Masling v George Weston Foods Ltd t/as Kelly's Bakery (Orange) - [2003] NSWSC 740

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CITATION: Masling v George Weston Foods Ltd t/as Kelly's Bakery (Orange) [2003] NSWSC 740

HEARING DATE(S): 16/6/03 - 18/6/03

JUDGMENT DATE:
14 August 2003

JUDGMENT OF: Newman AJ

DECISION: Judgment for the defendant

CATCHWORDS: Negligence - master and servant - duty of care - electric shock - res ipsa loquitur

CASES CITED: Anchor Products Ltd v Hedges (1966) 115 CLR 493
Barkway v South Wales Transport Company Ltd [1948] 2 All ER 460
Byrne v Boadle (1863) 2 H&C 722
Davis v Bunn (1936) 56 CLR 246
GIO v Frederichberg (1968) 42 ALJR 198
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Piening v Wanless (1968) 117 CLR 498
Railways Commissioner v Corben (1939) 39 SR 55
Scott v London and St Katherine Docks Co (1865) 3 H&C 596
Schellenger v Tunnel Holdings Pty Limited (2000) 200 CLR 121

PARTIES :
Tina Louise Masling (Plaintiff)
George Weston Foods Limited t/as Kelly's Bakery (Orange)

FILE NUMBER(S): SC 20823/01

COUNSEL: G. Miller QC / J. Wynyard (Plaintiff)
P. Blacket SC / W. Austron (Defendant)

SOLICITORS: Boyd & Longhurst (Plaintiff)
Hicksons (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

14 August 2003

20823/01 – Tina Louise MASLING v GEORGE WESTON FOODS LTD t/as KELLY’S BAKERY (ORANGE)
JUDGMENT

1 HIS HONOUR: This is a claim for damages brought by the plaintiff against her former employer. The defendant has denied liability.

2 Prior to 2 November 2000 the plaintiff had been employed by the defendant at its bakery at Peasley Street, Orange as a breadhand from January of 2000. Indeed before taking up her duties with the defendant, the plaintiff had in fact spent a short period in the defendant’s employ.

3 The plaintiff’s case was that at about 3.20 pm on 2 November 2000 she received an electric shock while turning off an electric oven installed in a kitchen used by employees of the defendant to obtain refreshment.

4 At the trial there was no issue that something did happen to the plaintiff at the stated time. Equally there was no issue that when the incident occurred the plaintiff was in the kitchen and that there was an electric stove installed in that room.

5 There were, however, a number of issues relating to the incident. First, there was an issue as to the type of stove installed in the kitchen. Second, there was an issue as to what in fact happened to the plaintiff at the subject time.

6 The plaintiff’s case was either the stove itself was defective in that there was a defect in the insulation from the active conductor to the exposed metal of the stove and second, that the earthing of the appliance or of the earth return in the building where the appliance was being used, was defective. Again, there was an issue as to whether the plaintiff had established either of these two matters.

7 The plaintiff claimed that she sustained a disturbance to her heart rhythm, which required the insertion of a pacemaker. Secondly, she claims that she has suffered continuing incapacity as a consequence of that disturbance and problems associated with the operation of the pacemaker.

8 An issue emerged as to the configuration of the oven itself. The plaintiff described the oven as follows:-

9 A similar description was given by a fellow employee, James Rodney Bush, particularly as to the positioning of the knobs on the implement. Mr Bush described it as follows:-

10 One Michael Arthur Baragry when shown an oven claimed by the defendant to be the subject implement stated that the implement he thought he had seen in the employees’ kitchen was a different colour to the implement shown to him.

11 One Lee James Barter also denied that the stove produced by the defendant was the subject implement. In chief he said this:-

12 However, despite the denial of the plaintiff and the witnesses I have nominated, I have no doubt that the stove produced by the defendant was in fact the subject stove. I find this because I accept the evidence given in the matter by Mr Bernard Anthony Schell to be entirely acceptable on this point. Mr Schell deposed that the subject stove was an Atlas brand. He had removed it from premises previously operated by the defendant at Belfield in Sydney to Orange in February of 1993. He and his wife had used the stove while they were living in a shed on a property they owned while their residence was being built. Thereafter the stove had been stored in a shed on his property. Following a request made for a heating device for food by a member of the staff, Mr Schell had brought the stove into the premises of the defendant at Orange on the Sunday prior to the incident involving the plaintiff.

13 The stove was also subject to identification by the electrician who had carried out tests on it prior to it being put into use and after the incident, namely Steven John McGrath. Again, I find Mr McGrath to be an honest and reliable witness. Accordingly, as I have said, I have no doubt that the implement produced by the defendant and entered into evidence was in fact the stove involved in the subject incident.

14 The importance of this finding will be illustrated later in these reasons because it was this stove which was tested not only by Mr McGrath, but also a Workcover inspector, Kenneth Evans, and by Dr KA Walshe, an electrical engineer, who was qualified by the defendant. As I have indicated I will return to the thrust of their evidence later in these reasons.

15 I turn then to the subject incident. The plaintiff deposed that during her lunchbreak she had left the defendant’s premises and had driven her car to a shop some two blocks away to purchase a kebab. She then drove back to the defendant’s premises where she ate the kebab in the back dock area of the complex. She then washed her hands and commenced walking back to her work station. The plaintiff deposed that having completed her lunchbreak she was returning to her place of employment at the defendant’s premises. In so doing she was required to pass the door of the kitchen in which the stove was situated. As she did so she smelt what she believed was the odour of pies burning in the subject oven. In chief she deposed that the following events then occurred:-

16 Immediately following this incident she told a fellow employee, Mr Darryl Wilson, who had walked in through the crib room door what had happened.

17 Under cross-examination the plaintiff remained adamant that the knob or dial she touched was on the front of the implement and not on the top. She thus continued her denial that the oven produced in evidence by the defendant was not the one she touched.

18 Later in cross-examination the plaintiff was asked to describe exactly how she grasped the knob in question. The following exchange occurred:-

BLACKET: We need to record that for the transcript.

19 When taken to this topic in re-examination, the plaintiff’s evidence was as follows:-

Q. What is called the Thenur process? That thick process underneath the base of your thumb?

A. Yes.”

20 After reporting the incident the plaintiff was ultimately taken to Orange Base Hospital by Mr Schell. After admission she was diagnosed as having a heart block which caused her to be admitted as an in-patient.

21 She came under the care of Dr David Amos, Cardiologist.

22 He attributed the condition of heart block to the episode which had occurred shortly beforehand at her place of work. He described the condition as being a possible but rare complication of electrocution.

23 After two weeks of cardiac monitoring she was referred to the Royal Prince Alfred Hospital where a dual chamber pace maker was inserted on the 16 November 2000. The plaintiff remained under Dr Amos’ care until the 4 October 2001.

24 On that day, having reviewed the plaintiff’s symptoms and echocardiac studies, Dr Amos came to this conclusion:-

As a final summary I don’t feel that there is enough evidence to say that the electrocution has been the cause of her cardiac dysfunction. If she had a tachycardia related myopathy then it should have resolved by now as the pacemaker has effectively been inactive for some time. I think that it is almost certain that she had an underlying cardiomyopathy and I have tried to give her the benefit of the doubt until now.

25 Following the expression of those views to the plaintiff by Dr Amos the plaintiff abruptly left Dr Amos’ care.

26 She then came under the care of another Orange based cardiologist, Dr Richard Cranswick. I shall return to views expressed by Dr Cranswick later in these reasons.

27 The plaintiff has been seen by a number of specialist cardiologists on behalf of the legal representatives for both parties.

28 Dr George Michell, who saw her on 1 August 2001, received a history which was consistent with the evidence the plaintiff gave at the hearing. Dr Michell made inter alia the following observations:-

…in my search for literature I have been unable to find any reference to heart block having been induced by an electric shock.

29 Later he observed:-

In summary I do believe that there is an association between the electric shock and this lady’s heart block although as I said earlier I cannot find any documentation for this. However it does seem to me to be too much of a coincidence that heart block was found following her being electrocuted.

30 The somewhat muted support given to the plaintiff’s case by Dr Michell is not shared by Prof Michael O’Rourke. He saw the plaintiff on the 21 November 2001. Prof O’Rourke having examined the reports including the relevant hospital notes:-

It must be very unusual for an electric shock to cause a permanent defect in atrio-ventricular conduction, with onset of heart block. There is no doubt that Ms Masling has first degree heart block at present and had a higher degree of heart block in the past while in hospital. From the records that I have seen no extreme bradycardia has been documented and there has been no functional requirement for electronic pacing. I cannot be sure that Ms Masling was indeed “electrocuted”. One would expect that a severe electric shock would have created a more dramatic immediate problem with burning and loss of consciousness had a cardiac arrhythmia occurred at the time. Ms Masling showed me signs on her hand and leg which she said had followed the episode but I did not recognise these as being unusual features suggestive of any previous burn and they were not so recognised at the time. It is possible that Ms Masling has experienced an electric shock at another time when repairing her car but she denied this although she has told her sons who sometimes help her to be very careful when assisting with the mechanics of the car.

It appears that the initial echocardiogram at Orange Base Hospital was normal but that an echocardiogram in May 2001 showed evidence of moderately severe left ventricular dysfunction consistent with cardiomyopathy. At this time she was commenced on the Dilatrend and Avapro which she continues to take now. Dr Amos reports that her echocardiogram had shown return almost to normal by the 3rd July, though in August he apparently told Ms Masling that she had suffered from a virus (presumed viral cardiomyopathy).

I cannot be satisfied that Ms Masling has any symptoms currently related to her heart or that would prevent her from working. I cannot be sure that she did indeed receive an electric shock at work nor that if such a shock did occur that this would have caused a cardiac conduction disturbance for which she ultimately received a cardiac pacemaker.

31 The doubts expressed by Prof O’Rourke were taken up by Dr Richard Cranswick. In a report dated 13 June 2003 Dr Cranswick observed as follows:-

I refer you to page 3 of the letter, again from St Vincent’s Clinic, Professor Michael O’Rourke to Ms Ewa Sarolis dated 28th November 2001 under “Opinion”, a third of the way down the first paragraph. “From the records that I have seen no extreme bradycardia has been documented and there has been no functional requirement for electronic pacing. I cannot be sure that Ms Masling was indeed “electrocuted”.” I have not had access to ECG strips or indeed the full hospital notes from Orange Base Hospital. I note in fact that the discharge summary suggests first degree heart block, arrhythmia secondary to electrocution, transfer to Royal Prince Alfred Hospital with first degree heart block.

32 The doubts expressed by Doctor’s Cranswick and Amos and by Prof O’Rourke are confirmed by the report of an expert electrical engineer Dr K Walshe who was qualified by the defendants. Dr Walshe who carried out test on the subject oven and indeed on the switch to which the oven was plugged concluded as follows:-

Thus it seems highly probable that Ms Masling experienced an electrostatic discharge from her body to the oven. Electrostatic discharges whilst surprising and possibly modestly painful do not constitute a health hazard in normal people. If a person has a tendency to heart arrhythmia the application of a substantial electrostatic discharge might trigger such an event. It should be noted that electric fences used to contain cattle and horses etc operate at very high voltages (<10,000 volts) but due to the low charge they are able to deliver do not constitute a health hazard.

Everybody will experience an electrostatic discharge from time to time. In contrast it appears on evidence to have been impossible for her to have received an electric current shock as alledged [sic].

33 Earlier Dr Walshe had concluded that what had happened to the plaintiff when she touched the oven was that she suffered an electrostatic shock. An electrostatic shock involves a charge passing from the human body to an object. Not the reverse. In so concluding Dr Walshe relied upon an account of the plaintiff’s movements during her lunch break up to and including her entry into the subject kitchen and her switching off the oven, which was consistent with the plaintiff’s evidence at the trial.

34 He came to this conclusion having carried out an examination of the subject oven in which he could find no fault with it. Furthermore Mr McRae found no fault with it nor did the Workcover inspector Mr Evans.

35 However the matter does not end there. The plaintiff’s case receives support from Associate Professor Grantham, another electrical engineer. He concluded as follows:-

With electric cookers an electric shock situation requires two defects to be present. Firstly there has to be a defect in the insulation from the active conductor to the exposed metal, and secondly the earthing of the appliance, or of the earth return in the building where the appliance is used, has to be defective.

On the basis of the information provided there is evidence to suggest that the insulation from the active conductor to the exposed metal was defective and this became evident after one of the heating elements had been operating for a short period.

The test carried out by Mr McGrath indicate that the earthing of the cooker and of the system to which it was connected was satisfactory. However, some of the details of precisely how the tests were carried out and the actual instrument readings are not given and it may be of benefit to see the actual notebook entry of the tests and results.

36 Having subsequently seen Dr Walshe’s report, Prof Grantham saw no reason to change his view. However, in so concluding it must be noted Prof Grantham did not himself test the machine. His criticisms as contained in his report were levelled at the testing carried out by Mr McGrath, Mr Evans and Dr Walshe. He also relies upon lay evidence in the matter as reported to him which was indicative that the switch in which the stove had been plugged in question had been changed prior to Dr Walshe carrying out his tests. I should say at once that the evidence in the matter does not support such a conclusion – indeed the evidence supports the contrary conclusion. In particular, as I have already mentioned, I found Mr McGrath to be an honest witness. Additionally, I find, accepting his evidence as I do, that he competently carried out all tests on the subject implement.

37 Furthermore he is of the view that the plaintiff’s palm came into contact with the exposed metal of the oven – a matter which the evidence I have quoted above does not support.

38 Senior counsel for the plaintiff did not rely alone upon Prof Grantham’s evidence in support of his case. He also submitted that the evidentiary doctrine of res ipsa loquitur could be raised on behalf of the plaintiff. Essentially it was his submission that the facts of the case led to only one conclusion namely that the plaintiff’s injury must have arisen as a consequence of the breach by the defendant of its care to provide safe equipment for the use of the plaintiff.

39 His submission was that had the stove with the power supply, including the earth system of the room in which the oven had been located, been in good and adequate condition and been properly tested, an incident such as that which befell the plaintiff would not have occurred. He submitted, relying upon what had fallen from the High Court in Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 that the principle still stands that if in regard to matters which are not within the ordinary experience of the laymen, events occur which cannot otherwise be explained but that if they were to occur there must be negligence, then the concept applies.

40 In Schellenberg Gleeson CJ and McHugh J at 132 observed that the term res ipsa loquitur (the thing itself speaks) appears to have been first used in a negligence context by Pollock CB during argument in Byrne v Boadle (1863) 2 H&C 722. There at 728 the Chief Baron in his judgment observed:-

A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous.

41 As Gleeson CJ and McHugh J pointed out in Schellenberg some two years after the decision in Byrne v Boadle, Erle CJ enunciated the basis of the principle of res ipsa loquitur in Scott v London and St Katherine Docks Co (1865) 3 H&C 596 at 601 where he said:-

But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

42 It follows therefore that the circumstances of the accident may offer evidence of negligence (see Piening v Wanless (1968) 117 CLR 498; GIO v Frederichberg (1968) 42 ALJR 198; Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 499-500).

43 In Railways Commissioner v Corben (1939) 39 SR 55 at 63 it was observed in this court that:-

If something occurs which causes physical injury to a person or his property, and is of such a kind that it would not ordinarily…happen unless somebody had been negligent and it has been proved that all the relevant surrounding conditions were under the control of the defendant, this supplies evidence from which, if it unexplained, it may be inferred that the occurrence was caused by negligence for which the defendant is responsible not withstanding that the plaintiff is unable to point to any specific act of negligence.

44 However as Gleeson CJ and McHugh J pointed out in Schellenberg at 132-133 that the principle is not a distinct substantive rule of law but an application of an inferential reasoning process, and that the plaintiff bears the onus of proof of negligence even when the principle is applicable.

45 Again as Gleeson CJ and McHugh pointed out in Schellenberg there is a divergence between Australian and English decision as to the scope and effect of the principle of res ipsa loquitur. In Australia the proof of such a case merely offers evidence of negligence and does not shift the onus in law of disproof of the plaintiff’s case to the defendants (see Davis v Bunn (1936) 56 CLR 246; Mummery v Irvings Pty Ltd (1956) 96 CLR 99). In England the onus of proof is shifted. See for instance Barkway v South Wales Transport Company Ltd [1948] 2 All ER 460 at 471).

46 Ultimately Gleeson CJ and McHugh J concluded at 134 as follows:-

…while res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident.

47 In Schellenberg in dealing with the question of absence of explanation Gleeson CJ and McHugh J stated at 136:-

Res ipsa loquitur

Mummery v Irvings Pty Ltd

does not happen

Once the cause of the external event is identified, the question becomes whether the plaintiff has proved that that cause was the product of negligence.

48 Later under the heading “occurrence of such a kind that it ordinarily does not occur without negligence” their honours stated with approval what had fallen from the High Court in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 117. In Mummery v Irvings Pty Ltd, Dixon CJ, Webb, Fullagar and Taylor JJ stated that in that case:-

[I]t is difficult, if not impossible, in these circumstances to attribute the accident to some act of negligence on the part of the operator. If the question is posed ‘Was the accident such as in the ordinary course of things does not happen if those who have the management use proper care?’ the answer, on the evidence in the case, must be ‘We simply do not know.’ One may conjecture but cannot as a matter of inference attribute negligence to the respondent’s foreman.”

49 Gleeson CJ and McHugh J concluded:-

The courts have affirmed time and again that res ipsa loquitur is merely a mode of inferential reasoning and is not a rule of law…the fact that the plaintiff falls outside of the “proper scope” of the rule does not mean that he or she may not avail himself or herself of inferential reasoning.

50 Here there is an explanation which arises on the evidence which is consistent with the accident happening in the absence of any breach of duty of care by the defendant. That is that the plaintiff experienced an electrostatic charge i.e. a charge which occurred because of the movement of static electricity from her body to the stove rather than an electric shock in which the charge would have passed from the stove to her. The medical evidence which I have cited above, particularly the evidence of Prof O’Rourke, is in my view strongly indicative that the plaintiff did not suffer an electric shock as a consequence of her touching the stove at the subject time. Such is the cogency of the evidence pointing to an alternative explanation of the subject accident other than an electric shock that I am of the view that the concept of res ipsa loquitur has no application in this case.

51 I have found this to be a very troubling case. As I said at the outset there was no issue that something happened to the plaintiff in the defendant’s crib room at the subject time. Equally since then the plaintiff has undergone a great deal of suffering. Unfortunately for the plaintiff there are a number of matters which I believe stand squarely in her way.

52 First, is the fact that I accept the evidence of Mr McGrath and Mr Schell. In other words I find that McGrath did in fact test the device both before and after the subject incidence and also carried out the test of the switch into which the stove had been plugged. I accept his evidence that there was no fault to be found with any of the implements he tested. Second, the medical evidence which I prefer is that of Prof O’Rourke. Prof O’Rourke’s view is shared by the plaintiff’s current treating doctor, Dr Cranswick. The absence of strong support for the type of injury contended for by the plaintiff by other doctors does not diminish my confidence in the views of Prof O’Rourke. I should add that I have read and considered the reports of all medical practitioners tendered in the case, including those of practitioners whom I have not mentioned in these reasons. Third, the fact that I accept Mr McGrath’s evidence means that the views expressed by Dr Walshe as to what happened are in my view to be preferred to those of Prof Grantham. In this regard I also refer to the assumptions made by Prof Grantham which, as I have stated earlier, I do not accept. In other words in my view the evidence supports the proposition that the plaintiff did not suffer an electric shock in the subject accident but rather the accident arose as a consequence of the transmission of an electrostatic charge from the plaintiff’s body to the stove. That being so the defendant cannot be in breach of its duty to the plaintiff.

53 In the light of these findings I am driven to the conclusion that in this matter there must be a judgment for the defendant.

**********

Last Modified: 08/18/2003

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Citations

Masling v George Weston Foods Ltd t/as Kelly's Bakery (Orange) [2003] NSWSC 740

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

0

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18

Piening v Wanless [1968] HCA 7

CITATION:	Masling v George Weston Foods Ltd t/as Kelly's Bakery (Orange) [2003] NSWSC 740
HEARING DATE(S):	16/6/03 - 18/6/03
JUDGMENT DATE:	14 August 2003
JUDGMENT OF:	Newman AJ
DECISION:	Judgment for the defendant
CATCHWORDS:	Negligence - master and servant - duty of care - electric shock - res ipsa loquitur
CASES CITED:	Anchor Products Ltd v Hedges (1966) 115 CLR 493 Barkway v South Wales Transport Company Ltd [1948] 2 All ER 460 Byrne v Boadle (1863) 2 H&C 722 Davis v Bunn (1936) 56 CLR 246 GIO v Frederichberg (1968) 42 ALJR 198 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Piening v Wanless (1968) 117 CLR 498 Railways Commissioner v Corben (1939) 39 SR 55 Scott v London and St Katherine Docks Co (1865) 3 H&C 596 Schellenger v Tunnel Holdings Pty Limited (2000) 200 CLR 121
PARTIES :	Tina Louise Masling (Plaintiff) George Weston Foods Limited t/as Kelly's Bakery (Orange)
FILE NUMBER(S):	SC 20823/01
COUNSEL:	G. Miller QC / J. Wynyard (Plaintiff) P. Blacket SC / W. Austron (Defendant)
SOLICITORS:	Boyd & Longhurst (Plaintiff) Hicksons (Defendant)