| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MARSDEN -v- UNIMIN AUSTRALIA LIMITED [2003] WADC 61 CORAM : FENBURY DCJ HEARD : 4 DECEMBER 2002 DELIVERED : 18 MARCH 2003 FILE NO/S : CIV 1961 of 2000 BETWEEN : ALAN DAVID MARSDEN Plaintiff
AND
UNIMIN AUSTRALIA LIMITED
Defendant
Catchwords: Negligence - Damages - Personal injuries - Whether breach of duty - Whether plaintiff's conduct dangerous and foolhardy - Whether defendant was employer
Legislation: Workers' Compensation and Rehabilitation Act 1981, Div 2 Pt IV, s 175
Result: Negligence established but no award to be made
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Representation:
Counsel:
Plaintiff : Mr J R Criddle
Defendant : Mr R E Keen
Solicitors:
Plaintiff : Bradford & Co
Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Bankstown Foundry Pty Ltd v Braistina (1986) 65 ALR 1
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hewitt v Benale Pty Ltd [2002] WASCA 163
Roe v Minister of Health [1954] 2 QB 66
Schmitz v Pilpel (1988) A Tort Rep 80-178
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Vunic v The South Australian Housing Trust (1988) A Tort Rep 80-211
Case(s) also cited:
Nil
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1 FENBURY DCJ: This is an action for damages for personal injuries suffered by the plaintiff to his left hand on 6 March 1999. Quantum has been agreed and although raised on the pleadings, contributory negligence was not an issue with which the Court should "concern itself".
2 Shortly put, liability is the only issue. However, that issue has a number of facets. Firstly, the defendant denies that it was negligent or in breach of statutory duty. Secondly the defendant alleges that if it was negligent as alleged, in any event no award of damages can be made in light of the provisions of the Workers' Compensation and Rehabilitation Act 1981. 3 The plaintiff was a right handed man, born in England on 2 April 1959 who had spent the majority of his working life engaged in manual labour of one kind or another. For eight years from 1985 he was employed as a dock hand and labourer. From 1993 he worked as a courier driver until about 1998 and in September or October of that year he registered with a labour hire company known as Integrated Workforce, seeking employment in the transport industry and related industries. Persons like the plaintiff would register with Integrated Workforce and then be hired out to other companies seeking personnel, usually on a short term basis. 4 It appears from the evidence that the plaintiff was employed by Integrated Workforce at all material times. Obviously, however, Integrated Workforce is not a party to these proceedings. 5 As the plaintiff explained he would follow a process of telephoning Integrated Workforce from time to time and enquiring whether they had any work available for him. In December 1998 having received a favourable response and having been given details the plaintiff reported to the business premises of the defendant in Welshpool. He was introduced to the health and safety officer and then the shift supervisor. He was shown around the site. Initially the plaintiff was to attend for one day only but he worked up until Christmas and then after Christmas he was asked to return. He was asked to keep attending on a daily basis until further notice. 6 The defendant was then known as "Commercial Minerals" but later known as "Unimin Australia Ltd". 7 Concerning the nature of the work the plaintiff said that he did:
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"Everything from occasionally driving the forklift when there was no-one else available to drive it, depending on which shift I was on, to sweeping up, to loading pallets, to bagging of chemicals. Who gave you instructions to carry out that work?---The shift supervisor. Did you ever see anybody from Integrated at the premises while you were there – up until the date of the accident?---Not to the best of my recollection. … Did you receive any instructions from anyone at Integrated on how to do your work at the premises?---No." T22/23 8 In early 1999 the plaintiff continued to work at the premises run by the defendant. He worked five days a week but his shifts varied. Apparently the business ran 24 hours a day. The shifts were from 7.00 am to 3.00 pm, 3.00 pm to 11.00 pm and 11.00 pm to 7.00 am. 9 In the middle of February 1999 the plaintiff was given the job of operating the mobile mixing plant. This machine is depicted in a computer generated photograph, Exhibit A1 and A2. It mixes powdered chemicals. 10 Having stated he had never used a machine like the mobile mixing plant before the plaintiff was taken over to it by the shift supervisor and the current operator gave a 10 minute explanation to the plaintiff concerning how the machine was to be used. The plaintiff explained to the Court how the machine operated in the following terms: "The operation of the machine,…involves placing twenty bags of one product and four bags of another product into a hopper and whilst that's being mixed and conveyed to the drum you place the forklift under the chute with two extension bars on it. You then place what is called a bulk bag on the forklift on the straps. You then tie the neck of the bag to the base of the chute, give the mixture time to mix up there, and then open the butterfly valve and the mixture falls into the bag." 11 The butterfly valve is opened by pulling the lever which the plaintiff can be seen doing with his right hand in Exhibit B2. Exhibit B2 shows the bulk bag on the end of the tines of the forklift and the chute at the base of the mixing drum.
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12 The plaintiff was asked about the circumstances of the accident on 6 March 1999, at between 3.00 and 3.30 pm and he explained it as follows:
13 The plaintiff placed his hand up the chute as demonstrated in Exhibit B1 although, of course, it was his left hand not his right hand. He did so in order to feel for any blockages. He felt none and so: "I then took my hand out and placed it on the other side of the butterfly valve because the butterfly valve runs right the way through the chute, and then I felt excruciating pain from my fingers." (T25) 14 The plaintiff was adamant that he made no error in counting the number of bags placed into the mix and in any event he followed a procedure of checking empty bags to make sure. 15 The plaintiff said that he was not aware there were mixer blades within the mixer "in close proximity to the top of the chute" up which he placed his hand. Nobody had told him this. 16 The plaintiff had never seen inside the mixing drum during the two and a half weeks of his employment at the defendant's premises. 17 Not surprisingly, the plaintiff said that if he had known there were rotating mixer blades within the drum he would not have placed his hand into the chute.
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18 Shortly after the accident the plaintiff was asked to demonstrate what he had done which resulted in his injury and photographs that comprise Exhibits B1 and B2 were taken. Some short time prior to trial the plaintiff again attended at the premises during which the photographs Exhibits A1-A3 were taken. It can be seen that the chute on the machine has had the red cowling removed from it during the period. It can also be seen that, in Exhibits A3 and A4, which are photographs depicting the interior of the chute taken from below, in which the butterfly valve is evidence, that there is a metal grill attached just inside the opening of the chute. The plaintiff said this grill was not there on the occasion of his injury.
19 The plaintiff relies upon the fixing of the grill as evidence of post facto steps taken by the defendant in order to remove the risk of injury of the kind suffered by the plaintiff, as being significant evidence of negligence. 20 In cross-examination the plaintiff was asked questions about his skills and experience. He was asked about the information he was given when he commenced employment with Integrated Workforce. He said that he was a general hand, labourer and forklift driver. He could not remember having received any literature relating to occupational health and safety policy from Integrated Workforce and he could not recall signing any document indicating receipt of the same. He stated that he was told by Integrated Workforce that he would work under the supervision and control of Commercial Minerals (the ancestor of the defendant). Specific features of the machine were put to the plaintiff but he denied detailed knowledge of the machine's method of operation. Certain obvious features of the machine were put to him and he appeared to accept what was said. Counsel suggested to the plaintiff that it was patently obvious there were dangerous metal parts moving at the top of the chute that he must have been aware of prior to putting his hand up the chute. The plaintiff never wavered from his view that he did not know this. 21 It seems to me that whereas it can be said that anybody looking at the machine would be aware that there were moving metal parts inside the drum, it would not necessarily be so obvious that those metal moving parts would pass so closely over the top of or across the mouth of the chute itself. The plaintiff agreed that he knew there was a motor which was attached to something inside the machine "which is going to be moving". He agreed he was aware that whatever was moving inside the machine was moving so as to mix up or help to mix up the two substances that had been put into it.
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22 It was then put to the plaintiff that he had attended at the accident scene for a re-enactment at the request of the defendant. An accident report was then completed in which the plaintiff stated:
"Whilst working with the mobile mixer I noticed the contents sticking. I placed my left hand in the bottom of the chute to move the contents off the bottom of the valve. The valve may have moved. I don't remember if I moved the valves or not. 23 It was also put to the plaintiff that in his statement of claim it was pleaded: "That you placed your left hand on the valve lip to brush away a build-up of talcum powder - …on the side of the valve. The valve shut and crushed the fingers of your hand. That's what you said in your original statement of claim is that right?---That's correct." 24 It was then put that the plaintiff had sworn some answers to interrogatories on 15 August 2001 where he gave answers which indicated that he believed there was a blockage in the chute around the valve area. The answers to interrogatories 2, 3, 4, 5 and 6 were tendered by the defendant apparently upon the basis that they constituted inconsistent prior statements about the circumstances of the injury. 25 The plaintiff's attention was then taken to a booklet entitled "Knowing Your Work Environment". The plaintiff said that he had been given a copy of this booklet in February 1999 by the defendant. On p 4 the following appears: "It is the responsibility of all employees to fully understand the equipment and machinery that are used. When in doubt ask and seek clarification. Employees should only use/operate equipment in which they have been trained and authorised to use. Any fault, defect or unusual occurrence observed whilst operating any equipment or machinery should be reported immediately to the supervisor in charge of the work area." 26 The plaintiff was then asked about alleged statements he made to a representative of the defendant named Carol Beard, whilst he was obtaining medical attention at hospital. He did not recall what he had said to her and specifically whether he had said anything to the effect that "he had cut his hand when he pulled it out of the machine quickly and smashed it on something".
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27 In further cross-examination the plaintiff agreed that he put his hand up the chute deliberately and he did so in order to clear what he believed to be a blockage of product so as to "keep the procedure moving". He was unable to say how far he had put his hand up the chute but, as a passing observation, it is obvious he put it sufficiently far up the chute to come into contact with whatever blades there are in the drum mixing up product.
28 It was then put to the plaintiff that he had put his hand up the chute further than he had demonstrated in the photographs, especially Exhibit B1. The plaintiff indicated that he could not recall. Counsel pressed the plaintiff upon the matter but he was not able to assist. As I have said it is obvious the plaintiff must have put his hands sufficiently far up the chute for his fingers to enter the drum and sustained injury from the moving paddles. There is no other explanation for the plaintiff's injuries. 29 It is clear that there are some variations in the account given by the plaintiff concerning how he sustained his injuries and how the accident occurred. But there can be no doubt, in my view, how the accident occurred given what the plaintiff indisputably did with his hand. The variations in account given by the plaintiff are not such as to cause me concern about accepting the plaintiff's evidence on the matter. Accounts given by injured persons to investigating officers, in reports and the like notoriously can vary in minor detail. But I do not think there is any variation in matters of importance. The plaintiff impressed me as a decent, hardworking and honest man. He was injured in the course of trying to ensure that he was carrying out his duties as required by the defendant. I do not think there are any issues of credibility or reliability that are relevant to the dispute in this trial. I accept the plaintiff's evidence so far as it goes, about what happened and why. 30 In making these comments it should be observed that the defendant did not appear to rely upon the sorts of matters raised in cross-examination, for example, inconsistencies in prior statements, with a view to attacking the plaintiff's credit. What the defendant was targeting in the plaintiff's case, it appears, was the deliberateness of the plaintiff's action and the fact that there is no question of inadvertence or carelessness. In short the defendant was attempting to establish in cross-examination that the plaintiff was injured as a result of behaving "in a foolhardy way" and not as a result of inadvertence. 31 Before going on to deal with the issues raised by the defence it is appropriate that I make some further preliminary observations.
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32 Although the plaintiff was employed by Integrated Workforce, and not the defendant, it was not significantly disputed that the relationship between the plaintiff and the defendant was such as required a similar duty of care to that owed by an employer to its employee. Counsel for the defendant in his submissions at T68 said that he assumed:
"A duty of care in a case such as this which is analogous to the duty of care that one would find as between employer and employee. …Hollis v Vabu just about get's us there, in the High Court, but I wouldn't seek to really argue otherwise because to all intents and purposes, the way the evidence has come out we have almost an employment situation – control, supervision etc and so what I have done at paragraph 1 is merely to set out as a starting point the building block for what I'm about to say as to what the duty of care is and the duty of care is to take reasonable care to avoid unnecessary risks of injury to the plaintiff." 33 In all the circumstances of this case the defendant owed a duty to take reasonable care to protect the plaintiff from foreseeable risk of injury which to all intents and purposes is akin to the duty owed by an employer to an employee (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18) but two of the most significant are: 34 There are seven particulars of negligence pleaded in par 6 of the statement of claim - 35 The factual bases for each of these assertions have been established in my view and subject to the issue raised by the defendant about the plaintiff behaving in a foolhardy fashion, to which I shall now turn, I think the defendant is guilty of negligence. 36 The provisions of the Occupiers' Liability Act 1985 WA do not need specific further mention, save to say that I have difficulty in concluding that the machine could be said to have constituted a danger due to the state of the premises. (Schmitz v Pilpel (1988) A Tort Rep 80-178 at 67, 663).
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37 Defence counsel commenced his submissions by reference, in his written submission, to the decision of Roe v Minister of Health [1954] 2 QB 66 where Lord Denning MR said that some things happen through "foolhardiness or misadventure and cannot be visited upon the employer" which was a decision approved by the High Court in Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 201.
38 Counsel then asked: "Is it foreseeable to a reasonable man in the defendant's position that a worker would, deliberately and in a situation which is obviously dangerous and foolhardy; (a) untie the bag and put his hand into the chute; and if so (b) put his arm so far up the chute so as to enter the operating part of the machine (the drum); when to do so (c) involves putting his arm past an existing barrier which can be closed off ie the valve; when (d) not knowing where the blades were in the drum; and (e) when he would know that the machine was in operation." 39 As counsel put it: "The magnitude of the risk and the degree of probability of it occurring are remote in the extreme. This was not a case of the plaintiff taking reasonable care for his own safety nor is it a case of a system of work which could result in a person being dragged into a machine or being injured through his inadvertence, attention wandering or misjudgement in performing his allotted task. … – Counsel referred to Ferralro v Preston Timber Pty Ltd (1982) 56 ALJR 872 and McLean v Tedman (1984) 155 CLR 306. 40 Counsel referred to and obviously followed the line of reasoning set out in Vunic v The South Australian Housing Trust (1988) A Tort Rep 80-211 being a decision of a single judge of the Supreme Court of South Australia. In that case the plaintiff was a gardener labourer employed by the defendant. "While working on a simple wood chipping machine…he lost his middle index finger and most of his thumb when he put his
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hand into the enclosed drum chamber of the machine while the machine was operating. The machine was driving a belt attached to a spindle at the end of the drum. The plaintiff knew that the drum was turning at high speed when he put his hand into the drum chamber; and he knew that cutting blades were attached to the drum. Contrary to established practice and common sense, he set about clearing a blockage in the expulsion chute of the machine without stopping the engine. Before he could clear the blockage he had to unscrew a bolt holding down the expulsion chute and fold the chute back so as to expose the blockage at the bottom end thereof. He expected to find and did find a mass of fibrous or stringy material blocking the chute. When the expulsion chute was folded back, he could see not only the bottom end of the chute but also the open front of the drum chamber which had previously been covered by the bottom end of the chute." 41 In his reasons the trial Judge found that the plaintiff had not put his hand absent mindedly into the drum chamber. He knew the machine was operating. He had worked the machine for several years with other men. He was fully familiar with the way it worked. The trial Judge found that what the plaintiff did was dangerous and foolhardy. He found there was no relevant danger in the machinery itself and no danger in the system which was followed regularly by other workmen. His Honour said: "The risk of injury was introduced by the plaintiff's deliberate decision not to turn off the engine and to put his hand into an area where he knew there were dangerous moving parts. Some risks, and this is one of them, simply cannot be guarded against. This was not 'some inattention or misjudgement by an employee in performing his allotted tasks'…on the contrary it was a deliberate departure from the known instructed and practised manner of performing his allotted task, and close to being a wilful and serious departure which might even have led to a challenge to his right to workers' compensation under the Act." 42 His Honour referred to Bankstown Foundry Pty Ltd v Braistina (1986) 65 ALR 1 where reference was made to the decision of Windeyer J in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 namely: "For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means,
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reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment." 43 It is obvious that the sort of machine that was involved in the Vunic case is far different to that in the case at hand. And in addition the circumstances are different. The plaintiff in this case was far less familiar with the machine than the plaintiff in Vunic and the machine in this case is far less dangerous in its operation. It was pointed out by counsel for the plaintiff that in Vunic's case the guard that was there to prevent injury of the type sustained by the plaintiff had been removed by him before he put his hand into the machine. The plaintiff in Vunic's case knew that the machine was dangerous and he knew he was not meant to put his hand into the area that was guarded. It was submitted that in the case at hand the circumstances were much different and the plaintiff was not a person who was familiar with the workings of the mixing machine, he had not been given any detailed instruction about risks or warning of the danger of putting his hand where he did. Furthermore, the area was not guarded in any relevant sense. 44 In my view the case of Vunic can be distinguished on the facts. As counsel for the plaintiff put it the plaintiff was "conscientious"…"he was concerned to do the best he possibly could for the defendant. He quite clearly didn't want to be seen to be someone that would rush in at each small problem and he considered it was a small problem…" 45 Having considered the assertions put on behalf of the defendant I do not think that the plaintiff was foolhardy in the sense of that word by reference to the Vunic case. The plaintiff's acts were quite deliberate, motivated by conscientiousness, but performed in ignorance of danger. It might be said that he should have realised there might be something moving inside the drum but he had no knowledge at the relevant time. Issues of contributory negligence have not been put before me and so I need make no further comment but I am satisfied on the balance of probabilities that the defendant was guilty of negligence. 46 The second issue raised on behalf of the defendant relates to the provisions of certain sections of the Workers' Compensation and Rehabilitation Act 1981, and in particular s 175. Section 175 has particular relevance in the case because of the effect of the provisions of Div 2 of Pt IV of the Act which relates to constraints on the awards of common law damages available to workers. Put very briefly the entitlements of an injured worker to common law damages from his or her
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employer is limited, constrained, by the provisions of Division 2 Part IV of the Act. In other word, the exposure of an injured worker's employer to pay the worker damages for injuries at common law is limited by the Act. 47 By s 175 of the Act in certain circumstances other entities, not being the employer of the worker concerned, are deemed to be employers of the worker and to be liable to pay compensation to the same extent as would the worker's employer. 48 The question of whether Division 2 Part IV of the Act which imposes constraints on the claims for damages that can be made at common law by workers applies to "deemed employers" (under s 175) as well as "employers" has already been determined by the Full Court of the Supreme Court of Western Australia in Hewitt v Benale Pty Ltd[2002] WASCA 163. Workers "employed" by "deemed employers" suffer the same constraints on common law damages as workers "employed" by employers. That is the effect of the Full Court's decision in Hewitt. 49 The case of Hewitt might be said to provide a complete answer for the defendant to the plaintiff's claim in this case. 50 However, the plaintiff contends that in Hewitt it was agreed for the purpose of s 175 that Benale was a deemed employer of the plaintiff (par 81 – Hasluck J) and further the issue was decided by Heenan J at par 128 by reference to the pleadings to the effect that Benale Pty Ltd was a deemed employer and s 175 therefore applied. 51 It is submitted on behalf of the plaintiff that Hewitt v Benale should not apply because it was agreed or determined that Benale was a deemed employer of the plaintiff and it is not so agreed in this case. In short Mr Criddle submits that the defendant is not the deemed employer of the plaintiff for the purposes of s 175 although, of course, the plaintiff also has contended that the defendant owed a duty of care which was tantamount to that owed by an employer. 52 In dealing with the affect of Hewitt v Benale (supra) counsel for the plaintiff suggested that the case should be distinguished because it was an agreed fact that there was "a deemed employment situation" and that furthermore the remarks made by Heenan J in concluding that were obiter. Counsel went on to say that the plaintiff did not accept that Hewitt v Benale applied in this case because Unimin was not the deemed employer.
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53 Counsel then sought to suggest that, in effect, the defendant in this trial was not the deemed employer but arguably the employer and he then made the following submissions (T93):
"If there had been a conflict between Integrated and Unimin in relation to the responsibility to pay compensation to this worker by way of an application by the plaintiff against both of them in my submission the defendant's defence to any such application would have been 'Look s 175 has no application. We weren't engaged in work that was by or under us and in any event if you look at the definition section its quite clear that the deemed employer in labour hire situations is the employer with whom the worker is originally contracted'. So it would have been a simple matter to say that the two sections are mutually exclusive. Section 175 deals with sub-contract and true sub-contract arrangements which provide for the performance of work, section 5 under the definition of employer deals with a labour hire only situation, and to that extent they are mutually exclusive and in my submission section 175 can have no application to the circumstances of this case. That being the case there is no constraint on an award of damages being made in the plaintiff's favour…" 54 These remarks drew a response from counsel for the defendant where he submitted that if, contrary to the pleaded case, the plaintiff was suggesting that Integrated was not the employer but that the defendant was the employer then the provisions of Division 2 Part IV of the Act would apply in any event. 55 Counsel for the plaintiff then responded as follows:
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deemed employer under the Act. So that's the plaintiff's position. The fact there is employment pro hac vice does not constitute the defendant the legal employer entitling him to the benefits of the Act." 56 I do not accept counsel for the plaintiff's submissions to the effect that the defendant is not entitled to the "benefits of the Act". In par 4(c) of the statement of claim it is asserted that the plaintiff was subject to the "supervision, direction and control of the defendant". Counsel also made submissions to the effect that the defendant was "the de facto" employer of the plaintiff. However, counsel asserts that the defendant is not the legal employer and therefore not entitled to the benefits of the Act. 57 This view of the matter seems to me to be inconsistent with the theme of the relevant provisions of the legislation, but in any event if the defendant was the de facto employer as submitted then it would, but for the legislation, have been liable to pay compensation. I think the provisions of Div 2 Pt IV of the Act would apply. The Parliament has seen fit to constrain the entitlements of injured workers to damages. Precise categorisation of those who "supervise, direct and control" the worker as employer, deemed employer, de facto employer or pro hac vice employer do not seem to me to be to the point. In my view, by reason of the provisions of the legislation, no award of damages can be made to the plaintiff. |