Nazarri v Gaerth & Molnar Engineering No. DCCIV-99-1641

NAZARRI v GAERTH & MOLNAR ENGINEERING PTY LTD
[2003] SADC 109
Judge Lunn
Civil

On 20 November 1996 the plaintiff’s left foot was injured when the first defendant lowered a mechanical hoist onto that foot. In this action the plaintiff has sued the defendants for damages. The defendants have issued a third party notice against the manufacturer of the hoist claiming contribution. On the eve of trial the claim was settled as between the plaintiff and the defendants. Judgment was entered for the plaintiff against the defendants under Rule 40 for $40,000 plus costs agreed at $30,000. Hence this trial has been confined to the defendants’ claim for contribution against the third party. At the outset of the trial counsel orally intimated an agreement that the third party conceded the reasonableness of the settlement but as between the defendants and the third party any amount to be recovered by the defendants was to be reduced by any finding which I made about the contributory negligence of the plaintiff. (Later in the trial there was some argument about the precise terms of this agreement. It is in the terms recorded in the transcript. On the findings which I later make there are no issues which turn on the disputed parts of the agreement.)
The first defendant (“the defendant”) conducts an automotive workshop in Eudunda, a country town. He has been a qualified mechanic for about forty years and has conducted his own business for about the last twenty years. Prior to the accident the plaintiff was a regular customer in his business.
The third party is a company which has for many years manufactured vehicle hoists. Mr Frank Molnar, its managing director, had designed and modified various types of hoists. In September 1989 it manufactured the hoist in question and shortly afterwards it was sold through Repco to the defendants. It was professionally installed in the defendant’s workshop.
The four post hoist in question is fixed to the level concrete floor of the workshop. There is no pit under it. At the operator’s end there are two vertical metal posts. At its other end, which I will called the front end, there are two further similar vertical posts. Between each set of vertical posts there is a substantial metal cross beam which slots into grooves on the inner sides of the vertical posts. An hydraulic mechanism can raise and lower these cross beams up and down the posts. Between the two cross beams, and at right angles to them, are two metal runners. The ends of the runners sit on the tops of the cross beams. On the operator’s end there are two metal ramps about 800 mms long running from the floor up to the commencement of each runner. When the hoist is in its lowered position a motor vehicle can be driven up these metal ramps and along the runners. It was usual to position such a motor vehicle on the hoist so that its front wheels were at a point on the runners near the front end which had a facility for wheel balancing. On the outside of the right hand post at the operator’s end there was a control box about half way up the post. When standing at the control box the operator could activate the hoist which would then raise the cross beams, the runners and any vehicle on the runners up to the desired height, and sufficient so that access could be obtained to the underside of the vehicle. Similarly the operator would use the control box to lower the hoist back to its unelevated level and the vehicle could then be reversed off the hoist.
The design of the hoist was such that the runners had to be above the floor level by at least the thickness of the cross beams. This necessitated the ramps to enable a vehicle to be driven up to the commencement of the runners. Obviously, there was a potential for serious injury if anything was to be crushed between the cross beams and the workshop floor as the hoist was lowered to its base position, and particularly if it was then bearing the weight of a motor vehicle. This particular type of hoist had brackets inserted at the bottoms of the front posts so that the front cross beam could not be lowered flush to the floor. On one side this produced a gap of 19 mms between the bottom of the cross beam and the floor and on the other side a gap of 25 mms. (The undisputed evidence was that the floor was level and there was no explanation about why this gap was not of a constant height.)
This particular type of hoist had not been designed by the third party but by a large European manufacturer of such hoists. However, the third party had made a number of changes to it and had continued to modify it over the years. In particular on the European version the cross beams in their fully lowered position were almost flush with the floor. The evidence about it is confused, but it seems the third party modified this on at least two occasions. The first was before September 1989 when brackets were inserted to produce a clearance of 25 mms between the bottoms of the beams and the floor. A subsequent modification was made in the early 1990s apparently by increasing the gap by another 25 mms. There may also have been a third increase after 1996.
The higher the cross beams were off the floor in the lowered position the longer the access ramps needed to be. If the ramps were too steep, the underside of vehicles would scrape on the lips of the runners on the operator’s end as they were driven onto the runners or as they were reversed off them. For reasons which I do not understand, and which were not put to the expert witnesses, the second increase in the height of the cross beams by the third party did not result in any alteration to the length of the ramps.
As between the plaintiff and the defendant I generally prefer the evidence of the defendant where there is any conflict between them. The plaintiff, while honest, was vague. Overall the defendant appears to have a better, although not a perfect, recollection of what had occurred almost seven years before.
On 20 November 1996 the plaintiff brought his Falcon utility into the defendant’s workshop to have a new speedo cable fitted. The plaintiff was then wearing Rossi work boots, but no evidence was given about the height of them or the thickness of the sole. The fitting of the new speedo cable necessitated work being done both from above the engine for which the engine bonnet was lifted to its upright position and from underneath which required the utility to be raised up on the hoist. It was driven onto the hoist and positioned so that its front was about level with the front cross beam and with its bullbar, and possibly a small part of the front of the utility, protruding slightly beyond the front cross beam.
The defendant’s work on the utility took about an hour. The plaintiff remained in the workshop while the work was being done. The defendant did not seek to exclude him or to warn him of any potential danger. The defendant did not provide any waiting room for his customers.
When the work was completed the utility was still elevated on the hoist. Its engine bonnet was then open. The defendant went to the operator’s control box of the hoist to activate the lowering mechanism. The plaintiff was then standing about one metre away from the driver’s side of the utility. The defendant activated the lowering mechanism which took about twenty seconds to lower the hoist to its base position. While this was occurring he was looking to his rear at what one of his employees was doing on another job. In this time the plaintiff walked across to the front of the hoist with the intention of pulling down the engine bonnet to its closed position. It is unclear whether he actually put his hand onto the engine bonnet, but he did not close it. In positioning himself to close the engine bonnet he placed the front of his left foot under the descending front cross beam. This beam hit his boot and crushed his big left toe as the thickness of his boot was greater than the gap between the fully-lowered cross beam and the workshop floor. He immediately called out to the defendant to lift the hoist. From where he was then standing at the operator’s box the defendant could not see the plaintiff because of the raised engine bonnet on the utility. The defendant had not invited the plaintiff to close the engine bonnet and was not aware that he was intending to do so.
There was an obvious danger in the plaintiff standing so close to the front of the hoist while it was descending with his utility on it that injury could result if he did not keep his feet clear of the descending cross beams. He inadvertently placed his left foot under the front cross beam by probably only two or three centimetres. It is likely that he was distracted from the potential danger of the descending cross beam by his efforts to close the engine bonnet. However, it was a clear and obvious danger to his feet and a reasonable person in the circumstances would have taken care to ensure that they kept their feet well clear of where the cross beam would meet the floor. Accordingly, I find the plaintiff to have been guilty of contributory negligence in failing to take proper care for his own safety.
A reasonable workshop proprietor in the position of the defendant should have been aware of the potential risk of serious injury to the feet of anyone, whether employee, customer or bystander, who stood too close to the front of the descending hoist. The reasonable proprietor would have excluded customers and bystanders such as the plaintiff from the vicinity of the hoist. There was no particular benefit to the defendant, or to the plaintiff, in the plaintiff approaching close to the hoist, and particularly while it was being lowered. It would have been no hardship to the defendant by either oral instructions and/or written notices to have excluded customers and bystanders such as the plaintiff from the vicinity of the hoist. Furthermore, as the defendant commenced to lower the hoist he knew that the plaintiff was within a metre of the utility. He should have continuously kept the plaintiff under observation while the hoist was being lowered. However, he looked to his rear for another purpose. If he had seen the plaintiff move towards the hoist, and/or if his view of the plaintiff had been obstructed by the raised engine bonnet of the utility, he should immediately have stopped the hoist. For these reasons the defendant was guilty of substantial negligence in the events which caused the plaintiff’s injury.
The defendant pleaded that the third party was also negligent in its design and manufacture of the hoist. It was not disputed that the third party owed a duty of care to the plaintiff in the circumstances, and in any event I find that there was sufficient proximity between them to give rise to such a duty of care. The real issues are the extent of that duty and whether it had been breached.
The relevant legal principles were stated by Mason J (as he then was) in the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 where he said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
The subsequent Australian cases on a designer’s liability for its manufactured products are merely applications of these principles: see Bicer v McDonalds Australia Ltd [2001] NSWSC 218; McDonalds Australia Ltd v Therma Truck Pty Ltd [2002] NSWCA 268; Martin v Stratman (1994) Aust Torts Reports 81-262; Martin v Stratman (1992) Aust Torts Reports 81-194;Thomspon v Johnson and Johnson Pty Ltd [1991] 2 VR 449; Sousaari v Steinhardt [1989] 2 Qd R 477; Shepherd v SJ Banks & Son Pty Ltd (1987) 45 SASR 437.
I accept the expert opinion of Mr Maddern, the engineer retained by the plaintiff and called by the defendant, that it was a reasonable and practicable, and the best, solution to the potential danger of any entrapment of a foot under a cross beam of the hoist to provide a 60 mm clearance between the bottom of the cross beam and the floor. This would involve having to lengthen the ramps to 1280 mms, ie an increase of 480 mms. There was a good deal of cross examination and argument about vehicles with low underbodies not being able to mount the ramps on the hoist if the height of the cross beams was increased to 60 mm. However, I accept Mr Maddern’s opinion that ramps of 1280 mms would have enabled any vehicle which could successfully mount the existing hoist with its 800 mm ramps being able also to successfully mount it after the height had been increased to 60 mms. The third party’s expert, Mr Van Der Loo, did not dissent from this. It is not to the point that there may have been some vehicles with low clearances that could not have successfully mounted either version of the hoist.
Although there was evidence about the 1987 Australian Standard for such hoists and the 1996 Australian Standard, and the differences between them, in the end result nothing turns upon it. While the relevant standard of care is to be assessed at the date of the manufacture of the hoist: Thompson v Johnson (above), it was not shown that subsequent advances in design or technology after 1989 would have made any difference to the conclusion of Mr Maddern. While Mr Maddern only had regard to the 1996 Standard, his evidence was that his conclusion would not have been any different if he had had regard to the 1987 Standard instead of the 1996 Standard.
In his final address counsel for the third party complained that the defendant had pleaded its case on the basis that the clearance should have been 75 mms, but had presented its case at trial on the basis that it only needed to have been 60 mms. What was pleaded in paragraph 22.3.3 of the third party statement of claim was a breach of the 1987 Standard that “the design of the hoist failed to comply with the minimum distance for toe clearance above the ground of 75 mm.” This was not a plea that the distance had to be 75 mm, but merely that that particular design standard had not been adhered to. On the generality of the pleading of the statement of claim I am satisfied that a case based on 60 mm clearance was fairly open to the defendant.
I am satisfied that a reasonable person in the third party’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. The third party must have appreciated that in commercial automotive workshops, home garages and the like people not familiar with the hoist could be in close proximity to it and could have their feet entrapped by the descending cross beams.
The reasonable person would have considered the magnitude of the risk from the descending cross beam to have been substantial as with a motor vehicle on the hoist there would be a major downward force on the cross beams which could cause serious injury or damage to any part of a person, or an object, which was caught between them and a workshop floor. The degree of probability of the occurrence of that occurring is not particularly great, but if and when it did occur considerable damage was likely to result.
There was little evidence about the expense, difficulty and inconvenience of taking the proposed alleviating action of raising the cross beams to 60 mms and consequentially increasing the length of the ramps by 480 mms. Neither the cost of the additional ramps nor the total cost of the hoist were disclosed. However, I am prepared to infer that the costs of the additional materials and the fabrication of the additional lengths of ramp would have been minimal in 1989 compared with the total cost of the hoist and the potential damages which could result from a crushing injury under the cross beams. While the additional 480 mms length of ramp would mean that the whole unit would take up slightly more floor space in a workshop there was no evidence that this would be a particular difficulty or make the hoist impracticable for use by potential operators. From the photographs of the defendant’s workshop it would appear that the additional lengths of ramp could have been accommodated quite readily in that workshop.
Taking into account all of the relevant considerations I find that the third party breached its duty of care to the plaintiff in not designing and manufacturing the hoist in 1989 with a clearance of at least 60 mm between the bottom of the cross beams and the floor. Accordingly, I find the third party to have been negligent.
Various other design options were explored in evidence about other ways of overcoming the problem. However, neither expert thought they were the best answer to the problem. I need not go into them.
Under ss25 and 27A of the Wrongs Act 1936 I need to apportion liability for the plaintiff’s injury on a just and equitable basis between the plaintiff, the defendant and the third party. I consider that the defendant’s negligence contributed more to the occurrence of the accident than that of the plaintiff or the third party. I apportion responsibility as to 20% against the plaintiff, 50% against the defendant and 30% against the third party.
On the basis of the arrangement between the defendant and the third party, the third party is liable to contribute to the defendant 30% of $70,000 (being the total of the plaintiff’s judgment and costs) which means there will be judgment for the defendant against the third party for contribution of $21,000.

[2003] SADC 109

13 August 2003