the evidence presented, to the pupil population in general.
This was an inadequate precaution given the proclivity for students of the age of those attending Mannum High School to tinker with things automotive. The go-kart with an engine was certainly such an object.
In Wyong Shire Council v Shirt (1980) 146 CLR 40 Mason J (with whom Stephen and Aitken JJ agreed said at p 47 - 48:
The [Tribunal] of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way or response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
In this case the engine was obviously dangerous. It lacked the guarding that most people know is present on similar air-cooled engines to prevent injury caused by the rapidly rotating vanes.
This was not the case of an intrinsically harmless object being used dangerously by pupils. This was a dangerous object intentionally brought on the school premises by the school authorities.
The school must have known that the object was dangerous. Yet there is no evidence of the school having done anything whatsoever to prevent or warn students not in Mr Hatcher’s Technology (Automotive) class not to try to start the dangerous engine.
Moreover, the school must have appreciated that this sort of object was just the very thing that school students would be likely to want to interfere with and tinker with.
The risk was high and the degree of the probability of its occurrence was high. The expense, difficulty and inconvenience in taking alleviating action was correspondingly low. All that needed to be done was either to not place the engine on the go-kart until it was safe, or to keep the go-kart under lock and key at all times when a teacher was not present, or to render the engine incapable of starting by removal of the spark plug or the fuel or to immediately get hold of a replacement cover; or to maintain direct supervision of it when it was being used or worked on.
In my view the school authorities were negligent in a combination of the following:
(1)Not immediately providing a suitable cowling or cover to the fly wheel of the engine. The engine appears to have been without one for some time.
(2)Not rendering the engine incapable of starting by either removal of the spark plug or draining of the fuel tank.
(3)Not providing sufficient supervision by not permitting the students to have access to the go-kart without immediate adult supervision. (It is to be remembered that the supervision in this instance need not be during the entire school day but only during such time as the go-kart is not in storage and is thus accessible to the students.)
(4)Not giving instructions to the entire school that under no circumstances was the engine to be started by students (at least while it lacked a fly wheel cover).
As such, paragraph 8 of the Statement of Claim has been proved.
Contributory Negligence
I turn to the question of whether the Plaintiff is contributorily negligent in relation to this accident. The standard of care for contributory negligence is that expected of a child of sixteen years when faced with the circumstances of the plaintiff. (See McHale v Watson (1996) 115 CLR 199)
I have already found that at the relevant time the Plaintiff was not part of the class that was working on the go-kart. In those circumstances it was none of his business and he should not have intervened and tried to start the go-kart when it was not part of any class work he personally was performing.
It must have also have been apparent to him that the go-kart lacked a shrouding. It was apparent at the time and was apparent from his earlier involvement in the class when the engine was obtained and attached to the go-kart.
Further, he must have been aware that the go-kart had been started on previous occasions without the cowling being present. He was of a sufficient age that he should have been aware that the protruding vanes around the fly wheel constituted a danger.
I have come to the view that the Plaintiff is guilty of contributory negligence. His guilt however is much less than that of the Defendant. His negligence was in starting the engine. There is no suggestion that he was doing anything stupid and untoward in any other respect. I do not regard his attempt to adjust the throttle as negligence. It was mere inadvertence and on the spur of the moment.
I will reduce the Plaintiff’s claim by 15% having regard to his own contribution to the accident by starting the motor in that state and having inadequate regard for his own safety.
Quantum
The Plaintiff received injuries to the dorsum of his left hand and wrist with significant soft tissue damage. He was referred to the Royal Adelaide Hospital for further treatment.
His general practitioner, Dr Peter Joyner, claims, and I accept that, he is left with a scar over the dorsum of the wrist, reduced sensation on part of the dorsum of the hand, a degree of reduction of power in his left hand of the order of about 20% and proneness to develop cramp in the muscles of the hand if he uses it for some time.
There would appear to be no problem with the Plaintiff’s ability to lead a normal life.
Pain, Suffering and Loss of Amenities
Initially the Plaintiff was taken to the Mannum Hospital and then by ambulance to the Women and Children’s Hospital in Adelaide. He was there for about four or five days during which time surgery was performed on his arm.
For a time the Plaintiff was unable to dress himself or tie his shoelaces and his father had to cover his wound with a plastic bag when he had a shower.
He also required parental assistance in cutting up his food.
The Plaintiff had a cast on his hand for about three weeks.
The Plaintiff returned to school completing Term 1 of Year 11 before he obtained work at a firm called Magnus (Australia), a metal fabrication business, where he initially performed spray painting. Sometimes during the performance of spray painting he would receive cramping and have to work on lighter duties. The scar on his hand would go purple during the cold weather. His work also involved cutting up steel and when he had to drag heavy steel items he would experience cramping. When he changed to welding work the cramping in the hand would continue. I accept the Plaintiff when he says he gets pins and needles in the back of his hand and occasional cramping. It is likely that the Plaintiff will continue to receive the odd pain from time-to-time during the rest of his life.
I would assess general damages at $30,000 of which I assign $15,000 for the past and $15,000 for the future.
Past economic loss
At the time of the injury the Plaintiff was performing part time employment after school hours, and on the weekends, at the local supermarket. The work involved packing shelves, sweeping floors, cleaning rubbish and working on the checkout.
The Plaintiff was working approximately ten to fifteen hours a week and earning approximately $100 net pay per week.
I will allow ten weeks at $100 being $1,000 for past economic loss.
Future economic loss
Generally speaking the Plaintiff has made a good recovery from his injury.
He returned to school in the year of the accident, 2001, and obtained employment after Term 1 in the following year at Magnus Australia.
The Plaintiff, by temperament and training, is likely to be always involved in manual type labour. He is a born and bred country lad who is likely to be able to deal with the ordinary knocks of daily life satisfactorily.
His ongoing difficulties are as described.
He is at increased risk of exacerbating a fairly minor problem with the hand in the sort of work he is likely to be involved in. He is likely to be able to perform, albeit at increased risk of minor exacerbations, manual type labour involving the use of the hands and metal products.
I can do no more than apply a broad brush approach to the assessment of future economic loss. In my view the Plaintiff is likely to have some days off work during his career by virtue of exacerbations of a tender hand and he may have to avoid jobs that require continual, strong exertion with the hands and fingers.
I would assess future economic loss at $25,000.
Summary
In summary the Plaintiff is to have an award of:
(1) “Pain and Suffering” $30,000 (2) “Past Economic Loss” $ 1,000 (3) “Future Economic Loss” $25,000 Total $56,000
This is to be reduced by 15% having regard to the Plaintiff’s own responsibility for the accident.
Accordingly there will be judgment for the Plaintiff for $47,600.
I will hear the parties as to interest, costs and any ancillary orders.
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