Minchianski v Swanray (No 110) Pty Ltd

[1995] QCA 314

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 238 of 1994

Brisbane
[Minchianski v. Swanray (No.110) Pty. Ltd.]

BETWEEN:

PAUL MINCHIANSKI

(Plaintiff) Appellant

AND:

SWANRAY (NO.110) PTY. LTD.
trading as
"WHITSUNDAY FUEL DISTRIBUTORS"

(Defendant) Respondent

Fitzgerald P.
Davies J.A.

Shepherdson J.

Judgment delivered 01/08/1995

Joint reasons for judgment by Davies J.A. and Shepherdson J; separate concurring reasons by the President.

APPEAL ALLOWED. THE JUDGMENT BELOW IS SET ASIDE AND IN LIEU THEREOF, JUDGMENT IS GIVEN FOR THE PLAINTIFF FOR $231,614 WITH COSTS OF THE APPEAL AND OF BELOW. THE CROSS-APPEAL IS DISMISSED.

CATCHWORDS: PERSONAL INJURIES; employer's liability - whether employer failed to provide safe system of work; whether reasonably foreseeable to employer that injury of the type and in the circumstances in which it was suffered, would occur; whether trial Judge properly took into account the effects on the plaintiff's future earning capacity of injuries suffered prior to the work accident.

Counsel:	Mr. P. Keane Q.C., with him Mr. J. Baulch for the appellant Mr. K. C. Fleming Q.C. for the respondent
Solicitors:	Macrossan and Amiet for the appellant Barry Beaverson and Stenson for the respondent
Hearing Date:	31 May 1995
IN THE COURT OF APPEAL	[1995] QCA 314
SUPREME COURT OF QUEENSLAND	Appeal No. 238 of 1994
Brisbane
Before	Fitzgerald P.

Davies J.A.

Shepherdson J.

[Minchianski v. Whitsunday Fuel Distributors]

BETWEEN:

PAUL MINCHIANSKI

(Plaintiff) Appellant

AND:

SWANRAY (NO. 110) PTY LTD trading as

“WHITSUNDAY FUEL DISTRIBUTORS”

(Defendant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 01/08/1995

The circumstances giving rise to these appeals are set out in the reasons for judgment of Davies J.A. and Shepherdson J.

I agree with their Honours that the appeal should be allowed with costs to be taxed, for the reasons which they give.

In considering the respondent’s cross-appeal, it is necessary to note that the cross-examination which the trial judge refused to allow was not directed to credit but to an issue which the respondent contends arose in this case; namely, the amount which the appellant had previously received for injuries from an earlier accident which had already reduced his income-earning capacity. According to the respondent, proof of that amount was material, and perhaps necessary, to an ascertainment of the income-earning capacity which the appellant lost in the accident for which he is now entitled to damages.

It is unnecessary, on this occasion, to rule that such evidence could never be relevant; for example, if an employee was injured on two or more occasions by the negligence of an employer, findings in litigation between them arising out of an earlier accident might well be material in subsequent litigation arising out of a later accident.

However, that is because a plaintiff seeking damages for personal injuries which cause loss of earning capacity must, ordinarily at least, establish what his or her earning capacity was immediately prior to those injuries; it is by a comparison between his or her earning capacity immediately before and subsequent to the injuries that the loss of capacity from the injuries is ordinarily ascertained: cf. Medlin v. S.G.I.C. (1995) 69 A.L.J.R. 118, 119. While the trial judge’s findings could, and should, have been explained more clearly and comprehensively, his Honour’s reasons indicate that he correctly apprehended this aspect of his task.

Nonetheless, the respondent submits that the amount which the appellant had received in settlement of an earlier dispute was relevant to the purpose of that task. Necessarily implicit in that contention is the proposition that that amount would have warranted, or assisted in forming, an inference with respect to the nature and extent of the appellant’s injuries prior to the accident the subject of this litigation. However, I am unable to discern any logical foundation for that proposition. Accordingly, I agree that the cross-appeal should be dismissed, with costs to be taxed.

Overall, I agree with the orders proposed by Davies J.A. and
Shepherdson J.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 238 of 1994

Brisbane

Before Fitzgerald P.
Davies J.A.
Shepherdson J.

[Minchianski v. Swanray (No.110) Pty. Ltd.]

BETWEEN:

PAUL MINCHIANSKI

(Plaintiff) Appellant

AND:

SWANRAY (NO.110) PTY. LTD.
trading as
"WHITSUNDAY FUEL DISTRIBUTORS"

(Defendant) Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND SHEPHERDSON J.

Judgment delivered the 1st day of August 1995

These are an appeal and a cross-appeal against a judgment dismissing an action for damages for personal injuries. The appellant was injured during the course of his work with the respondent on 22 February 1991. The circumstances giving rise to the injury are as follows. He was, in the course of his employment as a truck driver and distributor of fuel to rural properties, standing at the top of a ladder which was leaning against an elevated farm fuel tank, with the nozzle of the hose, which was to deliver the fuel, in his right hand when the hose jammed on the reel, affixed to the back of his truck, upon which it unwound. In order to unjam the hose, he rotated his upper body to the right, reached back his right arm and pulled the hose towards the tank with a sharp jerk. The pull did not release the jamming of the hose but rather caused the plaintiff to stop his rotation suddenly and to experience severe pain. He argues that his employer failed to provide a safe work practice in that an instruction should have been given to workers that in the event of a jamming of the hose, workers should not attempt to unjam the hose whilst up the ladder, but rather should descend the ladder and unjam the hose at the source of the jam.

The trial Judge found as a fact that the fuel hose jammed occasionally and that the employer ought to have foreseen that such jamming might occur. He further found that the employer should have contemplated that a worker part way up a ladder in the course of delivering fuel who experienced jamming of the hose might do as the appellant did in order to further unwind the hose, and thereby suffer injury.

Notwithstanding these findings, his Honour said that the submission by the plaintiff that "the defendant should have foreseen that one of the comparatively rare occasions upon which the hose would stick would coincide with one of the comparatively rare occasions upon which a driver would miscalculate or underestimate the length of hose he needed" as well as requiring the defendant to "foresee that in order to release the jammed hose, the worker would engage in a rotational pulling or jerking of the hose in order to obtain the additional length required", was "to contemplate absurdities". On the contrary, in our opinion, the fact that the above findings were made have the result that it was reasonably foreseeable to the employer that an injury such as the one suffered, in the circumstances in which it was suffered, could occur.

His Honour concluded that the respondent did take reasonable steps to prevent the risk of injury, this conclusion being based on his view that a satisfactory system of work was in place. This system involved workers walking away from the fuel tanker truck while unwinding from the hose reel an estimate of a sufficient length of hose to enable it to reach the inlet opening of the elevated farm tank before commencing to ascend the ladder. This system involved no instruction as to what workers should do in the event that they miscalculated the length of hose required and became aware of that after partly ascending the ladder.

It is trite law that an employer has a duty towards his or her employees to take reasonable care to ensure that operations are carried on so as not to subject employees to unnecessary risks. Unnecessary risks are those which are reasonably foreseeable and which could be avoided by the exercise of reasonable care. In our opinion, the above findings of facts along with the fact that the risk of injury found by the trial Judge to exist, could have been avoided by the employer by giving an instruction along the lines submitted by the appellant, result in this duty being breached. The greater the risk and the easier the precautions, the greater is the burden to warn and instruct workers and to take positive steps to eliminate unnecessary risks, even if those risks are obvious: McLean v. Teadman (1984) 155 C.L.R. 306.

Accordingly, we would set aside the order dismissing with costs the plaintiff's claim in
respect of this incident and, subject to the defendant's appeal, give judgment for the plaintiff.

The defendant's appeal is based on a contention that the learned trial Judge erred in refusing to allow cross-examination of the plaintiff in respect of compensation received by him upon settlement of a claim for personal injuries caused in a car accident, as the result of another driver's negligence, in October 1990. His claim in respect of the car accident was settled prior to this action, and that settlement probably included an amount reflecting loss of future earning capacity. It is not known however, whether this aspect of the settlement was specifically itemised. The trial Judge held that the amount received in that settlement for future earning capacity was irrelevant. In his reasons for judgment his Honour said:

"in reality a plaintiff is not being compensated for the loss of income. He is being compensated for the physical loss of income earning capacity arising out of the injuries ... what is important to know is what physical consequences flowed from the motor vehicle accident and how they might be distinguished from the physical consequences of the work incident. I must then do the best I can to assess the amount of money which will properly and fairly compensate the plaintiff for the physical consequences of the work incident."

He went on to list all of the injuries and consequent disabilities suffered by the plaintiff following the car accident and then to note all of the injuries and consequent disabilities experienced by him after the work incident. His Honour accepted the evidence of Dr. Redmond who had attributed 7.5% of the plaintiff's 25% total disability to the car accident and the balance to the subject accident. His Honour then reduced the prima facie sum for loss of future earning capacity which he found would be productive of economic loss, from $330,000 to $150,000, mainly on the basis that "the plaintiff was already experiencing periodic difficulty working as a truck driver (due to a prior back condition) and in light of his susceptibility to further injury immediately prior to the (work incident)". His Honour thus rightly attributed some portion of the $180,000 reduction to the car accident injuries, thereby taking into account, in assessing the amount of compensation to be awarded as a result of the work accident, the effects on the plaintiff's earning capacity of the car accident.

It appears from the passages which we have quoted from his Honour's reasons and from other passages in it that he was fully seized of the need to take into account the effects of the car accident and that he did so. It may be doubted whether it would have assisted him in that task to have known how much the plaintiff and those representing the negligent driver in the car accident chose to agree upon as the total damages payable for the plaintiff's injuries in that accident or how they may have apportioned that amount. No error of principle was demonstrated in the learned trial Judge's process of assessment. The cross-appeal should therefore be dismissed.

The judgment below should be set aside. There should be judgment for the plaintiff

for $231,614 with costs here and below.