Muir v Austbelt Splicing Services Pty Ltd

[1995] QCA 194

IN THE COURT OF APPEAL	[1995] QCA 194
SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1994

Brisbane

Before McPherson J.A.
Moynihan J.
Ambrose J.

[Muir v. Austbelt Splicing Service P/L.]

BETWEEN

ROBERT MICHAEL MUIR

(Plaintiff) Respondent

AND

AUSTBELT SPLICING SERVICES PTY. LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 23rd day of May 1995

The principal questions in issue on this appeal are the appellant defendant's liability for the injuries sustained by the respondent plaintiff, and apportionment for contributory negligence on the plaintiff's part, which was fixed by the trial judge at 10%. In addition, there is a further question concerning the deductibility of part of a lump sum payment to the plaintiff as worker's compensation for permanent partial disability he has suffered in consequence of the accident.

On 24 October 1990 the plaintiff, who was employed by the defendant, was engaged in assisting in repairing a coal conveyor belt at the Dalrymple Bay coal loading facility. The conveyer belt was made of rubber with steel wire reinforcing incorporated in it. It was approximately a kilometre in length and of some unspecified dimension, probably of the order of 2m. or more, in width when flattened out. It was flexible but supported on either side and underneath by rollers mounted on stanchions. When in use it assumed a trough-like or v-shaped formation to cradle the coal it was carrying.

From time to time the conveyor belt sustained wear or damage requiring repair, which was carried out by the defendant as a contractor using its own vulcanising machine.

The process involved the application of glue which was baked or "cooked" in the machine under conditions of heat and pressure. To do this, the machine was placed athwart and around the section of the belt requiring attention, so as to raise it up and flatten it out. At the point where the section of the belt undergoing repair emerged from the machine, it remained flat and declined at an angle from the machine down to the level of the remainder of the belt, where, after some distance, it gradually resumed its trough- like formation.

The plaintiff injured his leg when he lost his footing and fell in the course of crossing the belt from one side to the other in order to attend to his work. He placed his foot on a portion of the belt which angled down from the machine instead of on the part where it was flat and level.

His evidence was that there were two reasons why he chose that point to stand and cross. One was because he wished to stay near the superstructure of the machine in order, if necessary, to use it to steady himself as he moved across the belt. The other was that there was water lying on the flat part of the belt, and he was concerned that it would be slippery underfoot. Water was introduced to cool the section of the belt under repair after it had been heated to glue and vulcanise it. The water passing through the machine wet the belt. Some of it ponded and stayed on the level portion of the belt, while the rest of the water poured off at one side of the machine, where it made the ground muddy.

The plaintiff assumed that the presence of water on the belt would make it slippery to stand on. That was an assumption which corresponds with ordinary human experience of wet surfaces. For that reason the learned trial judge found that the plaintiff acted reasonably in avoiding the flat and wet part of the belt, and in seeking to cross it elsewhere. There was expert evidence at the trial which demonstrated, somewhat surprisingly it may be thought, that wetting the surface of the belt did not in fact make it slippery, or increase its potential to cause a person who stood on it to slip, at least if he was wearing boots of the kind used by the plaintiff. He could, had he known it, therefore have crossed safely over the belt by standing on the part where the water was lying, instead of choosing as he did to step on a part of the belt which was dry but downwardly inclined.

Unfortunately, the plaintiff was never told it was safe to stand on the wet part of the belt, and it was never demonstrated to him that he could safely do so. Had that been done, it seems likely that the injury would never have happened. It was the duty of the defendant as his employer to provide a safe system of work and, at least in that respect, it failed to discharge its duty. Indeed, if the time, cost and effort in testing the effect of water on the belt for the purposes of trial had been applied before the accident, instead of only after it, the injury could have been avoided.

As it is, we did not understand the defendant on appeal to be directly contesting the finding at trial that the plaintiff had been acting reasonably in assuming that it was not safe to stand on or cross at the place where the belt was wet. What was said was that the plaintiff could have avoided the imagined difficulty by moving a few metres along to another place where the belt was flat and dry, and crossing safely at that point.

It was because of his failure to do so that his damages were reduced by 10%. On appeal it was argued that a reduction of 10% was not enough. On one view perhaps it was not. But occasions on which an appellate tribunal will interfere with a discretionary apportionment in a case like this are confined to those in which some relevant matter has been disregarded, or some irrelevant factor has been taken into account, or the apportionment arrived at is shown to be manifestly erroneous. Nothing like that is demonstrated here. The exigencies of the plaintiff's work required that he cross over the belt on various occasions in the course of assisting his co-worker in the vulcanising process. In evidence his estimate was that he had previously done so without mishap some 120 times using the same procedure as he adopted on 24 October 1990. The natural human tendency to take the shortest route available no doubt made it more or less inevitable that the plaintiff would cross over where and how he did; but it was the duty of his employer to eliminate that risk as far as practicable by instructing him not to do it and advising him of alternatives. The defendant could readily have demonstrated to the plaintiff that the wet surface of the belt presented no risk as a place to stand on; and it could to some extent have improved the surrounding working area by discharging the excess water further away from the conveyor belt. Not having done either of these things, it cannot now charge the plaintiff with a blameworthy disregard for his own safety in carrying out his duties assiduously without himself investigating an alternative but longer and more time-consuming route for crossing the belt.

In the result, we do not think that we can properly interfere with the apportionment of responsibility arrived at by the trial judge.

The other matter raised on the appeal concerns the amount deducted from the damages awarded, in order to take account of the lump sum benefit received by the plaintiff as a workers' compensation payment for the permanent partial disability of the leg from which he now suffers. The Orthopaedic Board assessed the disability at 20%. In consequence, the lump sum amount he received as compensation was fixed under the relevant schedule at $10,306. Section 9A(1)(a) of the Workers' Compensation Act 1916-1982, in the form in which it stood at the relevant time, requires that the damages an employer is liable to pay for breach of common law duty to an employee are to be reduced by the total amount of compensation to be paid from the Workers' Compensation Fund constituted under the Act. The final paragraph of s.9A(1) provides that the court by which the damages are awarded "shall, upon the application of the Board, worker or employee, determine the total amount of compensation prescribed by this Act that is to be paid from the Fund in respect of such injury, and that determination shall be binding on the Board and the worker".

The provision has been the subject of consideration by the Full Court on two occasions in the past. In Lansberg v. Burns Philp & Company Limited [1991] 2 Qd.R. 642, and in Fechner v. Yerovich [1993] 1 Qd.R. 249, it was held that it is for the court to determine the total compensation "that is to be paid from the Fund" in respect of the injury. The amount in fact paid by the Board is not necessarily determinative of the amount to be deducted from the damages awarded. The reasoning in those two cases was not challenged on this appeal. Rather it was argued that, in the case of a lump sum payment of workers' compensation under the Act, as distinct from weekly compensation payments considered in those decisions, the court was bound to reduce the damages by the amount of the compensation in fact received from the Fund. That was said to be so because the lump sum amount was fixed by the Act on the basis of the percentage disability assessment made by the Orthopaedic Board, and under s.9A(1) it was therefore the total amount of compensation "prescribed by this Act" in respect of that injury.

The difficulty of accepting the appellant's argument is that s.9A(1) plainly speaks throughout of the injury in respect of which the damages are awarded. In doing so it tends to assume that it is identical with the injury for which the workers' compensation payment was received. In most cases, but not in all, the assumption is no doubt correct, but the present case is an instance where it is not. The Orthopaedic Board's assessment of a 20% permanent disability was based on the condition of the plaintiff's leg resulting from the impact of successive and separate injuries which he had suffered. Both injuries were sustained by the plaintiff in the course of his employment with the defendant; but it was only the injury caused by the incident on 24 October 1990 that was the subject of the action and the judgment for damages from which this appeal is brought.

The result is that under s.9A(1)(a) the damages awarded in respect of that injury fell to be reduced only by the amount determined by the court to be paid from the Fund as workers' compensation in respect of the same injury and not of the combined impact of that and some other injury as well. The evidence suggests that the other injury was sustained in April of the same year (1990) as the injury for which damages were awarded. The later injury in October 1990 therefore affected a leg already to some extent disabled by a degenerative condition produced by the earlier injury. That was a matter which the learned trial judge specifically took into account in his assessment, which he did by discounting the damages he awarded for the plaintiff's future loss.

When his Honour came to make the reduction required by s.9A(1), he rejected a submission by counsel for the plaintiff that none of the lump sum payment of $10,306 received as workers' compensation for the plaintiff's permanent partial disability should be deducted from the damages. In the end, he reduced the amount of damages awarded by an amount equal to only half of the lump sum payment of $10,306 received as workers' compensation for permanent partial disability. In doing so, he remarked that otherwise the Board's obligation to pay the worker for work-related injuries, irrespective of the employer's common law liability for damages, would be negated.

It was argued by the appellant here that the evidence about the earlier injury was insufficient to enable the trial judge to make any reduction in the amount of $10,306 that was to be deducted from the damages. It was submitted that there was nothing to show that any part of that lump sum was paid in respect of an injury other than that sustained on 20 October 1990 for which the damages were awarded. It is, however, clear that weekly compensation payments ceased only as late as 30 August 1991, and it is a fair inference that it was the date when the lump sum payment was made. It would be astonishing if the Orthopaedic Board's assessment at or shortly before that date had somehow succeeded in excluding the permanent partial disability arising from the earlier injury in April 1990. There is every reason for supposing that the Board's assessment related to the permanent disability resulting from the combined effect of both injuries.

In making his determination under s.9A(1), the learned trial judge was obliged to do the best he could on the evidence before him. We are far from being satisfied that his conclusion of fact was wrong.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1994

Brisbane
[Muir v. Austbelt Splicing Service P/L.]

BETWEEN

ROBERT MICHAEL MUIR

(Plaintiff) Respondent

AND

AUSTBELT SPLICING SERVICES PTY. LTD.

(Defendant) Appellant

McPherson J.A.
Moynihan J.

Ambrose J.

Judgment delivered 23/05/95

Reasons for judgment by the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS	NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - Duty of employer to provide a safe system of work - Whether reasonable for plaintiff to take shortest route available to him and whether employer should have instructed him not to do so - Whether appellate tribunal will interfere with a discretionary apportionment - Amount to be deducted from damages awarded to take account of lump sum workers' compensation payment - Section 9A(1)(a) Workers' Compensation Act 1916-1982.
Counsel:	W. Campbell for the appellant A. Mellick for the respondent
Solicitors:	Beckey Knight & Elliott for the appellant S.R. Wallace & Wallace for the respondent

Hearing Date: 5 May 1995