Macey v Macquarie Generation & HIS Engineering Pty Ltd

[2007] NSWDC 242

Reported Decision: 6 DCLR (NSW) 45

District Court

CITATION:	Macey v Macquarie Generation & HIS Engineering Pty Ltd [2007] NSWDC 242
HEARING DATE(S):	8-12 , 15-16.10.07
JUDGMENT DATE:	22 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict for the Macquarie Generation on Mr Macey’s claim; 2. Verdict for HIS Engineering Pty Ltd on Macquarie Generation’s cross claim; 3. Proceedings adjourned to a date to be fixed to hear argument concerning the costs of the proceedings.
CATCHWORDS:	Workplace injury - S151Z - Proof of employment & payment of compensation - Breach of statutory duty: whether to be determined under Civil Liability Act - Standard of care to be applied
LEGISLATION CITED:	Civil Liability Act 2002 Occupational Health & Safety Act 2000 Workers Compensation Act 1987
CASES CITED:	Fox v Wood (1981) 148 CLR 438
PARTIES:	Jason MACEY MACQUARIE GENERATION HIS ENGINEERING PTY LTD
FILE NUMBER(S):	Newcastle 56 of 2006
COUNSEL:	Plaintiff - C A W Hart Defendant/cross claimant - P J Menary Cross defendant - D Shoebridge
SOLICITORS:	Plaintiff - Bale Boshev Lawyers Defendant - Sparke Helmore Cross defendant - Fisher Cartwright Berriman

JUDGMENT

1 Jason Andrew Macey claims that he suffered an injury to his right shoulder in the course of his employment as a boilermaker at Bayswater Power Station.

2 He holds Macquarie Generation, the owner and occupier of the power station, responsible for his injury, claiming breach of statutory duty and negligence.

3 Macquarie Generation cross claims against HIS Engineering Services Pty Limited that it employed Mr Macey at the time of his injury, that it owed him a non delegable duty of care as well as obligations under the Occupational Health and Safety Act 2000, and that it was in breach of its contractual obligations to Macquarie Generation.

4 The issues were:

(a) precisely how Mr Macey's injury occurred;
(b) whether the means of access provided to the area of the Power Station in which Mr Macey was working were such that they breached the requirements of the Occupational Health and Safety Act 2000;
(c) whether Mr Macey's injury was the result of negligence on the part of Macquarie Generation;
(d) the extent of any liability of HIS for the injury suffered by Mr Macey;
(e) whether there was contributory negligence on the part of Mr Macey;
(f) the extent to which Mr Macey's shoulder was injured in the course of any workplace accident;
(g) the compensation to be awarded to Mr Macey;
(h) the application of s 151Z of the Workers Compensation Act 1987 to any damages recovered by Mr Macey;
(i) it being admitted that HIS breached its contractual obligations to Macquarie Generation, the damages arising from the breach.

BACKGROUND

5 It was Macquarie Generation's practice to shut down each of the four

boilers at Bayswater Power Station in rotation at two yearly intervals for maintenance work.

6 HIS contracted with Macquarie Generation to undertake maintenance work on boiler No. 4 at the power station during the shut down period in April/May 2003.

7 Mr Macey was engaged as a boilermaker at Bayswater Power Station during this shutdown period.

8 Various methods were provided to access the ducts within the boiler. For the purposes of Mr Macey's claim attention was focused on manhole 4B, a type A manhole, measuring 500 mm x 500 mm externally and 500 mm x 700 mm internally. There was a 45° slope at the bottom edge of the manhole towards the inside of the primary gas duct within the boiler. The wall of the boiler comprised 200 mm thick cladding.

9 Grab rails were provided externally and internally above the top edge of the manhole. A metal bar or rung was installed on the internal wall at a height of 500 mm above ground. The purpose of this metal bar was to provide a step or footrest from which persons entering the primary gas duct through the manhole could step down to the internal floor.

10 It was necessary to enter the primary gas duct by stepping through the manhole from an adjacent metal gantry. The position of the gantry in relation to the manhole depended upon whether boiler No. 4 was operating in its hot or cold state. During periods of shut down it was in its cold state. According to a measured drawing prepared by Mr Enks, Asset Manager, Bayswater Power Station, in its cold state in April 2007 the gap from the outer wall of the boiler to the platform of the gantry was approximately 190 mm and the platform was approximately 450 mm below the bottom edge of the manhole.

11 Mr Macey claimed that as he entered the manhole on 25 April 2003 he dislocated his right shoulder.

ISSUE 1 – HOW THE INJURY OCCURRED

12 The outcome of this issue depended upon my assessment of Mr Macey's credit. He was not an impressive witness.

13 He provided a number of different versions of the way in which he suffered his injury. Differing versions were provided to medical practitioners, both treating and medicolegal, to Mr Macey's expert, Dr Hill, and as his evidence progressed at the hearing.

14 Mr Macey first sought medical assistance for his right shoulder at Singleton Hospital on 4 May 2003. He reported to the triage nurse that he had injured his arm swinging down a hole at work. Dr Ella at the hospital recorded (exhibit X):

Injured right shoulder lifting himself into a hole at work.

15 Claims Intervention reported on 10 June 2003 (exhibit C) the following description:

… he said he first had to arch his back, place his legs down, then his arms, then arch his back again, then throw himself in and turn at the same time.

16 Claims Intervention also recorded that Mr Macey reported the incident to his supervisor, Mr Dickson, and that he stopped working for approximately an hour after the incident. Later that day his shoulder clicked and it felt like it was almost normal.

17 Dr Graham who examined Mr Macey on 6 June 2003 reported (exhibit C):

Mr Macey tells me that on 25 April 2003 he was getting through a low access doorway in the course of his work. This required holding onto a bar and he was taking most of the weight through his right arm. He twisted as he was exiting the door and experienced acute pain and paralysis of the right arm. He rested a moment, lifted the arm and felt a click after which the symptoms abated.

18 Dr Posel on 5 August 2003 (exhibit D1) reported:

On 25 April 2003 Jason jumped through a hole in the wall at the power station. To get through this small hole he had to swing himself through, he twisted at the time and felt crack in his right shoulder.

19 Dr Noll on 28 September 2003 reported (exhibit E):

He tells me that he dislocated his right shoulder while twisting as he climbed through a manhole.

20 Dr. Pillemer on 10 June 2004 reported (exhibit F):

Mr Macey explained to me how on 25 April 2003 he had been working underground and working extremely hard, and he says he felt strain in his right shoulder from all the welding he was doing at the time.

On one occasion he had to get into a vertical manhole in the floor, which he had to jump through, and once he was through he had to immediately arch his body forwards. He said in order to get into the hole, he was holding onto a bar, and as he twisted on going forward his right arm remained holding the bar and from his demonstration today, it seems that his arm was forced into abduction and external rotation.

21 Dr Beiers reported on 27 July 2006:

He was attempting to get through an air duct in the power station. To manoeuvre his body through he was required to put his feet through first, arch his back and then, while holding onto a bar, to then get his upper body through the manhole. As he was getting his upper body through he felt his right shoulder ‘go’.

22 Dr Bracken reported on 28 July 2006 (exhibit H):

Mr Macey said that on 25 April 2003 he had to get through a small access hole in an air duct to do work inside the duct. He said the access door is a small rectangular hole set low down by the floor and difficult to access. He said he had to swing himself in legs first holding a bar with his arms. He said that as his body went through the hole he thinks he slipped and twisted on his right arm which was at that time he indicated abducted and externally rotated.

23 Dr Harvey reported on 15 August 2006 (exhibit N):

He had to swing into the manhole while holding onto a bar above his head.

24 Dr Mitchell reported on 5 March 2007 (exhibit M):

Mr Macey confirmed his history of developing acute right shoulder pain at work on 24 April 2003 while entering an awkward manhole which apparently resulted in an unusual posture of the right arm.

25 Best Practice Rehabilitation reported on 24 July 2007 (exhibit K):

He reports that he was climbing through a manhole (an air duct at a power station) when he went to turn to climb down a ladder. To do so he needed to support his body with his arms on a bar overhead. He reports his foot slipped while he was holding onto the bar and he twisted.

26 In describing the mechanism of Mr Macey's injury, only the report of Best Practice Rehabilitation, in July 2007, made reference to his turning to face the manhole to climb down into the primary gas duct. All other reports referred to twisting as he entered the manhole although Dr Bracken noted that Mr Macey thought that he had slipped and twisted on his right arm.

27 The various claim forms completed by Mr Macey shortly after the accident did not take the matter further. At most they referred to his twisting as he entered the manhole.

28 Dr Hill provided technical evidence at the request of Mr Macey. He reported on 28 November 2006 (exhibit A1):

The Plaintiff described to me the actions of getting through the door to the inner floor of the duct.

He had to sit on the edge of the platform with his feet protruding through the doorway. While holding on to the top of the doorway, he had to arch his back and move his body through the opening, while still supporting his weight with his grip on the top of the opening. He would then drop the metre or so to the inner floor surface.

...
It was while entering the opening on one occasion that the Plaintiff suffered a shoulder injury as he was twisting his body through the doorway.

29 Mr Macey initially described the incident to the court in the following terms. He said he sat on the platform of the gantry and slid along on his buttocks. He put his feet through the manhole and, taking hold of the internal grab rail, slipped through and placed his feet on the footrest which he estimated was about 550 to 600 mm above the floor inside the manhole. He said it was then necessary to snake his body through the manhole. When his head was part way through the hole, he twisted and turned around so that he was facing the manhole intending to step down as if he had been using a ladder. He turned to his left to face the manhole and as he did so he let go of the grab rail with his left hand. His foot slipped from the footrest, jerking his right arm and dislocating his shoulder.

30 A number of challenges were put to Mr Macey concerning this description of the incident. One such challenge related to the discrepancies in the previous descriptions he had provided to which I have already referred. Other challenges related to the feasibility of entering the manhole in the way he described, the way in which he exited the manhole after the alleged injury, his reasons for entering the manhole in the fashion described, the date upon which the incident occurred, the alleged failure to call witnesses to the incident, and the question of whether his shoulder was in fact dislocated in the course of this incident or at a later date.

31 Mr Macey agreed that, had he been turning to his left, it would have been necessary for him to release his right hand and not his left as described. In addition he agreed that it would have been necessary to crouch with his knees bent as he released his right hand, to change the grip of his left hand in order to face the manhole and then to stand up before stepping down.

32 He agreed that the bottom edge of the manhole was close to 500 mm above the platform of the gantry so that, had he slid across the gantry on his buttocks as described, it would have been necessary to raise his feet and it would not have been possible to reach the grab rail at the time his feet were placed upon the footrest.

33 There was evidence that Mr Macey suffered from a pre-existing condition resulting in a generalised ligamentous laxity. He had already experienced difficulties with dislocations of his left shoulder which, in spite of surgery, continued to dislocate from time to time. He said that up to the time of this incident he had regarded his right arm as his good one. The question was raised as to how, without assistance, he was able to return through the manhole using only his deficient left arm. He said he did so with difficulty by holding his painful right arm at his side.

34 Mr Enks gave evidence of his practice of entering the manhole in a forward direction, placing his feet on the footrest and stepping down into the duct. A photograph (exhibit 13) was produced showing a person entering in this fashion. Mr Enks, in his 25 years of employment at the power station, had never seen anyone enter the primary gas duct in any other way. Mr Flaherty was the hole watcher at the time of Mr Macey’s injury. His evidence confirmed that a number of differing methods of entry were used depending upon individual preferences. They included the method adopted by Mr Macey.

35 Mr Macey put forward a number of reasons for adopting a method of entry which appeared to be somewhat bizarre:

(a) He said he did not want to step into an area in darkness when he was unable to see what was in front of him. He later acknowledged that powerful lighting had in fact been in place.
(b) He did not want to step forward and potentially collide with deflector plates in close proximity to the point of entry. He later acknowledged that there were no deflector plates installed in this area.
(c) He said it was too far to step down from the footrest. He acknowledged that he would have been able to step down from 500 mm without difficulty, particularly when holding on to the internal grab rail.

36 Ultimately Mr Macey said that he entered in this fashion because it was his own method of entry and he felt comfortable using it.

37 Mr Macey claimed to have been injured on 25 April 2003. He said he specifically remembered the date because it was Anzac Day and he was earning triple time. Signature sheets in evidence (exhibit 14) were used, according to Mr Flaherty, to record persons who entered and left the manhole. Each person was required to sign the sheets on each entry and exit from the manhole. The signature sheets in fact suggested that in the majority of cases they were signed at the start and end of each shift. Mr Macey’s signature did not appear on the sheet for 25 April 2003.

38 It was suggested on behalf of Mr Macey that documents in addition to the signature sheets existed upon which Mr Flaherty ticked off persons as they entered and exited the manhole. This concept was raised by counsel for Mr Macey. It was not part of the evidence of Mr Flaherty or Mr Enks.

39 Notwithstanding the absence of a record of Mr Macey’s presence in the area of the manhole on 25 April 2003, Claims Intervention reported (exhibit C) the following statement of Mr Dickson, who had been Mr Macey’s supervisor at the time:

On 25 April, Mr Masey (sic) injured his shoulder when he was climbing through a manhole. He said he did not witness this incident, but did confirm that Masey (sic) verbally reported the injury to him on the day of the incident.

40 Mr Dickson was not called to suggest that this report was incorrect.

41 Mr Macey said that after exiting the manhole he rested his arm on the railing on the gantry. After a while his shoulder clicked back into position and his pain was immediately diminished to the point where he was able to return to work. Notes of Dr Ella made at Singleton Hospital on 4 May 2003 recorded that Mr Macey told him that the shoulder had been OK on the morning following the incident but that it had been re-injured during that day. Dr Harvey reported that Mr Macey told him he had re-injured the shoulder on 26 April 2003 when he struck it on a deflector plate while working.

42 Mr Macey denied that any subsequent injury had occurred. He said he had been prompted to obtain medical treatment some days later when a further dislocation of his right shoulder occurred as he was turning the steering wheel on his car.

43 It is probable that an incident did occur on 25 April 2003 as Mr Macey entered the manhole. Mr Flaherty confirmed that an incident involving Mr Macey’s shoulder occurred as he entered the manhole. Mr Dickson confirmed that an incident occurred on 25 April 2003 notwithstanding the absence of Mr Macey’s signature on the signature sheet for that date.

44 I reject Mr Macey’s evidence that the injury to his shoulder occurred as he turned to face the manhole for the following reasons:

(a) This version is substantially different from the majority of histories recorded since the incident occurred. The first reference to his having slipped is contained in the report of Dr Bracken, more than three years after the incident. The first reference to his turning in this fashion is contained in the Best Practice Report more than four years after the incident. It is likely that Mr Macey’s memory of events would have been more reliable at times closer to the date of the incident.
(b) I accept that histories taken by doctors are to be approached with caution, particularly since they are often the result of questions asked. Further in this case, Mr Macey was not an articulate witness so that much of his evidence was given by way of physical demonstration. It was only through patient and detailed cross examination that it was possible to gain an appreciation of what he was describing and of the shortcomings in that description. One could therefore excuse some discrepancies in medical histories.
(c) There could be no excuse for the absence of reference in Dr Hill’s report to the presence of the footrest within the manhole and to Mr Macey’s turning. The explanations offered for this were that Dr Hill had misinterpreted the information provided and that he had not been told that Mr Macey had to drop one metre to the floor or that he had twisted his body through the manhole. These explanations were unconvincing and are rejected.
(d) It is highly improbable that Mr Macey entered the manhole in the fashion described, given the relative heights of the platform of the gantry and the bottom edge of the manhole.
(e) Mr Macey’s initial explanations for adopting this method of entry were subsequently invalidated.
(f) It is improbable that, with an injury to his right shoulder of the severity claimed, Mr Macey would have been able to exit the manhole without assistance. This would have been particularly difficult for him having regard to the pre-existing weakness of the left shoulder.

45 In making these findings, I have not been influenced by the failure to call the witnesses named in Mr Macey’s claim form. It was unclear whether they in fact saw what happened and therefore whether they could have assisted the court. I consider it sufficient that Mr Flaherty, the hole watcher at the time of the incident, was called.

46 The result is that I find that the injury occurred when Mr Macey twisted his body as he entered the manhole in a forward direction. I find that the incident did not involve any slipping on the footrest or any turning of his body to face the manhole. I proceed to determine the remaining liability issues on this basis.

ISSUE 2- BREACH OF STATUTORY DUTY

47 HIS submitted that the standard of care involved in deciding a claim for breach of the provisions of the Occupational Health and Safety Act 2000 was that set out in Part 1A of the Civil Liability Act 2002. I do not accept this proposition.

48 S 5A of the Civil Liability Act applies Part 1A to:

…any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

Negligence is defined as :

Failure to exercise reasonable care and skill.

49 While this part of Mr Macey’s claim is brought under statute it is not a claim for damages resulting from negligence. The claim is that Macquarie Generation failed to comply with the obligations imposed upon it by the Occupational Health and Safety Act.

50 This part of the claim is therefore to be dealt with on the basis of the standard of care imposed by that Act and not by reference to the principles set out in Part 1A of the Civil Liability Act.

51 Mr Macey asserted that Macquarie Generation was the controller of the Bayswater Power Station premises for the purposes of the Occupational Health and Safety Act.

52 Macquarie Generation’s response was that virtually all maintenance work undertaken during shutdowns was let to contractors. In this case the contractor was HIS pursuant to a contract dated 24 February 2003 (exhibit 11A). Under the contract HIS was obliged:

(a) to undertake safety audits prior to commencing contract works; and
(b) to accept responsibility for the safe working conditions of its employees.

53 On this basis Macquarie Generation claimed that it was not the controller of that part of the power station on which Mr Macey was working at the time of the incident and that it had relied on HIS to inform it of any safety issues.

54 Notwithstanding the provisions of the contractual arrangements the evidence established that Macquarie Generation:

(a) approved the safety audit undertaken by HIS before permitting contract work to commence;
(b) provided personnel to conduct induction sessions for HIS employees;
(c) issued permits to work to HIS employees;
(d) audited the safety management regimes of HIS;
(e) employed its own safety officers whose duties extended to regular inspection and spot checks of HIS employees to confirm the safety of their work methods.

55 This evidence in my view established that Macquarie Generation maintained a measure of control sufficient to qualify it as the controller of the premises on which Mr Macey was working at the time of the incident.

56 On the question of the standard of care imposed by the Act, my attention was drawn to recent changes in legislation. The Factories Shops and Industries Act 1962 required that safe means of access be provided to a place of work so far as is reasonably practicable. The Occupational Health and Safety Act, ss 8 and 10, impose a number of duties, including that of ensuring that work premises are safe and without risks to health. This obligation extends to the means of access to or exit from a place of work.

57 Controllers of premises are required by clauses 34, 35 and 36 of the Regulations to:

(a) identify foreseeable hazards;

(b) undertake a risk assessment; and

(c) eliminate the risk or, if it is not reasonably practicable to do so, control the risk.

58 It would appear therefore that the obligations imposed upon a controller by the Act place emphasis on the requirement firstly to identify foreseeable hazards and then to eliminate or control them.

59 For Mr Macey it was argued that a very high standard of care had been imposed. While not propounding a strict liability, it was stated that Macquarie Generation bore the onus of proving that there was no reasonably practicable alternative to the means of access provided by the manhole to the primary duct. I accept this as a correct statement of principle.

60 It also required that there be a foreseeable hazard. It was argued for Mr Macey that the omission of the term so far as is reasonably practicable from the current legislation had the result that the element of reasonability was not imported into this statutory obligation. This, in my view, would result in strict liability, a feature expressly disavowed by Mr Macey.

61 The claim of breach of statutory duty is not covered by the Civil Liability Act 2002.

62 Macquarie Generation was the controller of the Bayswater Power Station premises with consequent obligations under the Occupational Health and Safety Act.

63 The Occupational Health and Safety Act does not impose obligations of strict liability.

64 The onus of establishing that there was no reasonably practicable alternative to the means of access through manholes to the primary gas ducts rested upon Macquarie Generation.

65 The hazards to be identified by controllers in compliance with the Regulations are those that are reasonably foreseeable. The onus of establishing this factor rested on Mr Macey.

66 The statement of claim set out the same particulars in respect of both the claim of breach of statutory duty and that of negligence. They related to:

(a) the physical characteristics of the manhole which rendered the working environment unsafe, namely that it was small, low and awkward, unsafe and that it posed a risk of injury when entered;
(b) the failure to provide instruction on safe working methods so as to avoid the risk of injury; this particular being subsequently refined to allege a failure to provide instruction on the safe method of entry through the manhole;
(c) failure to prevent or remove a hazard by not heeding warnings and not creating a larger, safer point of entry to the primary gas duct.

67 Physical characteristics: It was obvious that the manhole was limited in size and that some flexibility was required of persons entering it. I do not accept, as propounded for Mr Macey, that the evidence established that the skills of a gymnast were required.

68 The manholes were a very common feature not only at Bayswater Power Station but in other power stations in NSW and throughout the world. Mr Enks stated that there were 98 such manholes in boiler No. 4 alone.

69 Mr Macey agreed that he had accessed parts of various power stations in the Hunter Valley through manholes of the same type 100’s of times and that he had suffered a mishap once only.

70 Mr Enks had similarly been a frequent user of this type of manhole without incident in the course of his 25 year career at Bayswater Power Station. He was unaware of any incident involving injury to any person obtaining access through a manhole of the same or similar type. From 1991 to 2007 Mr Enks was in a position at the power station where he received reports of injuries. Aside from Mr Macey’s claim, he had not received any report in that period of injury to persons in the course of passing through a manhole.

71 There was no other evidence of any injury suffered in the course of obtaining access through the manholes.

72 I find that, notwithstanding the limited size of the manhole, the absence of any record of injury in the course of the extensive use of manholes of this type over an extended period indicates that its physical characteristics were not such as to render it unsafe or posing a risk of injury when entered.

73 The compulsory induction sessions conducted by Macquarie Generation did not include instruction on any appropriate, safe method of accessing the manholes.

74 Mr Enks maintained that this was unnecessary because, as a matter of common sense, there was only one practical method of entry, that being the method he described.

75 Mr Flaherty, however, gave evidence of a number of methods of entry he had witnessed in his capacity as hole watcher.

76 Mr Macey stated that he had not needed instruction on how to access the manholes.

77 I find that no instruction of the method of entry to manholes was provided.

78 Mr Macey said that early in the period of his work at Bayswater Power Station in April 2003 he raised with four men, whom he believed were Macquarie Generation employees, the issue of enlarging the size of the manhole so that ventilation within the primary gas duct would be improved and it would be easier to recover personnel who may be injured while working inside. He did not see any of these men write anything in response to his suggestion on the notebooks they were carrying. They told him they would look into it.

79 Mr Macey said that he had raised this issue with them because he had been told that if he noted a hazard he should report it. Having done so, he did not consider it necessary to raise the matter again.

80 According to Mr Macey it would take 10 minutes to cut a larger hole and one hour to weld it up at the end of the shut down period.

81 No written record of any such suggestion was in evidence. There was no evidence that any other complaint had been made to Macquarie Generation concerning the size of any manhole. Mr Enks was unaware of any complaint to suggest that passing through the manhole presented a safety hazard.

82 In the light of the evidence concerning the procedures in place at the power station to deal with matters of safety, I find that it improbable that Mr Macey in fact made any complaint of the kind stated. In any event, the alleged complaint concerned ventilation and evacuation of injured personnel. The issue said to have been raised with Macquarie Generation did not concern a potential safety risk involving the means of access through the manhole.

83 It is clear from the authorities that the issue of foreseeability is to be judged from the point of view of Macquarie Generation prior to the occurrence which is the subject of a claim. Further, in the light of the concession made on behalf of Mr Macey that the statutory liability is not strict, an element of reasonable foreseeability must exist.

84 I have already referred to evidence indicating that:

(a) Bayswater Power Station was constructed over 20 years ago.
(b) Each of the four boilers was shutdown in rotation at two yearly intervals.
(c) There were 98 manholes in boiler No. 4 alone.
(d) Similarly designed manholes were in service in other NSW power stations and throughout the world.
(e) Other than the claim brought by Mr Macey, there had been no reports of injury to personnel using the manholes at Bayswater Power Station.
(f) The manholes had been used thousands of times without incident.
(g) Risk assessments were undertaken by contractors and safety audits were undertaken by Macquarie Generation for the purposes of shutdown work without identification of any risks involved in accessing the primary gas ducts through the manholes.

85 In the light of this evidence I find that it was not reasonably foreseeable that in the course of accessing the manhole, Mr Macey, when twisting his body was at risk of injury.

86 To the extent that there was a risk associated with stepping down from the manhole opening to the floor of the primary gas duct, this risk had been controlled by the installation of the footrest.

87 Mr Waddell, the expert relied upon by Macquarie Generation, reported (exhibit 1a) that the doors of the manholes were relatively small in order to make them easier to seal and to minimise the effects on the structural integrity of the walls of the primary gas ducts. He stated that the position at which the manholes could be placed was limited by the need to provide longitudinal stiffeners in the walls of the primary gas ducts. These stiffeners were required to deal with the pressures placed on the walls by the build up of heat and gases during the operation of the boilers.

88 Dr Hill did not accept that the presence of stiffeners would prevent the construction of larger manholes. He noted that the drawings of the duct in question indicated that stiffeners had been cut into for the purpose of installing the current manholes.

89 Aside from this, Dr Hill’s reports were of little assistance to the court because he had been misinformed that the manhole involved was of type B, which was smaller in area than the type A manhole used by Mr Macey and he had not been informed of the presence of the footrest on the internal wall. Dr Hill suggested two solutions to deal with the risk that he identified of entering the confined space in a manner that involved twisting the body and supporting body weight:

(a) Enlarging the manhole; in this respect Dr Hill appeared to suggest that the type A manhole was of adequate size.
(b) Placing the manhole lower in the wall to eliminate the drop of one metre to the floor. Such a solution, according to Mr Enks, would make it more difficult to exit the primary gas duct. In any event, Dr Hill appeared to accept that, given the presence of the footrest, such a drop was not necessary and therefore I have inferred that he accepted that it was unnecessary to change the position of the manhole.

90 Mr Macey’s suggestion that access should have been provided by way of a full height door was not proposed as necessary by either expert witness.

91 I find that the only risk identified, namely that of dropping one metre to the floor of the primary gas duct, was in fact adequately controlled by the installation of the footrest.

92 The claim of breach of statutory duty therefore fails.

ISSUE 3 - NEGLIGENCE

93 S 5B(1) of the Civil Liability Act also requires that the risk be reasonably foreseeable. For the reasons already given, I find that in this case the risk was not reasonably foreseeable.

94 For the same reasons I consider that a reasonable person in the position of Macquarie Generation might reasonably have decided that it was not necessary to take action to address any risk involved in passing through the manhole.

95 The claim in negligence therefore fails.

ISSUE 4 – CONTRIBUTION TO THE INCIDENT BY HIS

96 The cross claim fails for the reason that Mr Macey’s claim has failed.

97 Had Mr Macey’s claim been accepted, it was clear from the contract documents that principal responsibility for the safety of the maintenance workers rested with HIS. Macquarie Generation did retain and exercise a supervisory and safety auditing role.

98 In those circumstances, had I found in favour of Mr Macey, I would hold Macquarie Generation responsible as to 30% of his damage and HIS as to 70%.

ISSUE 5 – CONTRIBUTORY NEGLIGENCE

99 Had I found in favour of Mr Macey, the evidence that no instructions were provided to the effect that there was only one safe method of accessing the primary gas ducts through the manholes would have persuaded me that no contributory negligence was involved.

ISSUE 6 – THE NATURE OF THE INJURY

100 Mr Macey stated that when he entered the manhole his right arm was jarred and he felt immediate pain. He said that, because of his previous experience with his left shoulder, he knew that the right shoulder had dislocated on this occasion.

101 After the injury his right arm would not bend and he could raise it only with the support of his left arm. After five minutes in which he was in great pain he dragged himself back through the manhole with his left arm. He then sat on the gantry with his arm supported on his knee, after which he extended it over the railing of the gantry. The shoulder then clicked back into place giving him immediate relief from his extreme pain.

102 This part of the incident was not referred to by Mr Flaherty who said only that Mr Macey stood on the gantry for a while holding his shoulder.

103 Mr Macey said he reported the incident to his foreman and then returned to work. He continued to work until the end of the maintenance contract on 3 May 2003. He said he did so by supervising trades assistants.

104 I have referred to the histories recorded by Dr Ella, Dr Harvey and Dr Pillemer of a further injury at work the following day when he struck a deflector plate. Mr Macey denied that any such incident had occurred. I do not accept that three doctors could have been mistaken in their record taking concerning the occurrence of a second incident, particularly when two of them have recorded the same circumstances.

105 However, Mr Flaherty, accepted by Macquarie Generation as a credible witness, gave evidence that established that something did happen to Mr Macey’s shoulder on 25 April 2003.

106 Having regard to Mr Flaherty’s evidence, I find that it was unlikely that the incident involved a full dislocation of the shoulder. I find that, given Mr Macey’s predisposition to ligamentous laxity, and as suggested by Dr Graham, the incident created the conditions leading to the subsequent dislocations.

ISSUE 7 - COMPENSATION

107 In 1996 Mr Macey had surgery on the left shoulder. His shoulder continued to dislocate after this surgery.

108 In 1997 Mr Macey suffered a back injury with ongoing symptoms which he claimed to have overcome through exercise. Absolute Injury Management reported (exhibit J) that Mr Macey had stated that he suffered frequent flare ups of back pain which limited his functional capacities. He ultimately did concede that he continued to suffer from back pain of varying degrees.

109 Various medical experts reported that Mr Macey had informed them that he ceased sporting activities after his injury in April 2003. It was conceded by Mr Macey, however, that he had not engaged in many such activities since he suffered his back injury in 1997.

110 Mr Macey was referred to Dr Posel in relation to his right shoulder injury and, after some reluctance and a second opinion, he accepted Dr Posel’s recommendation of shoulder replacement surgery. This was undertaken in November 2003.

111 After surgery he said there was some improvement but his right shoulder continues to dislocate regularly.

112 I have assessed this as having a considerable effect on his day to day life, compounded as it is by his pre-existing conditions affecting his left shoulder and his back. Mr Macey was a young man of 26 at the time of the injury, he is now only 30 years old.

113 In the circumstances I assess his claim at 30% of a worst case.

114 The claim for the past in the sum of $18,379.32 was not challenged.

115 For the future Mr Macey claimed $8,000 for medication, general practitioner and specialist review. He currently uses no prescribed medication, relying on fish oil and vitamin C. There was no evidence that these preparations assist his condition. There was no evidence of regular attendances upon his general practitioner or of any specialist reviews apart from one consultation with Dr Posel following surgery. The medical evidence indicated that no further treatment was likely to assist his condition. In the circumstances, I would allow a modest sum for future expenses of $2,000.

116 Mr Macey is a qualified boilermaker. At the time of the incident he was working on a casual or freelance basis for a number of employers for about one half of each year.

117 After the incident he returned to work with HIS on 30 April 2004 on light duties. He resigned on 23 June 2004. He did so after having been given the option of resigning or being terminated. This situation arose because of a dispute between Mr Macey and another HIS employee.

118 Since then he has held three further positions as a boilermaker engaging in work of a lighter nature with:

(a) Bradken Engineering between November 2005 and March 2006. He worked full time with overtime when his levels of pain permitted it. The evidence was that Mr Macey took a substantial amount of sick leave because of shoulder and back pain, on occasions between two and four days a week. He resigned from this position after complaints by his employer about these periods of absence.
(b) Twojay Engineering from June 2006 to July 2006. This position was lost because of dispute with his employer, this time generating police involvement.
(c) Mr Macey’s current employment is with Legra where he repairs pumps. He earns $26 per hour for up to 48 – 50 hours a week when work is available.

119 Mr Macey also works as a DJ at a number of venues earning $300 to $600 per night, depending upon the hours involved. He is helped by friends to set up his equipment. He is hoping that at one of these venues he will secure one regular engagement every second week for a fee of $500.

120 Mr Macey has also invented a number of items of equipment for which he plans to seek patents.

121 As to the future, he has ambitions to retrain as a mechanical engineer designing mining equipment but this depends upon securing funding to meet educational expenses.

122 Mr Macey agreed that in the employment applications completed for Bradken Engineering and Twojay Engineering he had referred to his back injury but made no reference to any problems with either shoulder. He insisted that he had informed both employers of his difficulties with his right shoulder.

123 Dr Posel certified Mr Macey as fit to return to full time unrestricted duties in August 2004. However, other medical evidence indicated that his boilermaking activities were restricted to light work.

124 I find that these restrictions are the result of both the back injury and the shoulder injury. Further, it is evident that Mr Macey retains considerable residual income earning capacity as a boilermaker notwithstanding these restrictions. The claim made for income loss as set out in the schedule of damages (exhibit OO) is therefore overstated.

125 I would allow him the full amount claimed of $850 net per week to the date upon which he was certified by Dr Posel as fit to return to work. Thereafter, to take account of the contribution of the back injury to the restrictions on his income earning capacity, I would allow him one half of the amount claimed, namely $125 per week, to the date of the hearing.

126 The same allowance would be made for the future, namely $125 per week in respect of lost income earning capacity.

127 Superannuation would be allowed at 9% on both past and future income loss.

128 The Fox v Wood claim would be allowed in the unchallenged sum of $11,862.94.

ISSUE 8 – S 151Z OF THE WORKERS COMPENSATION ACT 1987

129 As far as I understood this argument, it was to the effect that, in order to obtain the benefits of the provisions of s 151Z of the Workers Compensation Act, it was necessary for Macquarie Generation to prove that workers compensation had been paid by HIS Engineering Services Pty Limited in its role as Mr Macey’s employer. I understood the argument advanced on behalf of Mr Macey to be that it was necessary for Macquarie Generation to prove these elements independently of any other evidence which established that HIS Engineering Services Pty Limited employed him and paid him compensation.

130 This submission arose out of the confusion that became apparent in the course of preparation of the matter for hearing as to which of HIS Engineering Pty Limited or HIS Engineering Services Pty Limited was Mr Macey’s employer at the time the incident occurred.

131 The statement of claim was amended to plead that HIS Engineering Services Pty Limited was the employer. Further there was evidence that this company was in fact Mr Macey’s employer. Proof of this fact could be found in the tax returns (exhibit LL).

132 In addition there was evidence of the payment of compensation by HIS Engineering Services Pty Limited and evidence that the same company was the party that contracted with Macquarie Generation to perform the maintenance work on which Mr Macey was engaged at the time of the incident.

133 I do not accept that this evidence should be ignored and that Macquarie Generation should be required to prove employment and payment of compensation by some other independent means.

ISSUE 9 – DAMAGES FOR BREACH OF CONTRACT

134 This issue was left to be debated when the outcome of Mr Macey’s claim was known.

135 In the circumstances it will be unnecessary to deal with it.

INFERENCES

136 It was submitted for Mr Macey that I should draw inferences that Macquarie Generation’s position would not be assisted by the evidence of a number of witnesses who were not called to give evidence.

137 Those witnesses included:

(a) Mick Dickson, his supervisor at the time of the incident. Material attributed to Mr Dickson in the report of Claims Intervention was accepted by Macquarie Generation. Not calling him was therefore irrelevant to the outcome of the proceedings.
(b) Mr Broderick, who I understand was employed by HIS as its Occupational Health & Safety Officer at the time of the incident. It was suggested that he should have been called to give evidence that he accepted Mr Macey’s claim as genuine. Evidence that the claim was accepted for workers compensation purposes was not in issue in this case.
(c) Mr Warren White, the person shown entering the primary gas duct in the photograph (Exhibit 13) as to the level of difficulty involved in entering the manhole. In my view, this was a matter for Mr Macey to prove. He did not put this question to Mr Flaherty, whose task it had been to watch persons entering and leaving the primary gas duct through the manhole.
(d) Mr Neely, the manager of the power station, as to various documents, including design drawings, safety audits, job safety analyses for confined space access, hole watchers records, identification of Macquarie Generation personnel to whom Mr Macey complained. It was not made clear what evidence Mr Neely could have added to that of Mr Enks who was specifically charged with responsibility for these matters.
(e) Mr Huw Thomas, an employee of Macquarie Generation who remained in court throughout the proceedings. Again, it is unclear what further evidence could have been provided by Mr Thomas and therefore the precise nature of the inference to be drawn.

138 In addition, it was submitted that documents should have been provided in evidence by Macquarie Generation. Those documents included engineering drawings concerning the tolerances of movement of the boiler in hot and cold states. Mr Enks’ drawing, admitted without objection, provided the relevant evidence, namely the dimensions when the boiler was in its cold state.

139 Much was made of the failure to produce what were said to be hole watcher’s documents. There was in fact no evidence that any documents existed in addition to the signature sheets that were in evidence. If there were any, they were documents completed by Mr Flaherty, an employee of HIS, and therefore not documents of Macquarie Generation. However, ultimately, the outcome in this case did not turn upon any issue that might have been affected by the existence of additional hole watcher’s documentation.

ORDERS

140 Verdict for the Macquarie Generation on Mr Macey’s claim.

141 Verdict for HIS Engineering Pty Ltd on Macquarie Generation’s cross claim.

142 Proceedings adjourned to a date to be fixed to hear argument concerning the costs of the proceedings.